Tuesday Tips

On this morning’s run, I realized that I haven’t blogged in a while.  I tried to fool myself into thinking that I hadn’t had time.  However, I realized that blogging is no different than running, staying in touch with friends & family, or anything else that we tell ourselves we don’t have the time to do: it’s not so much that we don’t have the time, it’s that we don’t make the time.  So, in the middle of a gorgeous morning run, I vowed that the day would include a blog post.

Alas, too distracted by the perfect running weather, no topic popped to mind.  A few minutes ago, however, my brother texted to ask which steak tips I buy from the meat market that’s near my condo.  Somehow, thinking of steak “tips” got me thinking that I should post a blog with some quick tips on legal ethics.  Especially with the opportunity for an alliterative headline.

What follows is an old blogger’s trick when no original content jumps to mind: a potpourri of links to other sources, each loosely related to professional responsibility.

Reregulation

I’m interested in the emerging concept of “re-regulation.”  In a nutshell, the concept embraces reforming and revising the traditional system of legal regulation to spur innovation and to increase access to legal services. I first mentioned re-regulation here, a post in which I linked to this more helpful post from Jayne Reardon at 2Civility.  From the ABA Journal, a few updates related to regulation:

  • this story about a proposal in New York to allow social workers to provide clients with limited legal services.
  • this story about the Utah law firm that is the country’s first to be owned entirely by non-lawyers.

Competence

The duty of competence is the cornerstone upon which this blog was built.  Here are some links to recent ABA Journal articles that touch upon the duty:

  • If you practice in the United States Court of Appeals for the District of Columbia Circuit, make sure not to use the Garamond font in your briefs.
  • Tired of using (or reading) “citation baggage?” Those cites with endless parentheticals and quotations?   Last month, Justice Clarence Thomas endorsed using “cleaned up” to convey that citation baggage has been omitted.
  • Finally, there’s this story. It serves to caution us that when characterizing another’s legal argument as “sound and fury signifying nothing,” we’d do well to remember the entirety of MacBeth’s statement.

If you clicked on the final two links, you’ll understand my closing line:

Let it never be said that quoting Ricky Bobby is “citation baggage.”

Ricky Bobby

Updates on Leaving a Firm, Tech Competence, and Regulatory Reform.

Today’s post updates/revisits topics I’ve previously discussed:

  • duties to clients when a lawyer leaves a firm.
  • Tech competence: it’s been 16 years (!) since Zubulake.
  • Arizona adopts significant regulatory reform.

Duties to Clients when a Lawyer Leaves a Firm

In September, I posted Leaving A Law Firm: Breaking Up Is Hard To Do.  The post highlights the duties that a departing lawyer and firm owe to clients. It’s based (mostly) on a formal advisory opinion that the ABA issued in 1999.

Then, in December, I posted this update after the ABA Standing Committee On Ethics And Professional Responsibility issued Formal Opinion 489: Obligations Related to Notice When Lawyers Change Firms. 

Update: Last month, the Ohio Board of Professional Conduct issued Formal Opinion 2020-06: Lawyer Departing a Law Firm.  The opinion tracks the most recent ABA opinion.  Summary:

  1. When a lawyer with “principal responsibility” for a client matter departs a firm, the lawyer is required to communicate the impending departure.
  2. Preferably, notice should come from both the firm and the departing lawyer.
  3. The departing lawyer should not notify clients of the impending departure before notifying the firm.
  4. Neither the departing lawyer nor the firm should state or imply that the client is the firm’s or the lawyer’s or take any action that interferes with the client’s right to choose counsel (including a new firm altogether).  Client choice remains paramount!
  5. Given the prior professional relationship, both the departing lawyer and firm may indicate a willingness to continue to represent the client.
  6. If no remaining lawyers can provide competent representation to the client, or if a conflict at the new firm prohibits the client from following the departing lawyer, the firm and lawyer must work to assist the client to find new counsel.

Thank you Professor Bernabe for the tip.

Tech Competence: it’s been 16 years (!) since Zubulake

The blog was founded on the slogan “Competence Includes Tech Competence.”  In January, and following a CLE in which I was fortunate to present with a group of highly competent litigators, I posted Competence & E-Discovery. I think it’s an okay refresher.

Last week, I fell down a rabbit hole of old articles on legal ethics and found an ABA Journal post from 2014: Looking back on Zubulake, 10 years later.  To me, it’s an interesting and informative review of the landmark decision, a decision that, really, thrust “tech competence” into the parlance.

Arizona Adopts Regulatory Reform

Last week, I blogged about the Utah Supreme Court’s decision to adopt significant changes to the Rules of Professional Conduct and the manner in which the provision of legal services is regulated. In short, acknowledging that the rules can serve as a barrier to accessing affordable legal services, the Utah Court issued Standing Order 15 which:

  • allows lawyers to share fees with non-lawyers;
  • allows lawyers to practice in entities that are owned or managed by non-lawyers; and,
  • repeals the rule that prohibits sharing fees with lawyers in other firms.

Update: The day after my post, the Arizona Supreme Court adopted similar reform  Per this press release, the “goal is to improve access to justice and to encourage innovation in the delivery of legal services. The work of the task force adopted by the Court will make it possible for more people to access affordable legal services and for more individuals and families to get legal advice and help. These new rules will promote business innovation in providing legal services at affordable prices.”  The changes:

  • create a process to license paraprofessionals who will be authorized to provide limited legal services in certain types of cases, including going to court with clients;
  • repeal the rule that prohibits fee sharing with a lawyer in another firm; and,
  • repeal the rule that prohibits non-lawyers from having ownership interests in law firms.

Legal Ethics

Maine, Utah, and Reforming Attorney Regulation.

Perhaps it’s appropriate that I visited Maine last weekend.

There’s not much I enjoy more than an early morning run followed by a dip in the ocean. In Maine, I was able to do exactly that each morning. In the surf, I’m like my 9-year old self: my attention focused on the horizon, looking for giant ships and the next big breaker to ride to shore.

IMG_5171

What’s that got to do with reforming attorney regulation?

Reform is no longer on the horizon. It’s approaching shore. Whatever the metaphor, I hope that we get on board or ride the wave.

Proponents of regulatory reform argue that the Rules of Professional Conduct impede access to legal services. Three ideas are central to reforming attorney regulation:

  • allowing non-lawyers to provide services that, now, only lawyers are authorized to provide;
  • relaxing the rule that prohibits (a) non-lawyer investment in law firms; (b) sharing profits with non-lawyers; and (c) partnering with non-lawyers; and,
  • relaxing the rule that prohibits lawyers from providing something of value in exchange for referrals.

For an overview of reforming attorney regulation – aka “re-regulation” —  this post from 2Civility is helpful.

Okay Mike, so where’s Utah figure into all of this?

Both on this blog and at CLEs, I’ve expressed frustration with the pace at which the legal profession adapts to change. One of the most-read posts on this blog is this one in which I argued that when it comes to increasing access by authorizing paralegals to provide legal services, we can’t let perfect be the enemy of good.

Which is why I was so excited to learn that last week, the Utah Supreme Court issued Standing Order 15. The order transforms regulatory reform from “talk” to “walk.”

Today, I’m not going to dive into the weeds of the “regulatory sandbox” that the order creates. Rather, I’m going to highlight (1) the changes it makes to the Rules of Professional Conduct; and (2) the reasons that the Utah Supreme Court approved it.

Standing Order 15:

  • allows lawyers to share fees with non-lawyers;
  • allows lawyers to practice in entities that are owned or managed by non-lawyers; and,
  • repeals the rule that prohibits sharing fees with lawyers in other firms.

In addition, but a topic for another day, Standing Order 15 significantly streamlines the lawyer advertising rules.  

Why adopt such significant changes?  Here’s the press release in which the Court announced that it had adopted the order.  It includes the following paragraph:

  • “Justice Deno Himonas who, along with John Lund, past-President of the Utah Bar, led the effort, summed up the need for innovative solutions in the face of America’s access-to-justice crisis as follows, ‘We cannot volunteer ourselves across the access-to-justice gap. We have spent billions of dollars trying this approach. It hasn’t worked. And hammering away at the problem with the same tools is Einstein’s very definition of insanity. What is needed is a market-based approach that simultaneously respects and protects consumer needs. That is the power and beauty of the Supreme Court’s rule changes and the legal regulatory sandbox.’ Now, under the leadership of the Supreme Court and the Bar Commission, which will have an important role in the Innovation Office, Utah will be the first state in the nation to lay the foundation for a truly accessible and affordable, consumer-oriented legal services system.”

This morning, Justice Himonas and John Lund agreed to meet with me virtually to record an interview that will focus on Standing Order 15, Utah’s new regulatory sandbox, and regulatory reform in general.  I will post it as soon as it’s finished.

This is not the last I’ll broach this topic.  Since June, Justice Cohen and I have been participating in a series of seminars put on by the IAALS Unlocking Legal Regulation Project. We’re learning about the very changes that Utah adopted.  By the end of the year, we anticipate being ready to start a more in-depth discussion here in Vermont. 

Stay tuned.

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Additional Information on Utah Standing Order 15

Related Posts from this blog

Increasing Access is a Professional Responsibility

I’ve long argued that increasing access to legal services is a professional responsibility that falls on all lawyers.  In other words, it’s the profession’s responsibility.  Let me back up a moment.

If you’re not aware, the sheer number of self-represented litigants is staggering.  In 2015, the Vermont Joint Commission on the Future of Legal Services issued this report.  Kudos to Dan Richardson for envisioning, creating, and shepherding the Commission to an end product.

I chaired the Commission’s Legal Education Committee.  Our section of the report referenced numbers from a study that Judge Davenport did in 20112.  On page 19 we wrote:

  • “In 2012, the Honorable Amy Davenport analyzed the number of self-represented litigants in cases in the Civil Division of the Vermont Superior Court. The numbers were staggering. Defendants in small claims cases represented themselves 94% of the time.21 In the Family Division, 84% of active parentage cases and 54% of active divorces involved at least one self-represented litigant. Ninety percent of the defendants in landlord-tenant cases were self-represented compared to only 24% of the plaintiffs. Defendants in collections and foreclosure cases fared marginally ‘better,’ respectively left to represent themselves 84% and 74% of the time. This ‘improvement’ was offset, if not rendered irrelevant, by the fact that 99% of
    foreclosure plaintiffs and 98% of collections plaintiffs had lawyers.”

I’m not aware of anything to suggest that more litigants are hiring lawyers.  Further, as an aside, I switched from a business track to poli sci during my sophomore year at UVM.  Still, it’s tough to imagine another industry that has such an untapped market.

Anyhow, occasionally, I hear “but Mike, the ethics rules make it tough to provide access.”  That’s a load of horse manure.  I’ve got an entire power point on how, in my view, the rules encourage lawyers to ensure access to legal services.

More specifically, I’ve blogged and spoken on two issues that, arguably, would increase access:

  1. Allowing nonlawyers to own, invest in, and manage law firms;
  2. Allowing nonlawyers to provide specified legal services that, for now, only lawyers can provide.

My posts on the nonlawyer ownership issue can be accessed here.  My post on allowing paralegals to do more was the third most-read post on this blog in 2017.  In the post, which is here, I argued against letting the perfect response to the access crisis serve as an enemy to a good response.

Neither idea has gained much traction in Vermont.  But each is back in the news nationally.

Two weeks ago, the State Bar of California authorized a 60-day public comment period on a series of  regulatory reforms “tentatively recommended” by the  Task Force on Access Through Innovation in Legal Services.  Per this press release from the Cal Bar:

  • “The Task Force’s 16 reform options under consideration represent a groundbreaking menu of possible changes to certain key regulatory issues, including:
    • Exceptions to current restrictions on the unauthorized practice of law;
    • The prospect of non-attorney ownership; and
    • Entity regulation.”

As Professor Bernabe notes on his Professional Responsibility Blog,

  • “The underlying force for these proposals is a concern that something needs to be done to provide more and more affordable access to legal services to people in need.  As you probably know, there are many studies that show that many (perhaps most) people with legal needs don’t have access to affordable representation.  Opening the door for some regulated provision of legal services by non-lawyers might help close the gap.  Yet, some argue this is not a good idea.  And so, the debate continues.”

Yes, the debate continues.  I expect to bring it to the Professional Responsibility Board at its September and December meetings.  In the meantime, many have weighed in, both for and against.  To learn more, check out posts from Above The Law, the ABA Journal, and the Legal Ethics Alert Blog.

No matter your position, keep in mind my theme when I speak on this topic: if increasing access is against the rules, we need to look again at the rules

Legal Ethics.

Legal Ethics & Crowdfunding to pay legal fees

Professor Alberto Bernabe often appears on this blog’s #fiveforfriday Honor Roll.  He also has his own blog and, last week,  blogged on an advisory from the DC Bar. The opinion addresses the ethics issues that arise when a lawyer’s client crowdfunds legal fees.

The opinion is here. Professor Bernabe’s blog post is here.  He wrote more extensively on the topic in this article that pre-dates the DC advisory opinion.

I’ve also blogged on the topic. I did so here in response to an advisory opinion from the Philadelphia Bar Association.  I wrote:

  • “That’s why the Philly opinion is great.  It doesn’t treat ‘crowdfunding platforms’ as new creatures that require new rules.  Rather, it reminds lawyers that the rules that apply when using a crowdfunding platform are the same rules that apply to any other representation.”

As Professor Bernabe notes, the DC Bar opinion is consistent with the Philadelphia opinion and others on crowdfunding.

I like the following statement from the DC Bar:

  • “It is not unusual for clients to rely on money collected from family or friends to pay for legal services.”

Indeed, many Vermont lawyers accept payment from someone other than the client.  The most common situation?  A parent pays for a child’s lawyer in a criminal or family case.

When that happens, it’s critical for the lawyer to remember Rule 1.8(f):

  • “A lawyer shall not accept compensation for representing a client from one other than the client unless (1) the client gives informed consent; (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and (3) information relating to the representation of a client is protected as required by Rule 1.6.”

In other words, even if Parents are paying Lawyer to represent Child, they don’t get to direct the representation and, absent Child’s consent, Lawyer cannot disclose information relating to the representation to them.

Somewhat related, the DC Bar included a great tip in Ethics Opinion 375:

  • “A lawyer should consider counseling his or her client regarding disclosures to third parties. Crowdfunding typically entails some level of disclosure to third parties about the predicate need for counsel. Because of their financial support, crowdfunding contributors may be interested in the status of or information about the client’s matter. Due to the risk of waiver of the attorney-client privilege, or simply for strategic reasons, a lawyer who knows that a client is crowdfunding should provide the appropriate level of guidance to the client regarding disclosures to third parties, whether such disclosures occur on a social media platform or privately in discussions with friends and family.”

In sum, nothing about using a social media platform to crowdfund legal fees is inherently unethical.  Oh, and as mentioned in both the Philadelphia and D.C. advisory opinions: crowdfunding helps provide access to legal services to those who otherwise might not be able to afford a lawyer.

See the source image

Related:

 

 

 

 

 

 

Providing Access to Legal Services is a Professional Responsibility

Last month, the ABA’s Standing Committee on Ethics & Professional Responsibility issued Formal Opinion 484.  The opinion outlines a lawyer’s duties to clients who use finance companies to finance the lawyer’s legal fees.

The ABA Journal blogged on the opinion.  The post includes the following quote:

  • “By some estimates, more than 75 percent of low-income and middle-income individuals have legal needs that go unmet for financial reasons,” said Barbara S. Gillers, chair of the ABA Standing Committee on Ethics and Professional Responsibility. “Formal Opinion 484 is important because it addresses a way to increase access to legal services for those persons who may wish to or need to finance legal fees in order to retain counsel.”

I’ll summarize the opinion in a separate post.  And, I find it a bit incongrous to discuss access to legal services in the context of the ethics of referring low-income people to loan companies.  For now, however, I want to make clear my view that increasing access to legal services is a professional responsibility.

The fact that such a staggering number of people can’t afford lawyers should not surprise anyone.  We’ve known about it for years.

In September 2015, the Vermont Commission on the Future of Legal Services issued a report and recommendations.  I chaired the Commission’s subcommittee on the Future of Legal Education.  Our section of the report included a recommendation to license paralegals as part of the effort to increase access.  We noted:

“Vermont has an access to justice problem. The issue is better described as Vermont has an ‘access to legal services problem.’  The problem is not new.

In 2012, the Honorable Amy Davenport analyzed the number of self-represented litigants in cases in the Civil Division of the Vermont Superior Court. The numbers were staggering.Defendants in small claims cases represented themselves 94% of the time. In the Family Division, 84% of active parentage cases and 54% of active divorces involved at least one self-represented litigant. Ninety percent of the defendants in landlord-tenant cases were self-represented compared to only 24% of the plaintiffs. Defendants in collections and foreclosure cases fared marginally “better,” respectively left to represent themselves 84% and 74% of the time. This “improvement” was offset, if not rendered irrelevant, by the fact that 99% of foreclosure plaintiffs and 98% of collections plaintiffs had lawyers.

These numbers reflect a court system that would be unrecognizable to lawyers who practiced a generation or two ago. In 2012, small claims, collections, landlord-tenant, divorce, and parentage cases accounted for 72% of Vermont’s civil docket.  The vast majority of ordinary Vermonters navigating a civil dispute are doing so without any help from a lawyer.”

(I included the excerpt, but deleted the footnotes.  To review them, see page 19 of the report.)

I’ve often written & spoken on issues related to access to legal services. Two common questions:

  1. Mike, what’s this got to do with ethics?
  2. Mike, I’m all for increasing access, but the rules seem to make it difficult.

Answers:

  1. Everything.
  2. I disagree.

The Vermont Rules of Professional Conduct are here.   Let me share some excerpts from the preamble

  •  “As a public citizen,  lawyer should seek improvement of the law, access to the legal system, the administration of justice, and the quality of legal services rendered by the legal profession.”  Preamble, [6].

The same paragraph continues:

  • “A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance.

The paragraph concludes:

  • “Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel.”

So, to me, the Preamble makes clear that working to increase access to legal services is a professional responsibility.  I think the Preamble also establishes that there is no legitimate argument that the rules deter, or should be intepreted in such a way that would deter, lawyers from providing legal services to those who cannot afford them.

The rules are intended to deter unethical conduct.  It simply cannot be unethical to help those in need.

I could go on at length with my thoughts on using the Rules of Professional Conduct to increase access to legal services.  I won’t.  Suffice to say, I believe that increasing access to legal services is a professional responsiblity.

And, as we work to meet that responsibility, it’s important not to act like lawyers.  As I blogged here and here in posts on access, too often, we let perfect be the enemy of the good.  Those without access are too many to strive for the perfect solution.  Indeed, as Jason Tashea notes in an ABA Journal post on Formal Opinion 484, the problem is likely far bigger than the profession itself.

Whether you agree with his argument is one thing.  But, to me, it crystallizes the notion that our predilection to search for the perfect solution keeps us from making progress.  There’s no magic arrow that will slay the dragon that is unmet legal needs.  But there might be progress in every pinprick.

We don’t have to be perfect.  Even being a little bit better would be good.

And it’s our professional responsibility to be better.

Legal Ethics

 

 

Monday Morning Answers #135

Welcome to Monday!

Friday’s questions are here.  The answers follow today’s honor roll.

Honor Roll

 

Answers

Question 1

Fill in the blanks.  The same phrase goes in each blank.

When providing pro bono legal services, a substantial majority of the 50 hours should be provided to persons of limited means or certain organizations designed to serve persons of limited means.

That’s the phrase in Rule 6.1  For a definition, see Comment [3].

Question 2

This is a “what am I” question:

  • In Bar Counsel Universe, I’m often referred to as “unbundled legal services;”
  • I am a way to help provide access to legal services for those who might not be able to afford a lawyer.
  • I am specifically authorized by Rules for Family Proceedings and the Rules of Civil Procedure
  • I am specifically authorized by the Vermont Rules of Professional Conduct
  • Under the Rules of Professional Conduct, I am allowed only if (a) I am reasonable under the circumstances, and (b) the client gives informed consent.

What am I?

I ama limited representation.  See, Rule 1.2(c).

Question 3

Lawyer called me with an inquiry involving Client and  Other. I listened.  Then, I said:

“it’s ok as long as:

  1. Client gives informed consent;
  2. there’s no interference with your professional judgment or your relationship with Client; and,
  3. you don’t share any information about the representation with Other absent Client’s consent.”

What is Other’s involvement with this situation?

Other is paying Lawyer.  See, Rule 1.8(f).

Question 4

Later today, I’m speaking to the New Hampshire Association of Criminal Defense Lawyers.

For a criminal defense lawyer, which rule should spring to mind if a plea deal is conditioned upon the lawyer’s client waiving claims of ineffective assistance of counsel?  The rule on:

  • A.   Candor to the Tribunal
  • B.    Meritorious Claims & Contentions
  • C.    Client Confidences
  • D.   Conflicts of Interest

Several advisory opinions have reached the same conclusion: the criminal defense lawyer’s personal interests conflict with the client’s and, in addition, implicate the rule that prohibits a lawyer from asking a client to agree to limit the lawyer’s liability unless the client is represented by counsel.  See, Rules 1.7(a)and 1.8(h). For more, see Pennsylvania Bar Association Formal Opinion 2014-100, provided by Thomas Wilkinson, a regular member of the honor roll.

Question 5

Speaking of Vermont & New Hampshire . . .

In 2012, Tommy Lee Jones was nominated for the Academy Award for Best Supporting Actor. The nomination was for his role in Lincoln.  He played a Pennsylvania lawyer who was elected to Congress as a “Radical Republican,” chaired the Ways & Means Committee during the Civil War, and whose fierce opposition to slavery was instrumental in the passage of the 13th and 14th Amendments.

My favorite quote attributed to him? As a trial lawyer, and in response to a judge who warned that he was manifesting contempt: “Sir, I am doing my best to conceal it.”

Oh, by the way, the Pennsylvania lawyer was born and raised in Vermont, then attended college in New Hampshire.

Thaddeus Stevens.

Discovery: It’s not a Toy

Since 2000, I’ve reviewed approximately 4,000 disciplinary complaints.  Not many – I’d guess fewer than 20 – involved allegations of discovery violations.

Anecdotally, however, it’s common for lawyers to tell me that “so & so abuses discovery all the time.”  Or, “once I found out who was on the other side, I told my client that she wouldn’t be able to afford the discovery.”

A few thoughts: there’s a common misconception that discovery violations are the sole province of the courts, not the Professional Responsibility Program.  Trust me, I do not want to – and won’t – become the arbiter of legitimate discovery disputes.  Abusive or dilatory discovery tactics?  That’s another issue.

Take a look at Rule 3.4 of the Vermont Rules of Professional Conduct:

“A lawyer shall not . . .

  • (c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no such obligation exists;
  • (d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party.”

Of interest, the title of the rule: “Fairness to Opposing Party and Counsel.”

And isn’t that important?  Although adversarial, the process is supposed to be fair.  Not only that, the rules of the game require lawyers to play fairly.

In my view, the rules of procedure – whether civil, criminal, probate, or family – are rules of a tribunal.  Thus, a knowing violation of the obligations imposed by the procedural rules violates Rule 3.4(c).  In addition, Rule 3.4(d) speaks for itself when it comes to abusive & dilatory discovery.

Earlier today, I came across a post in the ABA Journal: Let’s trash ‘data dump’ litigation The author makes compelling arguments against not just abusive & frivolous discovery, but what I call “mindless” discovery.   By “mindless,” I mean a discovery request or response made for no other reason than to say “we asked for everything!” or “we gave them everything!”

In one sense, mindless discovery is CYA discovery.  Or, lazy discovery.  CYA & lazy aren’t good.  Indeed, there’s nothing wrong with precise requests and responses.  Odds are that they do the job, and satisfy the duties of competence & diligence, without leaving a lawyer with the need to cover anything.

In another more cynical sense, mindless discovery is less a product of absent-mindedness than it is a product of a mindset to drive up costs or to foster delay.  You know, two of the very things that give lawyers a bad name.

Give the ABA Journal post a read. It makes interesting points on (1) a trend in the federal courts towards requiring “precision” in discovery; (2) the benefits that technology can bring to the discovery process; and (3) the benefits of – oh no! – actually having an honest discussion with opposing counsel about what each side really needs.

A quote from the post jumped out at me:

“Access to justice should not be a function of who can afford the best toys, so there has to be a solution.”

My two cents on a potential solution: don’t use discovery as a toy.

See the source image

 

 

 

 

Pledge to Focus on Lawyer Well-Being

Earlier this year, I blogged on the creation of the Vermont Commission on the Well-Being of the Legal Profession.  The Commission is in the midst of its work.  Its charge and designation is here.

This is a national topic.  Others states have undertaken similar projects.  The ABA has been a leader in raising awareness of issues related to lawyer well-being.

Last week, the ABA Journal reported that several of the country’s largest law firms have signed a pledge to follow a 7-point plan to improve lawyer well-being.  The pledge and the plan are here.   The pledge was developed by the ABA’s Working Group to Advance Well-Being in the Legal Profession.  The group has also developed this Well-Being Toolkit for Lawyers and Legal Employers.

Per the article in the ABA Journal, the goal is for all legal employers to take the pledge by January 1.

Here’s the pledge:

  • “Recognizing that substance use and mental health problems represent a significant challenge for the legal profession, and acknowledging that more can and should be done to improve the health and well-being of lawyers, we the attorneys of _______________________ hereby pledge our support for this innovative campaign and will work to adopt and prioritize its seven-point framework for building a better future.”

The seven-point framework:

  1. Provide enhanced and robust education to attorneys and staff on topics related tow well-being, mental health, and substance use disorders.
  2. Disrupt the status quo of drinking based events by challenging the expectation that all events include alcohol, and, ensuring there are non-alcoholic alternatives when alcohol is served.
  3. Develop visible partnerships with outside resources committed to reducing substance use disorders and mental health distress in the profession: healthcare insurers, lawyer assistance programs, EAPSs, and experts in the field.
  4. Provide confidential access to addiction and mental health experts and resources, including free, in-house, self-assessment tools.
  5. Develop proactive policies and protocols to support assessment and treatment of substance use and mental health problems, including a defined back-to-work policy following treatment.
  6. Actively and consistently demonstrate that help-seeking and self-care are core cultural values, by regularly supporting programs to improve physical, mental, and emotional well-being.
  7. Highlight the adoption of this well-being framework to attract and retain the best lawyers and staff.

The ABA’s program is a 2 year process.  The first year is focused on legal employers to recognize the problem and, as stated above, pledge to commit to promoting awareness & the seven-point plan. Then, in year 2, the ABA will ask legal employers to complete a commitment form that describes steps taken in the prior year.

In my view, whether formally taking the pledge or not, the ABA’s program provides a fantastic vehicle for legal employers to make the workplace healthier.

Wellness

 

Utah to license paralegals

As reported this week by Law Sites, the ABA Journal, and the Professional Responsibility Blog, Utah will license paralegals to practice law in limited areas.  On November 1, rules will go into effect that are expected to result in the licensing of paralegal practitioners sometime in 2019.

Utah’s rules will authorize paralegal practitioners to provide limited representation in three practice areas:

  1. temporary separation, divorce, parentage, cohabitant abuse, civil stalking, custody and support, and name change;
  2. forcible entry and detainer; and
  3. debt collection matters in which the dollar amount in issue does not exceed the statutory limit for small claims cases.

The rules authorize paralegal practitioners to provide limited representation in these areas without working under the supervision of a licensed attorney, but do not authorize court room appearances.  The first classes begin this fall, with the initial licensing exam expected to take place next spring.

I support paralegal licensing.  I view it as but one arrow in the profession’s quiver as it battles to increase access to legal services.

In 2015, I chaired the Legal Education Committee of the Vermont Joint Commission on the Future of Legal Services.  My committee recommended licensing paralegals to provide limited legal services.  The recommendation was based, in part, on the staggering number of self-represented litigants in Vermont’s civil docket. The report of the Joint Commission is here.  The recommendations from the Legal Education Committee begin on page 11.

Last December, I posted this blog: Paralegal licenses: incremental improvement to access isn’t perfect, but it isn’t badI openly questioned whether my committee had recommended a paralegal licensing program that created unnecessary barriers to entry.  My thoughts flowed from Mary Juetten’s post in the ABA Journal entitled The limited license legal technician is the way of the future of law.

I believe that, right now, there are many Vermont paralegals who could provide competent legal services in the exact areas in which Utah will soon authorize paralegals to practice.  Or, as I wrote last December:

  • “Let’s be honest: right now, there are high-quality Vermont paralegals who, without any additional training, could walk into a courthouse and provide much needed access to the scores of family law litigants without any.  Seriously.  If you were to get divorced tomorrow, who would you choose? A paralegal who has worked for years in a family law practice, or, me?  I’ve been licensed for 23 years and wouldn’t know the first thing to do for you.”

If some training is necessary, fine.  Let’s design the program, administer it, and allow paralegals to provide legal services for people who are going without.

Will the program solve the access crisis? No.  But it’d be better than nothing.

As I wrote in December:

  • “Some of you might be rolling your eyes and asking ‘what good would that do in the bigger picture?’   You’re right, it’s not perfect.  There will still be too many people who can’t afford legal services. But, we have to stop looking for the magic bullet that solves the entire problem at once.  The ‘big picture’ gets smaller by providing access to 1 person at a time. One of my priest’s favorite sermons centers on Loren Eisley’s The Starfish Story.  Here’s the story:

One day a man was walking along the beach when he noticed
a boy picking something up and gently throwing it into the ocean.

Approaching the boy, he asked, ‘What are you doing?’

The youth replied, ‘Throwing starfish back into the ocean.
The surf is up and the tide is going out.  If I don’t throw them back, they’ll die.’

‘Son, the man said, “don’t you realize there are miles and miles of beach and hundreds of starfish?
You can’t make a difference!’

After listening politely, the boy bent down, picked up another starfish,
and threw it back into the surf.  Then, smiling at the man, he said
“I made a difference for that one.’

Soon I hope we stop letting the desire to help everyone keep us from helping anyone.

See the source image