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








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.


  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



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.



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



Pro Bono? There’s an App for that!

Well, not really an app.

So, in 2016, the ABA released a Report on the Future of Legal Services in the United StatesI don’t think the report received enough attention, but that’s a blog for another day.

Today’s point is limited to a theme expressed in the report.  It’s a theme that the ABA’s Ellyn Rosen stressed in a seminar that I attended two days ago: technology can help to close the access gap.

Ellyn cited to an eye-opening finding in the report. It’s on page 14, and quotes this 2014 article by Gillian Hadfield.

  • “Even with the profession’s deep commitment to pro bono and further innovations, pro bono work alone will not resolve the tremendous need for civil legal representation. Data shows that annually ‘U.S. lawyers would have to increase their pro bono efforts … to over nine hundred hours each to provide some measure of assistance to all households with legal needs.’ ”

Here’s one way to help: Vermont Free Legal Answers.  Think of it as pro bono without ever having to leave your desk.  All you have to do is sign up, then pick & choose the questions you want to answer.  It’s that simple.  If you’re reading this and are licensed in a jurisdiction other than Vermont, odds are that your state has it too. Over 40 states have adopted the ABA’s free legal answers model.

Am I asking you to increase your hours to 900? I am not.  I’m simply reminding you that every little bit helps. Think of the starfish 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.”

When it comes to unmet legal needs and pro bono, you too can make a difference for that one.

See the source image

Should we allow nonlawyers to own, manage, and invest in law firms?

With only a few exceptions, U.S. jurisdictions prohibit:

  • nonlawyer ownership of law firms;
  • nonlawyer management of law firms; and,
  • lawyers from sharing fees with nonlawyers.

Vermont does so through Rule 5.4.

In the lingo, “alternative business structures” are prohibited.

Last year, I posted a series of blogs related to Rule 5.4 and alternative business structures (“ABS.”)  Among them:

Here’s a summary of oft-cited arguments for & against allowing nonlawyers to own, manage, and invest in law firms:

Arguments for ABS

  • Increased Access to Legal Services
  • Enhanced Financial Flexibility for Law Firms
  • Enhanced Operational Flexibility for Law Firms
  • Improved Cost Effectiveness & Quality of Services

Arguments against ABS

  • Threat to Lawyers’ Core Values & Professional Independence
  • Will Lead to Less Pro Bono Work
  • Threatens the Attorney-Client Privilege
  • Promised Benefits Not Likely to Happen

The idea didn’t gain much traction in Vermont.  Today, the ABA Journal reports that the State Bar of California has formed a task force to study nonlawyer ownership.  Per the ABA Journal, California commissioned a report that indicated that amending the rules to allow ABS would:

  • “(1) drive down costs; (2) improve access; (3) increase predictability and transparency of legal services; (4) aid the growth of new businesses; and (5) elevate the reputation of the legal profession.”

It’s an interesting concept.  At the very least, I think it’s one worth studying, as Vermont continues to struggle with acccess to affordable legal services.

Image result for alternative business structures

Ghostwriting as Access

I ain’t afraid of no ghost!

As such, in December 2016, I argued that ghostwriting is one tool at the profession’s disposal in the battle to increase to access to justice.  The post is here.  A quick recap:

  • Rule 1.2(c) authorizes lawyers to enter into limited representation agreements;
  • While ghostwriting used to be frowned upon, the trend is to conclude that it’s a permissible form of limited representation;
  • undisclosed ghostwriting does not provide a self-represented litigant with an unfair advantage;
  • undisclosed ghostwriting does not constitute misrepresentation by omission;
  • lawyers who “ghostwrite” must abide by the Rules of Professional Conduct while providing limited services; and,
  • lawyers should be aware of court rules that require self-represented litigants to disclose having received assistance from a lawyer.

Last week, the Mississippi Bar issued Ethics Opinion 261.  The opinion addresses two questions:

  1. Is it ethical for a lawyer to prepare documents for pro se litigants?
  2. If the answer to question 1 is yes, is the preparing lawyer required to disclose either the name of the preparer or that the document was prepared by a lawyer?

Here’s a summary of the Mississippi Bar’s conclusions.

On the first question:

  • limited representation “is an important means of providing access to justice for all persons regardless of financial resources;”
  • as long as doing so is reasonable and the client fully understands the limitation, limiting a representation to writing or preparing a document is a permissible; and
  • lawyers who provide limited representation must abide by “the full panoply of ethical obligations.”

As to the second question:

  • the preparing lawyer is not required to disclose having provided assistance;
  • undisclosed assistance does not constitute misrepresentation by omission; and,
  • undisclosed assistance does not provide an otherwise self-represented litigant with an unfair advantage.

Sounds familiar.

The Mississippi Bar added a few notes of caution.

First, the opinion stresses the importance of ensuring that the client understands what it means to receive “limited representation” in the form of ghostwriting.

  • “For example, if the lawyer only drafts a motion for summary judgment but does not appear at the hearing, the client will have to present the motion and respond to questions from the court that the client may be unable to answer.”

Second, the opinion makes clear that a limited representation is exactly that: limited.  It’s likely unethical for a lawyer to use a limited scope representation as cover to participate actively & substantially in the matter on an ongoing basis. That would be deceptive.

Finally, the opinion alerts lawyers to the fact that, like this blog, it’s limited to an analysis under the Rules of Professional Conduct. Other law, including court rules, might require disclosure.

Image result for images of ghostwriting