Pro Bono: How is Vermont Doing? Stay Tuned

Last month, the ABA’s Standing Committee on Pro Bono & Public Service provided Vermont’s Access to Justice Coalition with A Report on the Pro Bono Work of Vermont’s Lawyers.  Lawyers from 24 states participated in a survey, with the data serving as the basis for state-specific reports.

The A2J Coalition is reviewing the Vermont report.  Soon, the Coalition hopes to receive a national report that reflects the aggregate data from the states that  participated.  Once the national report is available, we’ll have something to compare to Vermont.  I’m not positive, but I expect that the Coalition will disseminate the report after having time to digest and compare.

I’ve seen a draft of the Vermont report.   The results suggest that Vermont lawyers have questions about the relationship between pro bono & legal ethics.  To that end, I thought I’d re-post a blog that I authored last October.  It includes some of my thoughts on the section of the Vermont Rules of Professional Conduct that addresses pro bono.   Check it out HERE for a primer/refresher.

 

Otherwise, stay tuned.  Soon we’ll have a better idea of how we’re doing and what we can do better.  For now, here’s a relatively new opportunity that you might have missed: Vermont Free Legal Answers.

Oh . . . and here’s a sneak preview that happens to double as my favorite part of the report.   Given a long list of factors that may or may not motivate lawyers to do pro bono work, Vermont lawyers ranked “Helping People in Need” as the top motivator.

Isn’t that what it’s all about.

pro bono

 

Power of Pro Bono

I’ve written lately on using the rules to increase access to legal services.  A few of my posts referenced compassion.

This post isn’t part of that series.  Rather, I’m simply sharing a story that I liked. A story that involve compassionate lawyers working pro bono not just to increase access, but to make their community a better place.

The story, by David Lash, is at Above the Law and is entitled A Remarkable Experiment Taking Place in Los Angeles.  Give it a read.  Here’s the closing sentence:

“And in the middle of this revolution of outreach are the lawyers, again demonstrating the unique and powerful way that only the justice system, particularly when fueled by collaborating experts from the most compassionate and expert legal aid organizations, can touch the lives of those most in need as can no one else.”

Increasing Access: Limited Licenses

Earlier this year, I was invited to speak as part of the Vermont Law School Summer Lecture Series. My topic: “Using the Rules of Professional Conduct to Increase Access to Justice.” I’m reformatting the talk as a series of blog posts on ways we can use the Rules of Professional Conduct to increase access to legal services.

Part 1 of the series is HERE. It includes a link to a video of my talk and is intended to reassure you that the Rules of Professional Conduct do not pose a barrier to increased access to legal services.

This is Part 2.  Here, I focus on using limited licenses to increase access to legal services. To tie it to the Rules of Professional Conduct, I’ll refer to Rule 5.5 throughout. Rule 5.5 is the rule that prohibits the unauthorized practice of law.  In other words, this post focuses on increasing access to legal services by increasing the pool of people who are authorized to provide legal services.

You’ll note that I prefer the phrase “access to legal services.”  Andrew Perlman is the Dean of Suffolk University Law School.  He’s also one of the leading thinkers on the future of the legal profession.  A law review article that he wrote played a significant role in shaping my views on limited licenses for nonattorneys.  The article is here.  In footnote 4, Perlman noted:

  • “. . . it may be more appropriate in some situations to say that the public needs better ‘access to legal services.’ After all, many important legal and law-related services (e.g., getting a will or health care proxy) are not necessarily about ‘justice,’ at least not in the usual sense of the word. That said, a significant percentage of legal services have a strong relationship to justice, so the phrase ‘access to justice’ is appropriate in most circumstances. The terms are used interchangeably in this Article.”

Perlman’s initial point resonates with me.  “Justice” can be a nebulous term.  I’m sure there are many litigants who had lawyers but do not feel like they received “justice.”  We should not measure access by results.  Rather, when staggering numbers of civil litigants come to court without attorneys, we should measure access by the number of people who arrive with a person authorized to provide legal services.

Here are two ideas.

  1. Limited Licenses for attorneys who agree to limit their work to pro bono cases.
  2. Limited Licenses for Vermont Certified Paralegals.

1.  Pro Bono Emeritus

This idea focuses more on amending the attorney licensing rules than it does on Rule 5.5.

As most of you know, when a Vermont attorney receives or renews a law license, the attorney must choose “active” or “inactive” status.  An attorney on active status must pay full freight ($410 per cycle) and complete 20 hours of CLE. An attorney on inactive status is not authorized to practice law.

There are plenty of lawyers who no longer want to maintain an active license, but who are willing to give back by providing services pro bono.  Requiring “active” status (and its $420 fee and 20 hours of CLE) is a deterrent to giving back.  So is the spectre of a disciplinary prosecution for the inactive attorney who represents clients, albeit without pay.

In a few weeks, the Vermont Supreme Court will consider a proposal to add a new license status: pro bono emeritus.  If approved, a lawyer who chooses pro bono emeritus status would be authorized to provide legal services, without pay, to persons of limited means, as well to organizations of the type listed in Rule 6.1(a)(2).  Lawyers on pro bono emeritus status would pay a significantly reduced licensing fee.  They would be required to complete 8 hours of CLE, not 20, er reporting period.

To be clear, this idea was not mine. It came from the VBA’s Pro Bono Committee and has been endorsed by the VBA Board of Managers. My role was limited to drafting the language and submitting it to the Court. The hope is that the new licensing category will afford more lawyers an opportunity to give back and, in the process, afford more litigants access to legal services.  Many other states have adopted similar rules.  And by “many,” I mean “most.”  The ABA’s chart on state pro bono emeritus rules is here.

2.  Limited Licenses for Vermont Certified Paralegals

Another idea is to confer limited licenses to certified paralegals. In the first post in this series, I referenced the Vermont Commission on the Future of the Legal Profession. I chaired the Commission’s Committee on the Future of Legal Education.  Our committee recommended licensing paralegals who complete a certified educational program.  I won’t rehash the recommendation.  It’s on pages 14-33 of this report.  However, here are a few thoughts:

As the Committee noted:

  • “Not all legal services require delivery by a person with a law degree. Given the
    staggering number of cases involving self-represented litigants, there are routine
    matters in which common legal services could be delivered competently with proper
    training.”  Commission Report, p. 28.

I mentioned Andrew Perlman above. Again, his law review article is here.  In it, he wrote that:

He added:

  • “The focus should be on whether a particular service can be performed by
    someone who does not have a law license, not who can perform the service best.
    After all, even when services must be performed by lawyers, we have never
    concluded that only the most skilled lawyers must handle a matter. The
    touchstone should be competence.” Toward the Law of Legal Services, 37 CARDOZO L. REV. 49, 92(2015).

By licensing paralegals who complete a certified educational program, we’d expand the pool of people authorized to provide legal services and, hopefully, increase access to legal services.

I often hear two counter-arguments.

The first is that authorizing paralegals to practice will take work from lawyers.  If that’s your argument, raise your hand.

Thank you.  Now I know that you did not read the Committee report.  Again, here’s the report.  The Committee made it clear that the recommendation was “to identify specific legal services within family law, landlord-tenant law, and collections law that Vermont Certified Paralegals should be authorized to provide to clients.”  Report, p. 27 (emphasis addded).

Specific areas within family law, landlord-tenant law, and collections law.

As I mentioned in the original post in this series, those are the exact areas of law in which huge numbers of litigants are representing themselves.  Per Judge Davenport’s study, the percentages of self-represented litigants in each area:

  • Active parentage cases: 84%
  • Tenants: 90% (vs 24% of landlords)
  • Collections Defendants: 84% (vs 2% of the plaintiffs)
  • Foreclosure Defendants: 74%  (vs 1% of the plaintiffs)
  • Divorce: 54%

Authorizing certified paralegals to provide legal services to litigants who are not receiving legal services from lawyers will not take work from lawyers.

The second argument that I’ve heard against limited licenses for paralegals is that people who can’t afford lawyers won’t be able to afford paralegals.  Maybe not.  But maybe some  will.  On this point, I’m reminded of my priest, Monsignor Lavalley.

Monsignor Lavalley often tells the story of a man who went for a walk on a beach. The beach was littered with thousands of starfish that had been left ashore when the tide receded and that would surely die before the tide rose again to save them.  The man encountered a little girl who was returning starfish to the water, one at a time. It was late in the day, and the girl would soon have to go home for the night.  The man said to the girl “it’s getting dark and there are too many.  Go home. You’re never going to make a difference.”  The girl picked up a starfish, smiled, and replied “to this one I will.”

True, some people who can’t afford lawyers won’t be able to afford paralegals.  But maybe one will.  Let’s help who we can, when we can.  If tomorrow one more person than today has access to legal services, we’ll be better off than we were this morning.

Increasing the type of providers who are authorized to provide legal services is a way to use the licensing rules and the Rules of Professional Conduct to increase access to legal services.

access

 

Increasing Access: It must be Ethical

Earlier this year, I was invited to speak as part of the Vermont Law School Summer Lecture Series. My topic: “Using the Rules of Professional Conduct to Increase Access to Justice.” I spoke for a bit less than an hour.  You can watch the presentation HERE.  I used a power point, which isn’t visible on the video.  If you’d like it, please e-mail me and I will send it to you.

Over the next few days, I’m going to use this space to share the ideas that I shared at VLS. The ideas are limited to how the Rules of Professional Conduct can be used to increase access to legal services.  Many other ideas exist and are worth discussing.  However, they are beyond the scope of the ethics rules and, therefore, beyond the scope of this column.

Cognizant that several readers have informed me that shorter posts receive more attention, I will break this series into 5  posts:

  1. Increasing Access: It Must Be Ethical
  2. Limited Licenses
  3. Limited Representation/Ghostwriting/Flat Fees
  4. Emergency Financial Assistance to Clients
  5. Non-Lawyer Ownership & Management of Law Firms

Increasing Access: It Must Be Ethical

I’ll start as I did at VLS: stop reading this blog and go volunteer an hour of your time.  For years, we’ve held fanastic seminars aimed at devising solutions to solve the justice gap.  That’s great, but at some point it’s just lawyers being lawyers. Most of you know that my background is in basketball.  Basketball players & teams don’t get better by sitting around and talking about getting better.  They get better by playing basketball.  To that end, talking about the justice gap won’t help to reduce it.  Reducing it will reduce it.

As a profession, we excel at forming committees, holding hearings, and drafting, re-drafting, and issuing reports. Too often, those reports sit on shelves or today’s electronic equivalent.  Absent action, the hours devoted to the reports would have been better spent volunteering at a rent escrow clinic or taking a pro or low bono case.

And there’s plenty to do.

For those of you not aware of the numbers, Judge Davenport conducted a study in 2012. The studied revealed a staggering number of self-represented litigants:

  • Active parentage cases: 84%
  • Tenants: 90% (vs 24% of landlords)
  • Collections Defendants: 84% (vs 2% of the plaintiffs)
  • Foreclosure Defendants: 74%  (vs 1% of the plaintiffs)
  • Divorce: 54%

These five types of cases accounted for 72% of the civil docket.

Don’t get me wrong: many lawyers are providing top-notch work to clients who have little or no ability to pay. Among them, the staff attorneys at Vermont Legal Aid, LawLine of Vermont, and the Defender General’s office.  Further, there are several excellent programs that are up & running.  At the risk of excluding some, I’ll list a few off the top of my head:

Further, many of you have donated time and money: the VBF’s Access to Justice Campaign comes to mind, as do the regular and generous donations from the Rutland County Bar Association.

Finally, Dan Richardson’s tireless efforts with the Vermont Commission on the Future of Legal Services resulted in a report that includes several recommendations that, if adopted, would only help to increase access to justice.

But I don’t think the numbers have improved since Judge Davenport’s study.

So, to the Rules of Professional Conduct we go.

Don’t let anyone tell you that the rules prohibit or impede lawyers from participating in programs designed to increase access.  That is pure BS.  Here are a few quotes from the Preamble,

  • “A lawyer is a public citizen having special responsibility for the quality of justice.”
  • “A 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.”
  • “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.”
  • “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.”

Hmm.  Seems rather clear to me that the rules do not impede ensuring access to justice. Quite the opposite.

For me, it comes down to this: what do the rules prohibit? Yes, we have lots of rules, many of which are written in perfect legalese.  But, I’ll never forget something that a Vermont attorney for whom I have the utmost respect told me shortly after I’d been named disciplinary counsel in 2000: “the rules are great, but remember, it’s lawyers who lie, cheat, or steal who you should focus on.”

Isn’t that exactly it?  No lying, no cheating, no stealing.

Oh, I hear you thinking right now: “but Mike! what about diligence? or conflicts?”  My response: a lack of diligence is a form of lying. A conflict is cheating.

From there, it’s simple.  Helping those in need is not lying, cheating, or stealing. I don’t know how else to say it.  For those of you who need a cite, here’s something that the Louisiana Supreme Court said in 1976 and to which I will return in a follow-up post:

  • “no bar disciplinary rule can or should contemplate depriving poor people from access to the court so as effectively to assert their claim.” La. State Bar Ass’n v. Edwins, 329 So. 2d 437 (1976).

In sum, the Rules of Professional Conduct do not impede lawyers from helping those in need to access legal services.

With that out of the way, I will use the next 4 posts in this series to discuss ways that the rules can be used to increase access.

 

 

 

Pro Bono

It’s Celebrate Pro Bono Week.   Here in Vermont, the celebration included the Vermont Bar Foundation’s Pro Bono Conference.  One of the speakers was yours truly, discussing ethics and pro bono.  Here are some of my thoughts.

Per Rule 6.1,

  • “Every lawyer has a professional responsibility to provide legal services to those unable to pay.  A lawyer should render at least 50 hours of pro bono publico legal services per year .  In fulfilling this responsibility, a lawyer should
    • (a) provide a substantial majority of the 50 hours without fee or expectation of fee to:
      • (1) persons of limited means; or
      • (2) charitable, religious, civic, community, governmental, and educational organizations in matters which are designed primarily to address the needs of people with limited means.” (emphasis added).

The remainder of the 50 hours can be satisfied in ways outlined in Rule 6.1(b).

  • Who qualifies as a “person of limited means?”
    • See, Rule 6.1, Comment [3] (“Persons eligible for legal services under paragraphs (a)(1) and (2) are those who qualify for participation in programs funded by the Legal Services Corporation and those whose incomes and financial resources are slightly above the guidelines used by such organizations but nevertheless cannot afford counsel.”
    • Key points made at the CLE this morning included the point that there are plenty of people who make more than the guidelines but who cannot afford legal services.  Those people need help as well.
  • My client didn’t pay, that’s pro bono.
    • Categorically false.  Rule 6.1(a) is clear:  a “lawyer should provide substantial majority of the 50 hours of legal services without fee or expectation of fee . . ..”
    • Comment [4] drives home the point:  “Because services must be provided without fee or expectation of fee, the intent of the lawyer to render free legal services is essential for the work performed to fall within the meaning of paragraphs (a)(1) and (2).  Accordingly, services rendered cannot be considered pro bono if an anticipated fee is uncollected . . . .”
    • Note, however that the Comment goes on to indicate that “. . . the award of statutory attorney’s fees in a case originally accepted as pro bono would not disqualify such services from inclusion under this section.  Lawyers who do receive fees in such cases are encouraged to contribute an appropriate portion of such fees to organizations or projects that benefit persons of limited means.”
  • I’m a government attorney, so I don’t have to do pro bono.
    • False.  Rule 6.1 applies to every lawyer.  Comment[5], however, recognizes that government lawyers may not be able to satisfy the requirements of Rule 6.1(a) and, therefore, should be allowed to satisfy the pro bono requirement via provision of services set out in Rule 6.1(b).  Specifically, the Comment states
      • “Constitutional, statutory, or regulatory restrictions may prohibit or impede government or public sector lawyers and judges from performing the pro bono services outlined in paragraphs (a)(1) and (2).  According, where those restrictions apply, government and public sector lawyers and judges may fulfill their pro bono responsibility by performing services outlined in paragraph (b).
  • So I’m doing pro bono work, what other rules apply?
    • All of them!  You must be competent & diligent.  You can’t communicate with a represented party on the subject of the representation without counsel’s consent.  You can’t lie.  In short, pro bono is not license to act unethically.
  • What about the conflicts rules?
    • Rule 6.5 relaxes the conflicts rules IF a lawyer provides:
      • short term limited legal services
      • under the auspices of a program sponsored by a nonprofit organization or court
      • without expectation by the lawyer or the client that the lawyer will provide continuing representation in the matter.
    • If each of these is present, the conflicts rules apply only if the lawyer KNOWS of a conflict.  In other words, if the 3 conditions are met, a lawyer does not have to do a conflict check prior to commencing the representation.  See, Rule 6.5, Comment [1] (“Such programs are normally operated under circumstances in which it is not feasible for a lawyer to systematically screen for conflicts of interest as is generally required before undertaking a representation.”
    • Remember: a lawyer may provide pro bono services outside the auspices of program sponsored by a nonprofit or court.  However, if so, the lawyer must check for conflicts.

That’s all for now. I hope you celebrate pro bono week by providing some pro bono hours.  For opportunities to do so, contact Mary Ashcroft or Angele Court.