Recommendations from Fordham Law Review

II. LIMITED LEGAL ASSISTANCE (excerpted)

A. Preamble

47. Access to justice must be maximized by an ongoing analysis of the purpose of law and legal proceedings and the implementation of modifications that simplify the administration of justice and serve the interests of the public without undue intervention.

48. Recent experiments in the delivery of legal services- some but not all driven by technology- suggest the possibility of significant increases in access to services, provided the rules governing the practice of law are not interpreted to inappropriately narrow the delivery and evolution of services.

49. The following principles are intended to facilitate this delivery and evolution, while advancing the core values of client autonomy, client protection and attorney professionalism.

50. These principles are drafted to facilitate use of these methodologies in the non-market context, but may apply universally.

51. The legal profession has a responsibility to facilitate access to justice; therefore, the Model Rules of Professional Conduct should be interpreted to encourage use and expansion of responsible modes of representation that increase such access.

B. Issues and Major Considerations

In attempting to define the ethical and professional considerations relevant to limited legal assistance, the following principles were developed to guide recommendations in this area:

52. There should not be two systems of justice, one for the poor and one for those with resources. Ethics provisions applied to limited legal assistance must not be based on the ability or in-ability to pay for that assistance.

53. In crafting a delivery system, it is critical to establish criteria that clearly and objectively determine which clients receive which level of services and to establish who will make these decisions.

54. It is anticipated that lawyers and legal services programs may offer a range of options to clients, including traditional "full-service" representation. It is acknowledged that in certain circumstances traditional representation may be the best, and perhaps only, successful mechanism for addressing a client's problem.

55. Principles of informed consent should be taken into account in adopting limited legal assistance methodologies.

56. Limited legal assistance methodologies implicate a range of considerations regarding the definition and parameters of the attorney-client relationship.

57. Methods of delivering legal services, particularly experimental methods such as limited legal assistance, must be evaluated on an on-going basis.

C. Recommendations

58. A lawyer or legal services program that offers individuals the option of one or more types of legal assistance, including limited legal assistance, has a professional obligation to respect client autonomy and choice. A lawyer or legal services program may limit the range of options due to resource limitations.

59. There are three general categories of assistance that a lawyer or legal services program may offer. These categories are: (1) traditional, "full-service" representation; (2) limited legal assistance; and (3) general advice. These recommendations further define category two, limited legal assistance.

60. Within the Limited Legal Assistance category, there are two subdivisions: (a) brief, specific advice, and (b) assistance requiring a diagnostic interview.

(a) Brief, Specific Advice: An individual may interact with a lawyer or legal services organization for the limited purpose of obtaining brief, specific advice. "Brief, specific ad-vice" shall be defined as answering a specific question or limited set of related questions without follow up or exploration by the legal services provider. In such circum-stances,
the client must be advised that the service is limited to brief advice only.

The lawyer or legal services provider offering brief ad-vice is bound by obligations of confidentiality, competence, and the duty to avoid conflicts of interest appropriate to the context. The lawyer or legal services program has no duty to provide complete assistance with respect to the individual's legal problem. Under the ethical rules governing conflicts of interest, which apply to potential as well as actual conflicts, the lawyer or legal services program should not be restricted to the same degree as the lawyer who renders more extensive representation. A lawyer or legal services organization that provides brief advice must develop systems that prevent disclosure of client confidences and must avoid the risk of divided loyalty by terminating the communication as soon as it appears that there may be a conflict with a previous recipient of brief advice services. A provider of a brief service that also operates a full-service or diagnostic system must have in place a mechanism to avoid actual conflicts of interest between recipients of brief advice and those who receive assistance under the full-services or diagnostic models.

Examples of brief, specific advice:

(i) Potential client calls legal services office and states, "My boyfriend registered his car in my name because he had so many parking tickets. Now, he has more parking tickets under my name. Do I have to pay them?" The answer is "yes."

(ii) Consumer calls legal services office and states that she was turned down for credit and that her credit report is incorrect, and asks what should she do. Legal worker advises her how to get a copy of her credit report, that the report is free, and the steps she should take to get the credit-reporting agency to revise the information.

(b) Assistance Requiring a Diagnostic Interview: In all other circumstances, the lawyer or legal services provider shall conduct a diagnostic interview before providing legal assistance. That diagnostic process shall elicit sufficient facts to enable an appropriate decision as to the limited service(s) to offer the client and for the client to make an informed decision about how to proceed. An informed decision includes knowledge of the circumstances under which the recommended course of action might change and when additional services might be necessary. Information obtained in this process is protected as confidential regardless of whether an attorney-client relationship results from the process. When the limited services identified through an appropriate diagnostic process have been competently provided, the lawyer or legal services pro-gram has no further obligation with respect to this client.

Example: Following a diagnostic interview, a legal services program offers a survivor of domestic violence the following legal assistance choices:

(i) Daily pro se clinic on how to get your own order of protection;

(ii) Website on how to get an order of protection;

(iii) Hard copy of pro se materials and a how-to video;

(iv) Limited representation for the sole purpose of obtaining a temporary restraining order; and

(v) Being placed on a waiting list for traditional, full-service representation.

The diagnostic interview should elicit a variety of factors that would assist the provider in determining the most appropriate choices for this client. Depending on the facts, some options would be excluded. For example, the provider should determine the caller's ability to use pro se materials. If the provider learns the client is unable to read and write, the provider should eliminate options two and three. Once the inappropriate choices have been eliminated, the client can choose from the remaining options.

61. Systems providing limited legal assistance must be internally and externally evaluated.

62. As a nation of laws, our courts serve as the centerpiece for the peaceful resolution of conflicts. To continue in that role, the courts must effectively serve the public, maximizing access and ease of use. The courts have an affirmative obligation to help litigants and advance limited service methodologies, which increase access to the courts. Rules regarding the administration of justice, rules governing the practice of law, and rules prohibiting the unauthorized practice of law should not be created, advanced, interpreted, or applied so as to obstruct such efforts to increase access. The courts and the legal profession should be encouraged to explore innovative efforts to assist pro se
litigants.

D. Recommendations on Further Study

63. Further study is needed regarding the application of these principles to particular methodologies, including hotlines, web-sites (informational, unintelligent form fill-in, intelligent form fill-in, email with an attorney, and online videoconferencing), ghostwriting, pro se clinics, unbundled services, form pleadings, community education, and those methodologies to be developed in the future.

64. The application of the above recommendations to current ethical provisions, including standards of competence and diligence, confidentiality, and conflicts of interest, needs concrete assessment and evaluation, particularly with respect to the impact on clients and the resolution of their legal problems or questions.

reproduced from:

RECOMMENDATIONS OF THE CONFERENCE ON THE DELIVERY OF LEGAL SERVICES TO LOW-INCOME PERSONS

By: Fordham Law Review Editorial Board