California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - APRIL 2001
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California Bar Journal

The State Bar of California


REGULARS

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Front Page - April 2001
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News / News Briefs
Bar foundation gives $50,000 grant to fund Conference of Delegates
Bar hit with $2.35 million fee demand in lawyer dues case
Bush administration ends ABA review of judicial candidates
Special publication in May Bar Journal
Davis appoints two public members to board of governors
George lauds five years of reform
2001 Annual Meeting will be held in Anaheim
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Trials Digest
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Legal Tech - FindLaw: Lawyers' home on the web
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Opinion
From the President - Butter a slice, not a full loaf
Is it wrong to copy a song?
Letters to the Editor
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Update on ethics
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MCLE Self-Study
Kids and the Law
Self-Assessment Test
MCLE Calendar of Events
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You Need to Know
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Public Comment
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Discipline
Ethics Byte - 2 new rulings send litigators back to basics
Forgery, grand theft, fraud convictions lead to resignation
Attorney Discipline

FROM THE PRESIDENT

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Butter a slice, not a full loaf 
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By PALMER MADDEN
President, State Bar of California
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Palmer Madden, President, State Bar of CaliforniaMost people who need attorneys can not afford them. The State Bar cannot fix this problem, but it could make a significant contribution by promoting opportunities for attorneys to provide discrete task legal services. Under the doctrine of discrete task attorney services, an attorney takes on only a slice of a legal problem for the client - for example, helping the client fill out a form -   without taking on the full representation of the client. Discrete task legal services offer one way to provide citizens with lower cost help than they can receive from attorneys if attorneys are required to take on the entirety of a legal problem.

Under the current state of the law, there are a number of rules that discourage discrete task practice - barriers which drive up the cost of helping people have access to some professional help. The State Bar should take up the task of eliminating these barriers.

Most of our citizens, where they could (and often should) use an attorney, elect a cheaper alternative. The largest financial commitment that most people make, a commitment that is fraught with legal perils, is the acquisition of their home. In California, these transactions are handled by real estate agents and usually take place without any legal advice.

Most people rely on tax preparers to help them interpret their obligation to pay taxes. Many people turn to legal assistants or notarios for help with immigration, landlord-tenant problems and the like. For many people, their only contact with the justice system is when they are in custody or divorce proceedings. In more than 60 percent of  custody cases, neither side has an attorney; in some 85 percent of these cases, one party does not have counsel. In divorce matters, more than 50 percent of the time, one side is unrepresented. 

Existing law is a barrier to discrete task legal services

There are a number of barriers that prevent attorneys from taking on discrete task representations. One of them is the rule that, even if the attorney has undertaken to provide assistance on a discrete part of a problem, the attorney has a duty to advise the client about risks that exist outside of the area of the representation.

Thus, in Nichols v. Keller, 15 CA4th 1672 (1993), an attorney who was retained to prosecute a workers' compensation claim was held to have a duty to advise the client about possible third-party claims. Another barrier to some forms of discrete task attorney representations is the application of the general rules of conflicts.

Conflict rules make it difficult or impossible for an attorney to operate in a court-supervised setting, such as a self-help kiosk located in a courthouse, where it may be that parties with conflicting interests seek help in filling out court papers. Yet another barrier to discrete task practice is the characterizing of some help to pro se litigants as forbidden "ghost writing." 

With respect to these three barriers, it may be possible to satisfy the policy goals underlying existing law and still allow attorneys to provide discrete task representation. For example, the legislature could create a disclosure form, much like the one used in the context of a real estate transaction, which would provide disclosures about the limits of the representation.

Then, the law could provide that the attorney use of this disclosure form during the course of a discrete task representation would create a safe harbor for the attorney, preventing the client from later charging that the attorney had duties beyond those specified in the disclosure form. Similarly, the conflict rules could be amended by statute to provide that, when an attorney is acting at a court-supervised legal aid center, assuming there have been proper disclosures to the client, the normal rules of conflicts would not apply. Finally, again with proper disclosure to all concerned, including the court, we could adopt rules that would allow attorneys to provide limited help to pro per litigants, without becoming counsel of record. 

The State Bar can lead the way toward discrete task legal services.

The State Bar's primary missions are admissions and discipline. The State Bar should keep its focus on these important tasks. However, the State Bar is also a unified bar with a duty to lobby on behalf of the profession for improvements in the administration of justice.

The State Bar is in the best position to provide leadership in the area of discrete task representation. It has the staff and experience to identify the barriers to this process and the ability to lead the way to eliminating these barriers. The effect of such leadership would be to make it more affordable for citizens to have access to professional help, provide work for attorneys and strengthen the rule of law.