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Responding to the pro per crisis

By Anthony P. Capozzi
President, State Bar of California

Anthony P. Capozzi, President, State Bar of California

Public perception of the legal system has shifted tremendously in the last few years, as has the reality that lawyers and judges face every day. Many law-yers have law practices that don't get them into a courtroom very often — and they may not be aware of the sea-change that has occurred.

Today, in California and elsewhere, an extremely high percentage of litigants go to court without lawyers. In family law, where the problems are most severe, 80 or 90 percent of all cases involve one or both parties appearing without lawyers. Our judicial system was designed for cases where lawyers represented both parties. But the old paradigm that we studied in law school no longer applies. We as a profession must work with the judicial branch to deal with this phenomenon.

Without question it would be better for everyone to have a lawyer to represent them. The State Bar remains committed to seeking adequate funding for legal aid to the poor and to encouraging and supporting lawyers doing pro bono work. But at current funding levels, there are 10,000 poor people for every legal aid attorney in California. The need so far exceeds available resources that it is important for us to develop and implement creative new approaches to ensure a basic level of support for all who need legal services.

Where individuals must face the court system on their own, often unprepared, the results are usually disastrous. Without the availability of a self-help center to learn some of the "ins and outs" of the process, pro per litigants seem lost, may lose a hearing they should have won, and even if they do win, they don't know how to get their judgment implemented. Pro per litigants, it has been argued, cause delays in the courtroom, put judges in an awkward position and frustrate attorneys representing the other party, or who are in the courtroom on other business.

At the State Bar, we are in the forefront of two of the latest trends in the legal profession — limited scope representation and support for self-represented litigants. Both are designed to make the system function more effectively and to ensure accessibility for all, regardless of income.

While the primary beneficiaries of these new developments are low-income families, the good news for lawyers is that lawyers also benefit from these developments in several ways. The unbundling trend opens up a whole new source of potential clients — those who can afford to pay a lawyer for part of their case, but can't afford full-service representation. Also, self-help centers often serve as a major source of pre-screened referrals to local bar association Lawyer Referral Services (LRS). One LRS stopped doing marketing because it got all the referrals it needed from the local self-help center. Also, court delays are reduced when pro pers are educated and have adequate support, and we all benefit when the judicial system runs more smoothly and efficiently — and when there is trust and confidence in the system.

Limited scope representation

It's been called many things: limited representation; discrete task representation; unbundling. It is a growing trend around the country, and it enables attorneys to work with many more people who could not otherwise afford an attorney. When the client and attorney agree to limit the scope of what the attorney will do for the client, they both win and the court benefits as well.

Limited representation must be done ethically and competently, and lawyers need to be especially cautious about documenting advice to clients; not all clients can proceed with limited representation. Both the Access to Justice Commission established by the State Bar and the California Judicial Council have taken the lead in providing the profession with guidance about how to provide limited representation ethically and competently (see "New hope for limited scope representation").

Self-help centers

At the recommendation of the State Bar, the Chief Justice named a Task Force on Self-Represented Litigants, and the proposed action plan that resulted from their work will be before the Judicial Council in February for its endorsement. The board of governors recently supported the draft report.

The plan calls for court-based self-help centers that are staffed and lawyer-supervised and includes guidelines for referring people to lawyers where they are not good candidates for self-representation.

Users of self-help centers are very often eligible for legal aid. In fact, several self-help centers in Los Angeles that keep records on visitors discovered that 85-90 percent of their users had poverty-level incomes. These centers are not encouraging people to self-represent when they could actually afford legal representation. That is the rare exception. What the centers do accomplish is to discourage the unauthorized practice of law by giving Californians an excellent source of information and referral.

Self-help centers help the courts save courtroom time, manage cases efficiently and avoid continuances, all important considerations during tight financial times. In both lawyer-supervised self-help centers and through limited representation, the lawyer involvement helps increase the quality of the pleadings, focuses the issues, helps eliminate client concerns that are not relevant in the case and leads to fairer outcomes. Both limited representation and self-help centers help litigants get their day in court, which is fundamental to our system of justice.

Family law involves issues that often go to our most important and basic societal needs — child custody, domestic violence, divorce. As long as courts are the only place where those conflicts can be resolved, reasonable and meaningful access to the courts is critical.

Lawyers are facing a challenging opportunity. The majority of Americans cannot afford full-service representation. Either we stay with our old "full representation or nothing at all" model, or we adapt and fill the need. Self-help centers and unbundling are bold, positive steps to ensure better access to the courts. The choice is clear.

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