MCBA panel shares views on limited scope legal representation

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Access to justice for low-income individuals is a troubling topic, and there is no Gideon on the civil side of the justice system to ensure representation as Gideon v. Wainright, 372 US 335 (1963) does for criminal defendants.

The New York Office of Court Administration wants to expand the concept of unbundled legal services or “limited scope legal representation” in an effort to better promote access to justice.

Many states already have endorsed the concept of unbundled services, and the New York State Bar Association will be voting on the NYSBA’s position this November, according to June Castellano, who serves in the NYSBA House of Delegates.

Wearing both her NYSBA hat and her sole practitioner hat, Castellano was one of the panelists at the Sept. 13 program sponsored by the Monroe County Bar Association President’s Commission on Access to Justice.

The panel

Diana Irizarry, chair of the MCBA President’s Commission on Access to Justice, introduced the diverse panel she gathered for this free presentation, titled “The Pros and Cons of Unbundled Legal Services/Limited Scope Legal Representation.”

Irizarry serves as a Monroe Family Court support magistrate at the Hall of Justice and provides the OCA advice on how to improve access to justice in her role as commission chair.

Adrianna Anderson, Equal Justice Works fellow, Legal Assistance of Western New York, Inc., works out of the Geneva LawNY office and represented legal service providers on the panel.

Hon. Richard A. Dollinger, Court of Claims, acting State Supreme Court justice, shared some of his concerns from the judicial point of view.

Hon. Craig J. Doran, Supreme Court, administrative judge for the Seventh Judicial District, provided the perspective of the OCA along with some of his own questions.

Castellano, a frequent pro bono volunteer who has also served as president of both the MCBA and the Greater Rochester Association for Women Attorneys, addressed the upcoming NYSBA resolution first then gave her personal view as a sole practitioner.

University of Buffalo Law Professor Bernadette Gargano served as moderator for the panel , sharing her experience setting up a clinic to allow law students to help provide limited scope advice in pro se litigation in Buffalo. She also discussed the changing face of legal practice and how ethical issues lurk in every setting.

Legal service providers

Requests for legal services far exceed the capacity of legal service providers. Anderson, who concentrates on consumer protection law, explained her role in a relatively new program for rural clients called Closing the Gap.

“Albany started their Closing the Gap program in April and has already helped 40 clients,” Anderson explained.

The local Closing the Gap program is a partnership between Pro Bono Net, LawNY, and Volunteer Legal Services Project of Monroe County, Inc. in which rural clients are connected with volunteer attorneys in Rochester via video conference.

The program currently focused on consumer debt and eviction cases. A client comes to one of the outlying LawNY offices (Bath, Elmira, Geneva, Ithaca, Jamestown and Olean), and is connected via webcam/ video conference with a volunteer attorney, who just needs a computer with webcam to review the facts and guide a client through a pro se pleading.

“The client must understand the limited scope of the attorney’s involvement, and typically a retainer specifying the limited scope is signed and returned to LawNY staff,” Anderson stated, offering a sample retainer agreement to the audience.

What if

What if the client needs more advice down the road?

“The key is to be very clear about what you are taking on,” said Dollinger, who assumed the “Winnie the Pooh” role of Eeyore, the long-suffering, pessimistic donkey, raising the potential negatives and stumbling blocks that may be introduced to such ad hoc lawyering.

Dollinger expressed some malpractice concerns along with potential ethical issues.

“Unbundled legal services are common in Wisconsin, Oregon, California, Arkansas, and Mississippi,” he noted.  “We need to be clear on where representation ends.”

Leveling the playing field

“There is a need for modest- and middle-income people to access discrete legal services,” Castellano said. “I’ve certainly done consults where the client understands they are not engaging me in representation but merely having me review a particular document.”

“None of us want to send someone away without answers,” added Doran. “We are in the business of solving problems and helping people. Director of New York State Access to Justice Program Judge Fern Fisher is a great advocate for limited scope legal representation.”

As deputy chief administrative judge for New York City Courts, Fisher is unquestioningly aware of the financial barriers that prevent many people from achieving justice, he noted.

But there are many trap doors, pitfalls and challenges that need to be identified, Doran noted.

“We need to be careful and creative.  The Seventh Judicial District Help Center is a great example of a collaboration to find solutions for the underserved,” he added.

Ethics

NY Rules of Professional Responsibility Rule 6.5 already provides some leeway on conflict of interest issues for attorneys involved in court-run programs or legal service providers, but there are numerous conflict concerns that may need to be spelled out more thoroughly.

“There are many potential ethical issues,” Gargano said. “There is an ABA handbook available online for free, just Google ‘handbook on limited scope legal assistance.’ It discusses some of the ethical issues that have been reviewed in recent years.”

Limited scope legal representation has probably been around since sometime in the 1960s, and along with it have come trends to find do-it-yourself forms online and some states’ acceptance of legal technicians (non-lawyers) to handle certain types of legal matters.

“In Washington, D.C., non-lawyers can actually own a law firm,” Gargano said. “Ghost-lawyers is the term sometimes used for attorneys who assist pro se litigants in filling out petitions and pleadings.”

Do ghost-lawyers ethically need to disclose their involvement in litigation? Courts across the country have been debating this more and more.

New York opinions dealing with ghostwriting can be found at NYC Bar Op 1987-2, NYSBA Op. 613 (1990) and New York County Lawyers Opinion 742 (2010).