May 1999

Positive Approaches to 21st-Century Access to Justice

by Washington State Supreme Court Chief Justice Richard P. Guy

As we prepare for the challenges and opportunities of the 21st century, we face our most challenging and significant of responsibilities: redesigning our civil justice system to provide efficient, fair and prompt civil justice services to all, including those who cannot afford the cost of conventional forms of legal representation and dispute resolution.

To meet this challenge, all who are involved in the delivery of legal and justice services (lawyers, judges, law schools, county clerks, law libraries and dispute resolution professionals) must work together to devise — and to try — innovative, flexible and varied solutions. This challenge raises several issues of concern to the bench and bar, including:

• How should the role of lawyers and other legal service providers be defined? In light of our obligation to protect the public and in light of current trends in our civil justice system, what kinds of controls should be placed on persons who are permitted to provide limited legal information or assistance outside the traditional law office setting?
• How can technology be used, both in and outside the courtroom, to provide accurate and helpful legal information and forms to those who cannot obtain a lawyer? How can technology be used to provide access to information, to witnesses or to the court — and to reduce the high cost of legal proceedings?
• How do we maintain an efficient legal system while providing an effective, fair and uncomplicated opportunity for people to represent themselves?
• How can we enable legal professionals to ethically provide limited, low-cost legal services, such as discrete task or "unbundled" legal representation, that are both effective for the client and viable for the lawyer?

In this article, I will touch on some of the issues raised by these concepts. My goal is not to offer pat solutions, but to stimulate a lively discussion in the legal community that will lead us toward positive approaches to meeting the challenges presented. In discussing these issues, I begin with the premise that equal justice for all is a cornerstone of our democracy. I make the assumption that the legal community substantially agrees that (1) there are significant unmet civil legal needs for those who cannot afford conventional methods of legal representation or dispute resolution; (2) all involved in the legal community share a responsibility to enhance justice for all members of society by, in part, improving meaningful access to our legal system; and (3) solutions to the challenges posed by the issues listed above must be approached with equal justice in mind.

The Challenge

In June 1998, the Washington State Bar Association Board of Governors unanimously adopted a resolution declaring a civil legal justice emergency and recommending substantial increased funding for civil legal services. The Bar Association resolution is based on the premise that "civil access to justice is a chronic problem that has reached a crisis level in Washington state." The Bar Association's call for action was based on the work of the WSBA's Pro Bono and Legal Aid Committee, which documented the enormous, unmet and increasing demand for civil legal assistance. The Committee reported that the escalating demand is caused by reduced federal funding and a sharply increasing need among persons involved in the legal system who are of low income or who are vulnerable due to disability or language or cultural differences. We recognize, as well, that there are tens of thousands more whose incomes are too high to qualify them for free civil legal services, yet too low to afford access to professional representation in our legal system.

These economic realities result in problems which are all too familiar. Multitudes of individuals try to represent themselves in court, often in complicated family law matters with disputed issues regarding the care of minor children. The majority of parties dissolving their marriages are not represented by attorneys but appear pro se. In many of these cases, unrepresented parties are able to obtain some helpful relief. Unfortunately, all too often this is not the case. In family law cases, it is frequently the children who suffer the consequences of inadequate or no legal representation of the parents. Of those who represent themselves in their dissolution actions, up to 80 percent must return to court for modification of the decree or parenting plan because of changes that occur or because some necessary element of the dissolution was not made a part of the original action. The problem is not limited to family law. Many have no representation in crucial administrative hearings that determine whether or not they are entitled to receive or retain public benefits, housing, adequate health care, education, transportation, and other essential needs.

The rising demand for very low-cost legal assistance is currently being met, in some cases, by unregulated, unsupervised and often unqualified "paralegals" who fill out, or assist in filling out, forms for a fee. Many people outside the Bar share a perception that effective civil legal representation is too expensive and that lawyers do too little to provide it at a reasonable cost.

Washington's lawyers have a long, impressive history of providing generous pro bono services. In the area of giving money and help to provide services to persons who need access to the system, but who cannot afford a lawyer and do not know where to turn, the lawyers of this state have been magnificent. Our courts would be unable to assist our citizens in resolving their legal problems without the contribution of pro bono lawyers. But the current need for pro bono services is overwhelming. Although we can cite many instances of exemplary, self-sacrificing work on behalf of low-income litigants by our colleagues in the Bar, pro bono services, delivered on a case-by-case basis, cannot provide a definitive solution to the problem of providing adequate, affordable access to our civil legal system.

It is time that we looked at the broad picture to determine the best methods of providing access to the increasing numbers of litigants who cannot afford to pay the costs required to have their needs met by our civil legal system. The search for long-term solutions must include efforts toward securing consistent, full funding for legal services programs. Until that becomes a reality, however, we must focus on improving access to the legal system, with the understanding that our system currently provides full access for a few and little or no access for the many. I do not mean to imply that the Bar and the judiciary are not working toward resolutions to the problems that exist. There are, of course, current efforts being made to increase access to justice. For example, the Washington Supreme Court has created the Access To Justice Board, which has worked very hard to enhance access for the many. My comments here are to encourage all who read Bar News to begin thinking about access-to-justice problems they observe, and to join in a dialogue about how we should address those problems.

Defining and Providing Legal Services in a Changing Environment

Due to the economic realities discussed above, there is a very significant, market-driven demand for low-cost legal information and assistance. This demand is often filled by untrained and unregulated individuals. This new and burgeoning "legal business" calls for a thoughtful response from all who participate in the civil justice system, for it threatens to undermine one of the crucial tenets of the system: protection of the public from inaccurate, harmful "advice" about legal rights. Protection of the public is the fundamental rationale guiding our decisions determining the scope of "the practice of law" and the qualifications required of those who engage in the practice.

In any discussion of the scope of the practice of law, we must consider when non-attorneys should be licensed, regulated, and permitted to engage in what may technically be the practice of law. In one area so far, the Supreme Court has determined that allowing and regulating the limited practice of law by non-attorneys is safe and is justified in order to save time and expense in run-of-the-mill real property transactions. (See APR 12, "Limited Practice Rule For Closing Officers.")

I recently chaired a group that studied whether a similar "limited practice" rule should be instituted for courthouse facilitators. The facilitators help pro se litigants (almost always in family law cases) select forms, and in some instances they give what could be called "legal advice" about how to fill out the forms and what to do with them once they are completed. These facilitators perform a vital service to many people who represent themselves. Often the pro se litigants have no other recourse but to follow the advice of the facilitator: the pro se litigants frequently cannot afford to hire a lawyer; civil legal services offices do not have sufficient staff to help them; there are not enough lawyers volunteering to take all the cases; and the court cannot give them legal advice. Continued study is necessary in this area because facilitators, who work either for the clerk's office or for a judicial administrator, may be caught between admonitions not to practice law and the practical fact that what they do to help people who are in need may fall within the definition of "the practice of law."

Our guiding principle in defining and regulating the practice of law has always been protection of the public, and this is surely what has motivated current efforts to redefine the limits. There are legitimate questions about whether the practice of law should be defined in the abstract by court rule.¹ However the practice of law is to be redefined, it must be done with the harsh realities of the equal justice crisis in mind.

The demand for low-cost legal information, advice and assistance is one of those realities, and it will be filled somehow. I am not suggesting that I know what my final views on proposed rules in this area would be. I do wonder, however, whether it would be adequate to institute a rule that simply makes illegal the provision of low-cost legal advice by non-lawyers. It may be that enforcement of such a rule would simply drive the low-cost providers further underground, having a potentially harmful effect on litigants who are in such desperate need of help that they are willing to turn to these providers on the assumption that "something is better than nothing."

There should be study of whether the regulation of low-cost lay providers is advisable. If it is, we could then impose standards and controls, and perhaps mandate the use of officially approved forms. Such an approach may be able to protect the public from being victimized by unqualified people, while expanding the assistance available to those who cannot afford full legal services.

Technology

One of the most promising and exciting tools for expanding the availability of accurate legal information and assistance is that generated by technological advances. Rapidly improving technology demands that we re-examine the way we do business. The advent of the Internet, e-mail, websites, and forms that can be filled in and filed electronically (possibly soon by voice activation) and printed in final form, creates a golden opportunity for all involved in the civil legal system to participate in developing new ways of providing low-cost legal information and assistance. With funding, every superior court in this state could provide the public with access to current, correct forms and user-friendly instructions via public-access computers, for at least family law actions and domestic violence protection proceedings.

These court-sponsored programs would be one way for the Bar to address the computer-literate public's demand for legal information. That demand is now met (at least in part) by private, unregulated lay people. Will electronic information supplant the services of an attorney for those who could secure one? Rarely. Forms and general information can never take into account those nuances of a case invoking the need for the thoughtful response that only a lawyer can provide. But through electronic means we could provide accurate, basic information to many low- and moderate-income persons who desperately need it. We could also help to assure courts that the forms are correct and are likely to be correctly completed. There already is movement in this direction. The Communications and Technology Committee of the Access To Justice Board is currently working with the Office of the Administrator for the Courts to develop two interactive public-access terminals in Chelan and Thurston Counties. Microsoft has been approached for possible funding for this project. In addition, the Northwest Justice Project maintains a website, open to anyone, which contains a wealth of information and instructions to provide help for the unrepresented. These materials are written, updated and maintained by experienced professionals.² 

Professionally staffed telephone advice or referral lines can also help to address the need for low-cost legal information. The Northwest Justice Project's CLEAR line — offering information, referral and brief advice by professionals to those whose incomes qualify them for free services — is an important step in this direction. Due to funding constraints, however, the project is unable to fully meet the overwhelming need. We should explore whether there are other telephonic ways in which lawyers are able to provide brief, informative legal answers to people who desperately need legal information and who are able to pay for some legal services.

These efforts to use technology as a way to fill part of the access-to-justice gap should be just the start of an ongoing commitment by the Bar, the judiciary and the equal-justice community. Forms and websites will never equal full access, and there are many situations in which electronic information, alone, is inadequate. Until a lawyer or other appropriate level of comprehensive help can be made available for every person with a legitimate need for assistance, however, electronic information, regulated in a professional manner, can help to meet some of our needs.

We should continually be open to using technology in any number of ways that will help make access to witnesses, information, trials and other hearings less expensive, more efficient, and more available to all who use the civil legal system.

Pro Se Litigants

Many of the ideas touched on above will help in addressing the need for accurate information for those trying to represent themselves in a complex system. We must search even further, however, for other ways that will enhance the ability of unrepresented parties to navigate the system. We should do this because it is fair and just, but also out of self-interest — better prepared pro se litigants will make the system more efficient for all. Judges, opposing parties and counsel should, for example, be spared the additional time needed to educate pro se litigants who fail to understand and properly follow our procedural rules. We can never create a perfect system for unrepresented parties, but there may well be new ideas that can greatly help in this area.

The most obvious way to assist the unrepresented is to simplify forms and procedures where we can. The mandatory family law forms are currently being reviewed to see whether they can be simplified, and yet still meet the important goal of uniformity. Not every area of law is susceptible to a forms approach, but we should think about whether simplified forms in other areas of practice are workable, especially in connection with the opportunity to make forms available to all on public-access computers. In addition, we should explore the possibilities for model local court rules that average readers can understand. We might even consider whether some matters or issues can be fairly and expeditiously handled in less formal, administrative-style proceedings. Alternatives to dispute resolution —private judging — such as mediation and arbitration should be encouraged in certain cases. Cost, time, selection of a judge, informality, and certainty of trial date are some of the reasons why private judging might appeal to some litigants. We should consider these as favorable alternatives that may be offered to litigants to resolve their cases. Finally, we need to find better ways to serve the disabled and others who are vulnerable and who may be forced, because of lack of money, to represent themselves. We might, for example, develop methods for using TDD telephone technology, and provide translation or interpretative services for persons facing language difficulties.

Our courts should also consider providing unrepresented parties with procedural information. Federal district courts in many jurisdictions send unrepresented parties clear written information at the outset of a case. These notices detail requirements such as serving the opposition with all communications between the pro se party and the court, how to set motions for hearing, and how cases proceed through the system. Courts cannot, of course, provide specific legal advice, but they can apprise parties clearly, and in writing, of the basics of navigating the rules. We should strongly consider ways to do this.

Helping Lawyers Help

There has been much recent discussion about "discrete task" or "unbundled" legal representation, that is, a lawyer undertaking specific tasks or representation at particular stages of a case, but not taking representation responsibility for the whole case. See, for example, two recent articles on this subject by Barrie Althoff, WSBA Chief Disciplinary Counsel.³ This is a large topic in itself, and should be the subject of longer treatment than I can provide in this forum. I do want, however, to introduce the "equal justice" aspects of the "discrete task" concept.

Discrete task representation is a possible method of addressing part of the huge unmet need for legal services among those who cannot afford any (or very little) attorney services. Discrete task representation is not necessarily the best way for these needs to be met, but given that a lawyer is not available to all, it may provide a way in which some citizens can gain more access to the system than they otherwise would have.

Members of the Bar have raised many legitimate and practical questions about discrete task representation. Lawyers worry that even if they agree to represent someone for just one important hearing, the judge will take a "once in, you stay in" approach. In addition, there are serious ethical issues to be faced, such as whether the client is adequately protected, or whether lawyers or litigants are obligated to disclose to the court that an attorney (or "paralegal service") drafted the pleadings that have been submitted by a party who is officially appearing pro se. Some of the problems might be addressed by court rules that require certain kinds of disclosures, set ground rules for mid-stream withdrawal, and establish protections for a party whose attorney has withdrawn after assisting the party to gain temporary relief pending trial. There may be other ways as well to begin to addressing these issues. We need to consider the pros and cons of discrete task litigation to determine whether lawyers can provide these services in a responsible and ethical way to those who otherwise would have no legal advice or assistance in complex cases.

Conclusion

The intent of this article is to stimulate discussion on these important topics. I look forward to addressing this most important challenge. And I look forward to engaging in discussions about these topics with members of the public, the Bar, the judiciary, and the entire equal justice community as we work toward solutions that will ultimately provide "equal justice for all."

Notes

1 Some state supreme courts have declined invitations to define the practice of law by rule. In Re Unauthorized Practice of Law Rules Proposed by the South Carolina Bar, 422 S.E.2d 123, 124 (S.C. 1992). Oregon courts have declined to craft "an omnibus definition of (the) practice of law." Oregon State Bar v. Smith, 942 P.2d 793, 800 (Or. App. 1997). The Colorado Supreme Court has specifically recognized "the difficulty of formulating and applying an all-inclusive definition of the practice of law." Unauthorized Practice of Law Committee of the Supreme Court of Colorado v. Prog, 761 P.2d 1111, 115 (Colo. 1988).