Barriers to Innovative Solutions

1. Barriers to Innovative Solutions By Christina Holland Harry J. Jacobus III Matthew Kalas

2. Topic Overview • Barriers Within Court System • Barriers Within Legal Profession • Ethical Barriers • Cultural Barriers between potential clients/legal community

3. Barriers Within The Court System

4. Does the Court have a duty to pro se litigants? • Farreta v. California: SC says in dicta that pro se litigants not excused from compliance with procedural requirements • SC has not addressed the issue directly of whether courts owe pro se civil litigants a duty to assist throughout trial process • However, Haines v. Kerner: Judges should liberally construe pro se litigants’ pleadings

5. The Problem • Lower courts are split on whether to extend Haines decision beyond pleadings • E.g. some courts recognize pro se litigants are entitled to instruction re: failure to respond to summary judgment motion • Others hold these litigants to same standard as represented parties

6. Do court administrators have a duty to pro se litigants? • General rule: Court personnel and administrators are forbidden from giving “legal advice”. • Reasoning: clerks are not lawyers and should not give advice

7. The Problem • If we are looking to “unbundle” legal services, clients may be on their own in some aspects • Problem: what does “legal advice” mean as applied to court personnel? • Some courts allow clerks to fill out routine forms • while others take hand’s off approach

8. Continued • Even in helping fill out routine forms, clerks can give bad legal advice • “Hands Off Approach”: leads to inconsistent treatment and unjust dismissals on procedural grounds of meritorious claims

9. Unexpectedly hitting these barriers can feel like this…

10. “Notice to people acting as their own attorney. A person acting as his own attorney is held to the same standards and duties as an attorney admitted to practice in the state of Illinois. You are expected to know what the law requires, and how to accomplish your purpose in accordance with the applicable statutes and court rules. No court employee is obligated to tell you what you have to do, how you are to do it, or what you should do under the circumstance. In fact, the judges, clerks, deputies, and all court personnel are specifically prohibited by statute from giving you legal advice and can be fined for doing so. If you need advice please see an attorney. If you do not have a lawyer, contact the Chicago Bar Association. If you do not have the funds, seek Legal Aid Bureau, the United Charities of Chicago, or the Legal Aid Foundation. The clerk is not required to provide and does not carry a complete stock of pre-printed pleading forms. Certain limited forms, general in nature are available and provided as needed.”

11. No court employee is obligated to tell you what you have to do, how you are to do it, or what you should do under the circumstance. In fact, the judges, clerks, deputies, and all court personnel are specifically prohibited by statute from giving you legal advice and can be fined for doing so.If you need advice please see an attorney.

12. Barriers within the Legal Profession

13. Individual Practitioners • Concerned “unbundling” will take $ away from status quo or; • Concerned that these cases will not be profitable

14. Historical Overview • Organized Bar Associations have a history frowning upon innovative solutions for giving legal advice including: • Radio • Newspaper • Seminars • 900 telephone lines

15. Radio • “The Goodwill Court” example • “People’s Court” on the radio • Used actual judges and lawyers to give advice • Kept identities confidential • Advice given openly over airwaves • Disclaimer to listeners

16. Continued • Ran for only 3 months • New York City Lawyer’s association denounced the show + cautioned lawyers and judges who participated • Other State Bars called for cancellation • ABA committee on Professional Ethics • NY Supreme Court issued rule that prohibited lawyers from taking part or face professional misconduct violation

17. Why? • Lack of confidentiality • Inadequacy of advice given (no research) • Lack of dignity • Fear that Listeners would erroneously rely on advice given • No recourse for “clients” • Poor economy

18. Restrictions on Writing • Must not give “specific advice” legal advice • ABA Opinion 270 “legal columns must be limited to answering general questions • Same concerns as Radio example

19. Seminars • Split among bar associations • Some allow for giving general legal information and tailoring legal advice to specific facts by enquirer • Others emphatically warn lawyers not to answer specific legal questions • Most analogous to online chat room situation

20. 900 Telephone Numbers • May create an attorney/client relationship • May not allow for disclaimers

21. Ethical Barriers

22. Examples of How Ethical Barriers Arise • Ghostwriting court documents or other legal documents • Responding to legal questions online via chat rooms, advice boards, legal websites

23. Ethical Barriers: Unauthorized practice of law • E.g. Providing legal advice to an online question

24. Ethical Barriers: Unintentional creation of an Attorney/Client relationship

25. Does responding to an online post create this relationship?

26. Restatement (Third) of the Law Governing Lawyers: • A relationship of client lawyer arises when: • (1) a person manifests to a lawyer that person’s intent that the lawyer provide legal services for the person; and either • (a) the lawyer manifests to the person consent to do so; or • (b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services.

27. Element #1: Request for legal services • Courts have traditionally interpreted this broadly • Posting a legal question online is will likely be seen as a request for legal services • no other reasonable motive for doing so

28. Element #2: Lawyer’s Consent or Failure to Manifest Lack of Consent • Many cases have held that providing specific legal advice in response to a question is a manifestation of consent • Disclaimers: • Conduct inconsistent with an overt denial generally overrides disclaimers

29. ISBA Advisory Opinion • “Lawyers participating in chat rooms or other on-line services that could involve offering personalized legal advice to anyone who happens to be connected to the service should be mindful that the recipients of such advice are the lawyer’s clients, with the benefits and burdens of that relationship.” • Key – personalized legal advice

30. Complications created by attorney/client relationship • Duty of competence • Confidentiality • Conflicts of interest

31. Duty of competence • IL Supreme Court Rules of Professional Conduct, Rule 1.1: • A lawyer shall provide competent representation to a client • Potential Problem: • If the lawyer is advising a client on the law of a jurisdiction in which he is not licensed, then the lawyer is likely not competent to give that advice • How does the client know that person responding is actually an attorney?

32. Confidentiality • IL Supreme Court Rules of Professional Conduct, Rule 1.6 • A lawyer shall not, during or after termination of the professional relationship with the client, use or reveal a confidence or secret of the client known to the lawyer

33. Potential problem • When providing legal advice through an online forum, are the communications secure enough to ensure confidentiality? • The locations of various unbundled legal service providers may not be adequate to ensure confidentiality • Kent Help Desk

34. Conflict of Interest • IL Supreme Court Rules of Professional Conduct, Rule 1.7: • A lawyer shall not represent a client if the representation of that client will be directly adverse to another client.

35. Potential Problem • In providing advice online (and often with a screename), the lawyer is unable to determine who the client is and if representing that client would be adverse to the interests of the attorney’s other clients

36. Ethical Duties owed to Court: Duty of Candor • When providing unbundled services such as the ghostwriting of pleadings, does this constitute a lack of candor towards the court?

37. Effect • Because many of these potential ethical problems have not been authoritatively resolved, many lawyers remain hesitant to provide unbundled services in both the real world as well as the online world

38. Cultural Barriers between potential clients/legal community • Diversity • Language • Historical • Temporal

39. Diversity Barrier

40. Diversity needed among Legal Services Staff itself • National Diversity in the Legal Services Community Action Agenda • A summary of the National LSC/NLADA Diversity Conference, October1, 2001

41. The Language Barrier The Immigration patterns in Chicago Suburbs as derived from the 2000 Census Data show the largest immigrant group Increases between 1990 and 1996 As Follows: • India • Mexico • Poland • Former USSR • Korea

42. The Historical Barrier • Quote from LA Times July 14, 2002 • “A lot of these people come from an inherently oppressive regime…they don’t think of gong to the government for assistance and public benefits.”

43. The Temporal Barrier • Access to the court system after working hours • Location inconvenient • Time inconvenient