IS THIS THE SOLUTION TO PRO SE LITIGATION?

August 25, 2010 § 7 Comments

A post about proposed changes to the pro bono rules for lawyers is here.  There is a thoughtful comment to that post that highlights some dimensions of the situation.

It’s no secret that pro se litigants are appearing more and more frequently in Chancery Court.  Whenever I ask a self-represented litigant why he or she did not hire an attorney, cost is always the response. 

In our district, it’s not uncommon for a simple, irreconcilable differences (ID) divorce to cost upward of $1,500 to $2,500, plus court costs, although I have heard of some lawyers charging as little as $250 plus costs for an ID divorce with no children. 

Self-representation, however, is not limited to routine, uncomplicated matters like ID divorces involving no children, no property, no joint debts and no other problems.  I see pro se litigants in all kinds of matters.  I presided over a termination of parental rights case not too long ago where the father represented himself and lost.  I have seen pro se litigants in an adverse possession case, contempts, paternity, and even in a partition suit where, believe it or not, both sides were pro se.  I can say unequivocally that I have never seen a party who proceeded pro se in a contested case leave the courtroom in better shape legally or equitably than he or she was when they walked in. 

Although most all say that they choose to proceed pro se due to the rising cost of legal fees, I find in the course of things that others simply underestimate the complexity of the issues involved and think that legal matters are little more than filling out a few sheets of paper and filing with the court.  Still others are lured by the siren-song of the internet sites that push cheap fill-in-the-blank do-it-yourself legal proceedings.  The common denominator among all of these is that they are looking for a cheap, one-size-fits-all, easy solution to what may be a complicated situation.

These are the people who wind up in court pro se.  In many cases, those pro se parties are getting simple ID divorces using kits they purchased on-line.  Some are getting pleadings prepared by “secretarial services,” in violation of state law prohibiting practice of law without a license.  The simple cases with no children do not usually give rise to later litigation.  Pro se litigants with children, however, are a recurring problem.

Problems with child support provisions, joint and sole custody provisions, division of property, and allocation of debts are all common problems in these do-it-yourself cases.  I have one pair of parties in Clarke County that I have sent back to the drawing board four times, and, although they are my most extreme case, they are by no means the only case that I have had to treat that way.  I have just about decided that, if there are children, I will require the parties either to have an attorney or I will appoint a guardian ad litem at their expense. 

The self-represented parties seldom understand why they can’t simply have their papers signed, and they are invariably frustrated when I tell them that I can not advise them how to draft an acceptable child support provision, or why that waiver filed a week before the complaint won’t cut it, or why they need a property settlement agreement when they don’t have any property. 

How do we make legal services more affordable, thus reducing the pool of pro se litigants?  Some claim that “limited scope representation,” also known as “unbundling” is the answer to lower legal fees.  In essence, it is a representation arrangement in which the respnsibility of the lawyer is limited and the fee is resultingly lower.  The attorney may, for instance, agree only to advise one of the parties about the language of the property settlement and child support agreement, or simply to prepare pleadings.  The clients buy only as much legal service as they feel they need. 

The Supreme Court’s Commission on Access to Justice proposed an amendment to Rule 1.2 of the Rules of Professional Conduct to allow for limited-scope representation.  They met on Monday, August 23, and since the comment period has expired, I assume they will pass the rule on to the Supreme Court for adoption.  I am all for it.   

Although the proposed rule approves and encourages the practice, it does not address how a representation agreement would read so as to cover all of the ethical concerns that might arise.  There is information available online, however, that may provide a starting point for lawyers.  The LAWYERS USA website offers some information.  The ABA has some info.  The Civil Justice Network also has some info.  A paper presenting the pros and cons of the practice is here.

Whether limited scope representation is the answer to the growing numbers of pro se litigants, I have no way of knowing.  I do believe that it has the potential to help dramatically because it will decrease the amount of time judges will need to devote to scrutinizing pro se litigants’ pleadings and paperwork. 

One caveat:  I will not approve a limited-scope representation arrangement in any probate matter.  Rule 6.1 of the Uniform Chancery Court Rules requires that every fiduciary retain an attorney, and you will be expected to continue in your role as counsel once you are in until you find substitute counsel.  I will not allow the operation of the new rule (if it is enacted) to create an end-run around Rule 6.1.

An approach to the pro se phenomenon that I can not endorse is continued encouragement of laypeople to tackle more of their own legal matters.  I saw a bar-produced video of smiling legal professionals encouraging people to handle their own “routine” legal matters, and making it sound as easy as folding a paper airplane.  I don’t understand this approach.  The American Medical Association does not promote do-it-yourself tonsillectomies, but then medical ethics includes the fundamental proscription, “Do no harm.”  To me, the solution is not to encourage people to do their own legal surgery.  The answer is to make it more likely that they will have a competent surgeon. 

I am not a fan of pro se litigation.  Even seemingly simple, routine matters may have serious implications for the parties, and I assure you that they have absolutely no clue about those ramifications. Self-represented litigants seldom have a grasp of the ramifications and complexities of equitable distribution, the various forms of child custody, or joint debt, to name but a few of the many legal snares that await the unwary.  Also, the parties are under no duty to be honest and forthright with the court, leaving open the very real possibility of fraud or worse.  Without legal advice and the check that an ethical attorney provides, the parties’ paperwork can create more problems than it solves, and even in the absence of lawyers it is clearly not the duty of the judge to advise them about the possible mess they may be creating.  Yet, every day, inexorably, we see more and more self-represented litigants. 

I am a firm believer in access to justice, but in our commendable haste to discover a way to do that, let us not lose sight of what it is we are trying to achieve:  access to justice.  Not access to disaster.  Limited scope representation may be a good first step toward alleviating this problem.

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