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July 18, 2003


Filed under: pre-06-2006 — David Giacalone @ 9:58 am

A special welcome to first-time or returning visitors arriving in response to referrals from, or the Volokh Conspiracy.   You’re invited to browse our Archives and Ethics Resources, and to check the Recent Postings list in the righthand margin to see the many topics that have been covered here over the past few weeks.

Mass. Offers More Proof That Self-Help Centers Are Better Than Free Lawyers

Filed under: pre-06-2006 — David Giacalone @ 9:16 am

Although there was good news out of Massachusetts yesterday for legal aid lawyers and clients, the drama suggests once again that we need a better approach than offering free lawyers to consumers, if we are serious about solving the crisis in access to legal services.

As noted by, which pointed to this AP article  from the Hampshire Daily Gazette (7/17/03), lawmakers in the Massachusetts House voted yesterday to restore the $7.6 million budget of the Massachusetts Legal Assistance Corporation, the state’s main program for providing civil legal aid to the poor, and to restore $501,000 for another program that provides legal aid to the mentally ill. According to today’s Boston Globe, the State Senate agreed to go along with the House in order restore the funds by overriding vetoes by Gov. Mitt Romney.

Romney had used his line item veto to remove legal aid moneys. As the AP article explained :

“Romney defended his legal aid vetoes, saying the state simply can’t afford the programs in the midst of the ongoing fiscal crunch. The cuts were needed to help close a $200 million hole in the Legislature’s final budget, he said.

“‘One looks at which functions state government provides that are absolutely essential … and providing funding for civil lawsuits struck us as not being absolutely essential,‘ he said Wednesday. ‘It’s a good thing to do. It’s a nice thing to do. But it’s not essential.'”

Romney had also noted that “This would be a great place for firms to focus their pro bono work, which is doing civil litigation for the poor.”  The presidents of four legal associations wrote a letter to House Speaker Thomas Finneran urging him to override the vetoes before the summer break. (go here and click on “News Releases” to locate the bar leaders’ 7/17/03 letter).

Just three days ago (7/15/03), I argued that Pro Bono is Not the Answer to the Access Problem.  Now, I’m more sure than ever.   If legal aid funds for the poorest and most vulnerable Americans are in jeopardy in Massachusetts, they will be in grave danger across the nation, as each state faces its budget deficits.   Despite Romney’s flip remark about pro bono work filling in the gap, it’s clear that there will never be enough volunteer legal assistance to serve even a tiny fraction of the needs of the poor, and such programs don’t even try to help the scores of millions of moderate income consumers who are underserved by, or shut out of, our judicial and legal system.

However, with relatively modest public or private resources, we could establish Self-Help or Pro Se Centers in each community, and provide statewide internet access to forms and information that would allow most Americans — including many of the poorest consumers — to handle most of their everyday legal needs themselves (especially with added “unbundled” assistance from attorneys, as needed).

  • I do not have current figures, but in 1997, with an annual budget of $200,000, over 400 persons a day used the Maricopa County Superior Court’s Self-Service Center in Phoenix, and 150 more people per day logged onto their website, which offered access to over 400 documents and forms that are available at the Center. Presiding Judge Robert D. Myers has said that there has been a “tremendous” improvement in court operations since the Center opened.

Because the Massachusetts Bar Association was so anxious to see the legal aid funds restored, I looked at its site to see what else MBA is doing to help make the legal system more accessible.  My expectations were raised, after learning that Article XI of the Constitution of the commonwealth of Massachusetts provides:

“Every subject of the Commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person,property or character. He ought to obtain right and justice freely, and without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws.”

But, my hopes that MBA would be a part of the solution rather than the problem were dashed.   Here are some of the reasons:

  1. There has apparently been very little progress since the Probate and Family Court Department of the State judiciary issued its 1997 Pro Se Committee Report, Pro Se Litigants: The Challenge of the Future (Oct. 29, 1997, 85 pp. pdf format), and asked for the cooperation and assistance of bar leaders.  A search of the MBA’s large cache of documents, revealed only 3 from the Access to Justice Committee containing the term pro se, all of which were members-only Minutes, and the last of which was created in February, 2001.  A site-wide search for the term “self-help” returned similar dismal results.
  2. The Pro Se Committee Report made many recommendations, including creating educational materials for pro se litigants and court staff, plus Self-Help facilitators, hotlines, simplified forms, unbundling efforts, and more.  The response of bar President Edward P. Ryan, Jr., to these recommendations, can be seen in his article Educating pro se litigants on the need for counsel.   As suggested by its title, the article asserts that self-represented litigants (plus judges and court employees) must be educated so they understand that every litigant needs a lawyer.    A program would be established, that would match pro se litigants with attorneys who would charge them for their services (but, maybe a little less than usual, if necessary to get the business).  Amazingly, Ryan also complained that the self-represented got too much help at court, giving the “represented” clients the impression that they too might not need lawyers the next time they are at court. [As Dave Barry would say, I am NOT making this up.]
  3. Meanwhile, MBA is seeking Nominations for its annual Access to Justice Awards.  Explaining that “These awards offer a unique opportunity to recognize the efforts and achievements of MBA members for their public-service contributions,” the Notice states that Nominations may be submitted in various categories — every single one of which relates to an attorney acting as a salaried or pro bono lawyer or prosecutor, and none of which involves helping to improve access or services for those consumers wishing to represent themselves or to handle their own legal matters.
  4. The MBA’s list of sponsored legislation for the 2003-2004 session has more than three dozen entries, none of which appears aimed at helping the self-represented or otherwise improving access to the judicial system.
  5. An article with the promising title Local attorney works to make Probate and Family Court a more welcoming place (MBA Law Journal, by Krista Zanin, posted July 1, 2003) tells the story of an attorney who received an MBA Community Service Award through the Hampshire County Bar Association for her work beautifying the hallways of the court with a quilt and other artwork.

There is no reason to believe that Massachusetts is any worse than the majority of States when it comes to the approach that bar leaders are taking toward solving the access crisis — only lawyer-centered options are being pursued.    Such remedies will fall far short of serving the needs and preferences of potential consumers of legal services.   Consumer and their advocates should be taking their demands and arguments directly to legislatures and judicial administrators, and seeking private charitable funding, to bring the benefits of Self-Help legal services to the broad public.  Scarce pro bono and legal aid resources could then be used to help consumers unable to use self-help resources to assert their legal rights and needs. 

Disclosure of Malpractice Insurance Should Be Mandatory

Filed under: pre-06-2006 — David Giacalone @ 1:26 am

Robert Ambrogi’s LawSites blog (7/17/03)  points to an illuminating article from GPSolo Magazine (April/May 2003) entitled “Should Disclosure of Malpractice Insurance Be Mandatory?It’s a pro and con piece by James E. Towery and Edward C. Mendrzycki.

checkedBoxS Towery’s “pro” argument is comprehensive and persuasive. His short history of laws and rules on the topic is quite useful, and his description of the organized bar’s reaction to such proposals is quite dispiriting (but not at all surprising).  Most clients simply presume their lawyer has malpractice insurance, but Towery notes that “most experts in legal malpractice insurance believe that one-third or more of American lawyers in private practice are uninsured.” Towery (a past chair of the ABA Standing Committee on Client Protection and past president of the State Bar of California) makes far too many good points to catalogue them all here, but his final thoughts are worth quoting and contemplating:

When a client hires a lawyer, is the lawyer’s lack of insurance a material fact that the client is entitled to know? It is difficult to fashion a persuasive argument that clients are not entitled to that information. Lawyers operate under a state license and have a monopoly on practicing law. With that monopoly go certain obligations. Full disclosure to clients of material information regarding their representation is certainly one of those obligations. And if you don’t believe that most clients would consider information about lack of insurance to be material, I suggest you put that question to a cross-section of your own clients. You may be surprised by the response.

On the other hand, there appears to be far too much “con” in Mendrzycki’s counterpoint statement.   Mendrzycki, who chairs the ABA Standing Committee on Lawyers’ Professional Liability, worries that the issue is just too complicated to be explained to clients and that a rule would a problem by stigmatizing lawyers who don’t have malpractice insurance, or driving them out of practice.  Mendrzycki stresses that disclosure is simply not a proper issue for an ethics rule, merely because clients would want to know that information.  Among his scarier excuses for opposing the disclosure requirements are:

  1. “Although purchasing insurance may be a sound business practice, it does not implicate the traditional notions of morally “right” and “wrong” behavior that the disciplinary rules were designed to address.”
  2. “We accept the principle of caveat emptor in all manner of other business transactions, and hiring a lawyer should be no different.” [editor’s note: !!! ]
  3. “To many of our clients, the law is complex and nebulous, and there is no need to further complicate the attorney-client relationship or negatively affect the perception of the profession.”

As Towery explains, and HALT has reported, (ABA Punts on Mandatory Malpractice Insurance, Spring 2003 Legal Reformer, at 3), an ABA Committee did once propose the adoption of a Model Rule making disclosure of the lack of malpractice insurance mandatory, but many other Committees objected, and Ethics 2000 rejected the notion, and failed to include the requirement in the new Model Rules.

UPDATE (10-27-03): See Declarations & Exclusions Blog Should Clients Bear the Risk When Attorneys Risk Going Bare? for a discussion on informing the client when an LRIS lawyer drops his malpractice insurance.

UPDATE (10-31-03):  The October ’03 edition of Ethics and Lawyering Today reports that Michigan, Nebraska, and North Carolina have adopted rules requiring disclosure of malpractice insurance coverage (or the lack thereof), “bringing the total number of states with disclosure rules to eight (plus one with a mandatory insurance requirement).”

Update (Feb. 22, 2006): For information on activity in several states on this issue, see our post “the Arkansas Bar Association irks me.”

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