The ABA Standing Committee on the Delivery of Legal Services: Three Decades of Commitment to Meeting the Legal Needs of Moderate Income People by Caroline RothertBoch The American Bar Association Standing Committee on the Delivery of Legal Services works to “maximize access to legal services and justice for moderate-income people.” The Committee was formed as an ABA Special Committee in the mid1970s, and over the ensuing decades, has engaged in research, evaluation, and outreach to identify promising methods of legal service delivery, to advocate policies to expand service delivery, and to educate the bar and the public about the legal needs of moderate income households. It is the only nationwide body solely focused on legal services for those with moderate incomes, who do not qualify for legal services from federally-funded Legal Services Corporation grantees or other subsidized legal service providers. Currently, the Committee seeks to advance its mission through four goals that were formulated in a series of meetings in 2002 and 2003: To research and identify the scope, dynamics and impact of the unmet legal needs of moderate-income people; To create an environment in the legal community cognizant of meeting the legal needs of moderate-income people, and encourage the ABA, other bar associations and legal groups to actively respond to the unmet legal needs of this population; To identify, evaluate and advance innovative and exemplary models and develop mechanisms designed to meet the legal needs of moderateincome persons within the marketplace of legal commerce; and To identify policies, rules and laws that have an impact on access to legal services for those of moderate income; develop and advance those policies, rules and laws that create improved access to meet legal needs; and identify, debate and challenge policies, rules and laws that create barriers to meeting legal needs. The Committee carries out a number of activities in furtherance of its mission and its goals, including both participation in many state and local workshops and conferences on legal service delivery issues affecting middle income people and other efforts to engage the broader legal community in these issues. Throughout the decades, the Committee’s activities have evolved, but its focus on legal services for those of modest means has remained consistent. The Committee’s earlier emphasis on commissioning research has shifted to a focus on policy analysis and outreach, and as the practice of law has changed, so has the work of the Committee. An examination of the Committee’s history reveals how innovative it has been and continues to be. Several of the issues the Committee grappled with in the 1980s are still important today, including self-help law, alternative dispute resolution, and prepaid legal services. The Committee has distinguished itself by its prescience, its readiness to ask complex and difficult questions, and its willingness to press the legal community to find better ways to serve moderate income individuals and families. The 1980s: The Committee was formed as a Special Committee in the mid- to late-1970s, although written records of the Committee’s activities date from 1980. Legal Clinics During the early 1980s, the Committee focused its work on the phenomenon of legal clinics. Privately funded legal clinics gained popularity in the aftermath of the introduction of advertising into the legal profession, and clinics such as Jacoby & Myers and Hyatt Legal Services were thought to represent a significant new method of legal service delivery. To examine legal clinics, the Committee held a national conference in 1981, tracked the movement throughout the decade and conducted a survey of legal clinics led by Gary Singsen. The results of the survey, published in 1990, highlighted the methods that made legal clinics feasible: technology, use of paralegals, convenience office location, advertisement, use of forms, etc. The Committee continued to track changes in the legal clinic movement, which had been roughly defined as low cost advertising law firms, throughout the 1980s. However, legal clinics did not flourish, as many in the legal profession expected, and the Committee turned its attention to new areas. In 1984, the Committee held a Workshop on Delivery Models, which examined the areas of selfhelp law, legal clinics, pre-paid and lawyer referral services, alternative dispute resolution, and arbitration, a list strikingly similar to the methods for delivery of legal services to moderate income individuals used today. Pro Se Litigation The legal clinic phenomenon was not sustained, but the crisis in legal service delivery to moderate income individuals persisted. To continue to combat this crisis, the Committee broadened its mandate in the 1980s and initiated research into other legal service delivery mechanisms. The Committee began to concentrate on selfrepresented litigants. In 1983, it published a Model Lawyer’s Guide to Legal Services, which examined self-help law. Pro se litigation has remained a primary interest of the committee to the present day. In 1984, the Committee embarked on a study of self-help litigation in Maricopa County, Arizona. The study aimed to identify the problems faced by pro se individuals using self-help materials and problems encountered by court personnel in processing pro se filings, focusing on divorce and bankruptcy. The study explored how individuals choose to proceed pro se or with representation and how courts deal t with pro se litigants. From the study and other research on pro se, the Committee concluded that: 1) the bar had a role in formulating policy decisions regarding self help litigation; 2) the bar had a role in assuring the quality of self-help materials; and 3) the bar should take measures to alleviate the problems created by the courts by 2 self-help practice. In 1987, the Committee was involved in a self-help law program, examining the line between self-help and the unauthorized practice of law, and this continued to be an area of interest for the Committee throughout the years. The Committee’s work on pro se litigation has been instrumental in the creation of court based self-help centers as well as other resources for individuals representing themselves. Other Activities During the 1980s, the Committee expanded its scope to include other projects as well. The Committee was active in workshops examining compensated models and prepaid legal services. Discussions of innovative uses of law schools and law students in legal service delivery to moderate income individuals occurred throughout the decade. For example, the Committee floated the idea of creating legal internships for training newly licensed lawyers, similar to the medical internships for new physicians. The Committee also discussed the idea of a relocation project to send lawyers to underserved geographic areas. In 1989, the Committee was involved in the Conference on Access to Justice in the 1990s, which brought together more than 100 individuals to discuss the legal needs of moderate and low income individuals. Among the themes of this conference were: 1) “consumers are not generally well-informed about available legal services and how to achieve access to them” and 2) “some degree of de-legalization may be necessary to assure that legal needs of the public are met.” A key job for the Committee, noted one member, was to “consider how the legal system resolves particular kinds of disputes.” Following from this discussion, the Committee contributed to a Legal Services Gap Study in 1989 to determine areas of the legal system in which gaps in access to legal services exist. The 1990s: In the 1990s, the Committee continued its research and policy work on issues affecting legal service delivery for moderate income individuals. In 1992, it became a Standing Committee, solidifying its significant role in the activities of the American Bar Association. Pro Se Litigation In the 1990s, self-help remained at the top of the Committee’s agenda. First, the Committee began a self-help quality study, examining the basic question of whether individuals who are represented by attorneys are better or worse off than individuals who litigate pro se. The study examined the quality factors, both financial and non-financial, associated with both types of litigants. This study found that pro se litigants went through the process faster and indicated they would proceed pro se again if given the choice. The research also suggested that the primary determinant of individuals’ decision whether to seek representation or not was the complexity of the case, with financial considerations secondary. This research commissioned and overseen by the Committee helped create a response on the part of the courts around the country for the creation of self-help centers. 3 In 1994, the Committee produced a symposium on court-based pro se programs that brought together court administrators from around the country to discuss pro se programs. Topics of discussion at the conference included self-help materials, clinics and seminars, simplified court procedures, the use of courthouse facilitators, technology, and user-friendly courts. The Committee’s work on self-help programs in the 1980s and 1990s facilitated the expansion of this significant manner of providing access to legal services to moderate income individuals. Alternative Delivery Mechanisms The Committee also built upon its previous work in other alternative delivery mechanisms. The use of non-lawyers, as well as the idea of preventive law – “helping legally ‘healthy’ people stay that way” – was examined in the early part of the decade. In addition, the Committee tracked innovative techniques including legal hotlines, form preparation services, unbundling, and other services. In 1993, the Committee began a database on alternative delivery mechanisms, serving as a significant resource to the legal community. Technology In the 1990s, the Committee became increasingly interested in the role of technology in legal service delivery. As the Internet radically changed the way in which individuals obtain information and how attorneys practiced law, the Committee recognized the role of technology in facilitating access to legal services. The Committee began harnessing technology to disseminate information, for example, creating a legal access listserv in 1997. Ethics 2000 From 1997 to 2002, the Committee provided input into the ABA Ethics 2000 process, which reconsidered the ABA Model Rules of Professional Conduct. The Committee’s input assisted in the modification of rules allowing for further limited scope representation. For example, Model Rule 1.2(c) was modified to explicitly allow a lawyer to “limit the scope of representation if the limitation is reasonable under the circumstances and the client gives informed consent.” Another rule arising from the Ethics 2000 initiative, Model Rule 6.5, facilitates the participation of attorneys in nonprofit or court-sponsored limited legal services programs by limiting the obligation to do full conflict of interest checks. Brown Award In 1995, the Committee inaugurated the Louis M. Brown Award for Legal Access, which highlights innovative methods of legal service delivery to moderate income Americans. The Brown Award stimulates replication of innovative and effective delivery mechanisms and allows for the identification of trends in service delivery, and it remains a central activity of the Committee to date. The Brown Award is presented at the ABA Midyear Meeting each February. Policy Activities Throughout the decade, the Committee’s interests and projects continued to 4 grow. The Legal Services Gap Study begun in the late 1980s also continued into the early 1990s. In 1990, the Committee identified two primary areas of need: individuals who attempt to obtain legal services but are not able to do so, and those who would be better off if they had legal services but failed to recognize their need for such services; in other words, recognized vs. unrecognized legal needs. In 1995, the Committee embarked on a Barriers Project, to examine policies that create barriers to access to information or representation, whether those barriers were statutes, procedural rules, or ethical provisions. The Committee also continued to analyze policies and practices that facilitated or hindered innovative legal service delivery to those of moderate income throughout the 1990s. 2000 to the Present In the past decade, the Committee has continued much of the work begun in the 1980s and 1990s on innovative methods of legal service delivery to moderate income households, while adding emphasis on the role of technology and increasing its outreach activities. Models and Outreach The Committee has expanded its outreach activities over the last decade, providing resources to the legal community and the public at large about legal service delivery. In 2001, the Committee launched the online Pro Se/Unbundling Resource Center, which provides a searchable and wide-ranging compilation of articles, books, court cases, ethics opinions, self-help centers, and other online resources to assist the legal community, scholars, and the media in understanding pro se and unbundling. In 2002, the Committee published a booklet entitled “Innovations in the Delivery of Legal Services: Alternative and Emerging Models for the Practicing Lawyer.” An update of sorts of the 1983 Model Lawyer’s Guide to Legal Services, discussed above, the booklet described both established models, including lawyer referral and information services and legal service plans, as well as a wide ra nge of innovative models: collaborative lawyering, distance lawyering, holistic lawyering, micro-niche practices, networked practices, online case matching, outreach models, preventive law, subsidiary marketing, and unbundled legal services This booklet i s yet another example of the Committee’s commitment to discovering and highlighting innovative and effective modes of delivering legal services to moderate income individuals. The Blueprints Project, an online technical assistance program that describes programs that have been successful in increasing access to legal services for moderate income individuals, began in the early years of the decade and has continued to the present. The goal of the Blueprints Project is to identify and describe innovative a nd successful projects to facilitate their adaptation and replication on a broad scale. To date, the Blueprints have included Modest Means Panels of Lawyer Referral Services, Community Legal Resource Networks, and Access to Justice courses at law schools. In addition, the Louis M. Brown Award has continued to recognize innovative programs that have made “substantial or creative contributions to the delivery of legal services” to individuals of moderate income. Recent recipients have included the AARP Legal Hotlines Project, the Self-Represented Litigant Task Force of the State 5 of Maine, the California Commission on Access to Justice, and the Legal Resolutions Center of the Legal Aid Society of Orange County, California. Modified in 2007, the selection criteria include significant improvement of delivery of legal services and information; innovation in development, funding or implementation of legal service delivery; the ability to replicate; demonstrated operational success; and capacity to generate compensation for attorneys providing legal services. The Committee has also continuously engaged in outreach to panels and conferences around the country, including the National Equal Justice Conference and the ABA Annual Meeting. Collaborations with other organizations and with other sections of the ABA have been instrumental to the Committee’s understanding of legal service delivery issues and the dissemination of the Committee’s work. In addition, outreach to state and local bar associations and practitioners ensures that the work of the Committee reaches a broad audience. Technology Technology remained a focal point of the Committee’s activities in the present decade. In 2001, the Committee launched findlegalhelp.org, billed as the Consumer’s Guide to legal Help on the Internet. The following year, it embarked on an initiative to create best practices guidelines for web site providers collaboratively with the ABA Law Practice Management Section’s e-Lawyering Task Force. In the e-lawyering project, the Committee examined the manner in which legal service providers are using the Internet in the provision of legal services. Policy Activities In 2000, the Committee began formulating best practice standards for legal hotlines, which the ABA adopted the following year. The Committee began exploring standards for hotlines at a time when many in the legal community perceived legal hotlines as substandard practice, further demonstrating the innovative nature of the Committee’s work. The standards are “intended to recognize the value of telephone hotline services in the delivery of legal services” and aim “to advance and encourage best practices among those who establish systems to meet the needs of callers looking for a convenient and cost-effective source of legal advice and information.” The Committee continued its examination of ethical provisions impacting innovative service delivery through the ABA’s Ethics 2000 process and beyond. In 2005, the Committee published a white paper, “An Analysis of Rules that Enable Lawyers to Serve Pro Se Litigants,” which examined “the ways in which various states are formulating or amending rules of professional conduct, rules of procedure and other rules and laws to enable lawyers to provide a limited scope of representation to clients who would otherwise proceed on a pro se basis, and to regulate that representation.” The research indicates that most dispute resolution proceeds pro se, and while numerous courts have established self-help centers, and there are several resources available to pro se litigants, frequently these individuals could benefit from at least limited assistance from attorneys. The analysis provides several examples of modifications in rules of professional conduct and rules of procedure that facilitate the ability of attorneys to assist pro se litigants while 6 conforming to legal and ethical requirements. Future Challenges The Committee has made numerous significant contributions to the legal profession’s understanding of the legal needs of moderate income people and methods of providing innovative legal services to meet those needs. However, several challenges still exist. First, additional research into the unmet legal needs of moderate income individuals and the best ways to allocate resources to meet those needs must be done. Funding for research has been scarce in recent decades, but the Committee has continued to coordinate and compile the research that exists. However, there is a need for more research, particularly into ways of maximizing the limited available resources. Staff Counsel William Hornsby described the need to create an analytical model to maximize the allocation of existing resources, as the capacity to provide legal services to those of moderate income, including funding and pro bono involvement, is not likely to increase dramatically. In addition, policy limitations continue to hamper the ability of legal service providers to resourcefully meet the needs of moderate income individuals. For example, the Rules of Professional Conduct restrict attorneys from providing document preparation services similar to the services provided by non-attorneys. Policies are needed to allow attorneys to compete on a level playing field with non lawyers providing ancillary legal services. Particularly as technology becomes more important in the practice of law and people rely more heavily on the Internet for information, policies allowing attorneys to provide limited services are necessary to allow for innovative delivery of legal services to moderate income Americans. In the three decades since its founding, the ABA Standing Committee on the Delivery of Legal Services has been a powerful force for improving access to legal service for those of moderate income. Throughout its history, the Committee has explored innovative mechanisms of legal service delivery, and several of the methods the committee examined in the early 1980s remain important today. While the legal landscape has changed over the years, the Committee has remained on the cutting edge of legal service delivery. 7