Pro Se, No Way: Increasing Market Share and Access to Justice Through Limited Scope Representation

Amy Dunn JohnsonVincent Morris

Pop Quiz: Question #1

Of the following countries, which one ranks the lowest on the World Justice Project Civil Justice Index for access to civil justice? Iran Ukraine Sierra Leone United States

The U.S. ranks 65th out of 100 countries in access to and affordability of civil legal services and is the lowest among industrialized nations.

Source: WJP Rule of Law Index 2014

Pop Quiz: Question #2

A 2011 Arkansas study on self-represented unrepresented litigants in family law cases. The study indicated that what percentage of these cases had at least one unrepresented party? 54% 68% 71% 99%

Cases with Unrepresented LitigantsCase Type Pro Se

PetitionerPro Se

Respondent (or default)

Cases with at least one

SRL (or default)

Family 39% 91% 99%

Financial and housing

1% 92% 93%

Probate 52% 99% 99%

Source: Chanley Painter, Exploring the Problem of Self-Represented Litigants in Arkansas Civil Courts (2011)

Pop Quiz: Question #3

For 2013 graduates of UA and the UALR Bowen School of Law, what percentage are currently employed in jobs that require a JD? 62% 74% 88% 91%

As of March 2014, 62% of Arkansas law school graduates were employed in jobs requiring bar passage.

Source: American Bar Association Section of LegalEducation and Admissions to the Bar

Poverty in Arkansas

According to the 2010 Census:

•The total population of Arkansas is 2,915,918

•724,000 people, or 25% of the state’s population qualify for legal aid

Three Avenues to Court

•Legal aid

•Pro bono attorneys

•Self representation

Legal Aid in Arkansas

•There are two legal aid programs in Arkansas:▫Legal Aid of Arkansas (LAA)▫Center for Arkansas Legal Services (CALS)

LAA

CALS

•Each year, these two programs receive about 30,000 calls for help

•Approximately half of all qualified families are turned away due to lack of resources

Pro Bono Service in Arkansas

•8,500 licensed attorneys in Arkansas

•In 2012, 67% of licensed attorneys reported having performed pro bono service

•In 2012, 1103 private attorneys volunteered to take pro bono cases through legal aid

It’s Not Just Poor People

“Less than 4 out of 10 moderate income people turn to the legal system for their legal problems. More than a quarter of them do nothing.”

Source: American Bar Association

The New Reality

•We will never be able to provide lawyer for every poor person, let alone everyone of modest means

•Proliferation of online affordable fixed-fee services such as Rocket Lawyer and LegalZoom. “DIY” effect.

•Increasing availability of technology that can automate routine aspects of legal practice

How Can the Legal Marketplace Adapt?

Ark. R. Prof. Conduct 1.2(c): “A lawyer may limit the scope of the representation if the representation is reasonable under the circumstances and the client gives informed consent.”

Unbundling: What it Does

•Makes legal services affordable to persons of modest means

•Affords attorneys the opportunity to acquire previously unprofitable work that is time-limited and higher in volume

Unbundling: What it Is

Lawyer provides representation only with regard to a clearly-defined portion of the client’s needs. Examples:•Document drafting or review•“Ghostwriting” pleadings for a specific

case•Limited appearances•Legal coaching/strategy•Conducting legal research

Unbundling: What it is NOT

•A substitute for full representation when the matter is too complex or the client to unsophisticated

•Representation until the retainer is exhausted

•Second-class service

•Pro bono or “low” bono work

Unbundling: Common Concerns•Malpractice risk•Judicial willingness to honor limited

appearances•Communication between client and

opposing counsel when representation ends

•Ghostwriting for a pro se litigant who is appearing on behalf of an estate or entity

Unbundling: Best Practices

•Establish good intake process •Conduct conflict checks•Provide client education materials•Keep records of interactions with client•Explain unbundled services to full-service

clients•Make sure unbundled legal services are

covered by malpractice insurance•Confirm completion of matter in writing•Provide good customer service

Unbundling in Arkansas

•Arkansas Access to Justice Commission Task Force on Self-Represented Litigants

•ABA-funded Pilot Project on Limited Scope Representation for Uncontested Divorces with Children

•“Pro Bono in a Box” Clinics

Resources

•ABA Resolution on Unbundling: www.arkansasjustice.org/node/192

•Stephanie L. Kimbro, Limited Scope Legal Services (2012).

•Arkansas Legal Services Partnership Website: www.arlegalservices.org

•Arkansas Access to Justice Commission Website: www.arkansasjustice.org/limitedscope

Contact Us

Arkansas Access to Justice Commission

1300 W. 6th Street, Room 110Little Rock, AR 72201

(501) 492-7175 | fax (501) 682-9421www.arkansasjustice.org