Expanding Access to the Legal Services for the Poor: On the Path of the Model Rules of Professional Conduct Improvement...

1. Draft of Slides for the Ethics Exercise Presentation in Practice & Professionalism
by Sofiia Kulitska
October 8, 2018
Expanding Access to the Legal Services
for the Poor
On the Path of the Model Rules of Professional Conduct
Improvement...

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PROLOGUE / PREFACE
«… There can be no equal justice
where the kind of trial a man gets
depends on the amount of money
he has.»
SCOTUS Associate Justice Hugo L.
Black in Griffin v. Illinois, 351 U.S. 12
(1956)

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62 YEARS LATER...
«There can be no social justice
where the kind of legal
representation, services and/or
products person(s) gets depends
on the amount of money (s)he
has.»
Student(s) of Group #2, Practice and
Professionalism (Fall 2018)

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EMPIRICAL BACKGROUND

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«The law should not be regulated to protect the
10% of consumers who can afford legal services while
ignoring the 90% who lack the ability to pay. This is
too big a gap to fill through a renewed commitment to
pro bono. This is a structural problem rooted in
lagging legal productivity that requires changes in
how the market is regulated.»
(citing William D. Henderson)
Source: The American Lawyer, July 23, 2018

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THE CORE / MAIN BODY
Lawyering Paradigm Shift
Traditionalism ® New Legal Realism
Constraint ® Liberalization
Ambiguity / Vagueness ® Clarity
¯
Human / Client - Centric
Approach Painting by Vladimir Kush

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Model Rule 1.1 Competence
Proposal: New Formulation of the Rule:
“(a) A lawyer as well as qualifying legal services provider shall perform
all legal services with competence.
(b) For purposes of this rule, “competence” in any legal service shall
mean to apply the (i) learning and skill, and (ii) mental, emotional, and
physical ability reasonably necessary for the performance of such service.
(c) If a lawyer does not have sufficient learning and skill when the legal
services are undertaken, the lawyer nonetheless may provide competent
representation by (i) associating with or, where appropriate, professionally
consulting another lawyer or qualifying legal services provider whom the
lawyer reasonably believes to be competent, (ii) acquiring sufficient
learning and skill before performance is required, or (iii) referring the
matter to another lawyer or qualifying legal services provider whom the
lawyer reasonably believes to be competent.”

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Model Rule 1.2 (c)
Proposals: Amend the Rule, and add a new Comment to the Rule 1.2, stating
that it is not an ethical violation for lawyers to provide free undisclosed document
assistance to indigent litigants
Rule: “(c) A lawyer may limit the scope of the representation if the limitation is
reasonable under the circumstances, is not otherwise prohibited by law, and the
client gives informed consent.”
Comment: «It is not an ethical violation for lawyer to provide free undisclosed
document assistance to indigent litigants so that they may have the opportunity
to have their legal matters fairly heard, unless a jurisdiction specifically prohibits
such practice or the lawyer provides such assistance in a manner that violates
Rules that otherwise would apply to the lawyer’s conduct.»
NOTA BENE (!): The Model Code of Judicial Conduct uses similar language in the Comment to Rule
2.2 (Impartiality and Fairness) to clarify that judges do not violate ethical rules when assisting self-
represented litigants: “It is not a violation of this Rule for a judge to make reasonable accommodations
to ensure pro se litigants the opportunity to have their matters fairly heard.”

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Model Rule 1.3 Diligence
Proposal: New Formulation of the Rule:
“A lawyer as well as qualifying legal services provider
shall act with reasonable diligence in providing all legal
services.
For purposes of this rule, “reasonable diligence” shall
mean that a lawyer, qualifying legal services provider acts
with commitment and dedication to the interests of the
client and does not neglect or disregard, or unduly delay a
legal matter entrusted to the lawyer, legal services provider.”

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Model Rules 1.6 - 1.8
Proposals:
(1) Include Qualifying Legal Services Providers into the
Scope of Rule 1.6 “Confidentiality of Information”
(2) with respect to the Rule 1.8(e):
Remove or loosen up an absolute ban on extending
living expenses (that includes not only loans but also gifts,
housing, and other forms of non-litigation based financial
assistance) under the Comment #10

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Options for possible changes in the Rule 1.8(e)
The first approach (adopted by Louisiana): a broad-based rule
applicable to all licensed lawyers that permits financial assistance when
assisting clients who experience dire circumstances that threaten access to
the court and where modest assistance is needed to meet emergency needs,
such as shelter, utilities, or health. Safeguards can be imposed in such a rule
to protect against overreaching and to minimize conflict of interest concerns.
A second approach (adopted by New Jersey): craft a special rule for
recognized providers of legal services to the poor that relaxes restrictions on
financial assistance when such assistance is provided in the course of
delivering free legal services to indigent clients.
New Jersey’s approach is similar to that adopted by Model Rule 6.5, which
relaxes conflict rules for lawyers serving the poor in special projects
sponsored by the courts or legal aid providers.
Source: Rulli, Louis S., Roadblocks to Access to Justice: Reforming Ethical Rules to Meet the Special Needs of Low-
Income Clients, (2014), available at: http://scholarship.law.upenn.edu/faculty_scholarship/1531

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Model Rule 6.1
Issue for Discussion:
Some states adopt new court rules in attempt to secure greater pro bono
assistance from retired lawyers, emeritus lawyers, in-house counsels, law students,
and newly minted lawyers.
Example:
California Rules Of Court (Revised September 1, 2018)
Rule 9.42. Certified law students
(a) Definitions
(1) A "certified law student" is a law student who has a currently effective certificate of registration
as a certified law student from the State Bar.
(2) A "supervising attorney" is a member of the State Bar who agrees to supervise a certified law
student under rules established by the State Bar and whose name appears on the application for
certification.
(d) Permitted activities ...
Why the Model Rules are static in this context?

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Model Rule 6.5
While Rule 6.5 is a positive step forward in promoting A2J, the rule is
narrowly drawn to address only a lawyer’s duty to identify and manage
potential conflicts of interest in these settings. It does not offer guidance to
lawyers on how to responsibly manage a range of other ethical duties in
short-term, non-traditional settings, including duties of competence,
diligence, and communication.
In Rule 6.5 projects, lawyers are uncertain whether they should, or are required,
to execute written limited scope representation agreements.
Are lawyers able to fulfill their duty of competence when called upon to advise
indigent clients on how to proceed in their cases based upon just a few minutes of
consultation, often without an opportunity to review relevant documents?
May a lawyer ethically engage in short-term assistance where there are
difficult language barriers that impair communication?
Etc.
For these and other issues, see: Rulli, Louis S., Roadblocks to Access to Justice: Reforming Ethical Rules to Meet the
Special Needs of Low-Income Clients, (2014), available at: http://scholarship.law.upenn.edu/faculty_scholarship/1531

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EPILOGUE / POSTFACE
“Lawyers, before any other group,
must continue to point out how the
system is really working, how it
actually affects real people. They must
constantly demonstrate to courts and
legislatures alike the tragic results of legal
nonintervention. They must highlight how
legal doctrines no longer bear any relation
to reality […] In sum, lawyers must bring
real morality into the legal
consciousness…”
William J. Brennan Jr., Are Citizens Justified in
Being Suspicious of the Law and the Legal System?,
43 U. Miami L. Rev. 981 (1989), p. 986.