Justice for All: The Advent of Limited Legal Representation
Our legal system has long recognized that the ability for individuals to seek redress in the courts is a vital public interest. For those who cannot afford an attorney, however, this right is hollow unless the ability to appear in court without legal counsel is guaranteed. Accordingly, the right of self representation for individuals has been recognized since the founding of our nation. Section 35 of the Judiciary Act of 1789. This policy has left the courthouse gates open to even our poorest citizens. While the American legal system grants access to unrepresented indigent people, once these parties have crossed the threshold of the courthouse, the system has historically left them to their own devices. Judges and court clerks are unable to provide assistance to an unrepresented party (or pro se litigant) because courts cannot take sides in a dispute. Even without assistance from courts, a pro se litigant is expected to know and follow the same procedures as licensed attorneys trained in the craft of jurisprudence, See McNeil v. U.S. It should come as no surprise, therefore, that notwithstanding equal access to the courts, unrepresented parties have had great difficulty receiving the justice they seek. Simply put, parties who cannot afford attorneys are allowed to participate in the legal system, but they are at a substantial disadvantage. The legal community has been slow to recognize that certain pro se parties are deprived of justice by virtue of their poverty.
Limitations of The Traditional Attorney-Client Relationship
Our nation's lower and middle classes have largely been disenfranchised from our legal system. The traditional attorney-client relationship has been cost prohibitive for most low and middle income people, impairing the ability for many people to receive justice in the American legal system. The traditional attorney-client relationship has largely been a product of the rules governing the legal profession. These rules of ethics have historically required attorneys to represent a client from start to finish during litigation and have made it difficult for legal counsel to terminate the representation of a client. These policies were based upon the assumption that the legal profession can better serve the public if attorneys are precluded from abandoning a client mid stream.
As a result of these rules, attorneys generally have required clients to pay a large percentage of the total projected attorney fees at the beginning of litigation. The cost of litigating a case from start to finish is extraordinarily expensive. It is not surprising that lower and middle class individuals have throughout our history found it difficult to pay the cost of attorney retainers. Consequently, the traditional attorney-client relationship has not been viable for the vast majority of Americans. Given the above-outlined difficulties of self-representation, the reality is that most citizens have been prevented from participating in the legal system in any meaningful way.
Policy Shift Allowing Attorneys to be More Accessible to Lower Income Persons
Lawyers and judges have not been blind to the negative effects that the foregoing ethical policy has had on the average American. In recognition of this, the there has been a shift in policy to increase the average American's access to the legal system. Changes were adopted to allow an attorney to move away from the traditional attorney-client model by permitting that attorney to limit her representation of a given client. For example, the following rule has been suggested and implemented in the last few decades: "A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent." See Rule 1.2 Model Rules of Professional Conduct. The stated purpose of the rule change was to “expand access to legal services by providing limited but nonetheless valuable legal services to low or moderate income persons who otherwise would be unable to obtain counsel." See Handbook of Limited Scope Legal Assistance, pg. 90. (hereinafter "ABA Report").
These new rules contemplate an à la carte attorney-client relationship, changing the way that at attorney can practice law. An attorney can now assist a client with only one limited aspect of a case, allowing her to accommodate a client who can only afford to for assistance with one small, yet vital, component of a case. For example, a client can pay an attorney to draft only the initial charging document of a lawsuit. The client can then file the lawsuit confident that it meets all of the legal and procedural requirements imposed by the court. When the client has need for a motion, she can hire an attorney to prepare the written argument, leaving the client to attend the motion hearing on her own. With these rule changes, an attorney can be assured that she will only be responsible for limited tasks that she has agreed to perform. The up front cost for this attorneys services can be greatly reduced because she needs only to charge the cost of the specific task, rather than requesting a large retainer to cover the cost of ongoing litigation. Moreover, an attorney is more likely to accept lower retainer amounts at the commencement of a legal action because she knows that she has the ability to withdraw from a case if a client falls too far behind on legal bills.
Internet Resources for Pro Se Litigants
The Internet has greatly expanded the ability of lower and middle income persons to access information related to the legal system. As a result, the Internet has made self-representation possible in a variety of simple legal matters. Legal do-it-your-selfers can go online to research statutes and court opinions. Legal forms are widely available online. The areas of probate and family law are particularly well suited for pro se litigants. Legal forms and documents for these two areas of the law are widely available for free through government or non-profit organizations. The State of Utah, for example, has made several different probate and divorce documents and pleadings available online. See Utah Online Court Assistance Program. Other state courts have similarly developed their own systems for assisting pro se litigants or have actively supported attorneys who provide limited legal representation. See ABA Report, pgs. 114-131, supra. Legal information and documents, including divorce documents, are also available for a fee by many private attorneys.
The number of pro se litigants has increased dramatically in the last few decades. See generally Challenge To Justice: A Report on the Self-Represented Litigants in New Hampshire Courts (hereinafter "New Hampshire Report"). The State of New Hampshire, for example, has observed as follows: "one party is pro se in 85% of all civil cases in the districtcourt and 48% of all civil cases in the superior court. In probate court, both sides areunrepresented by lawyers in 38% of the cases. In superior court domestic relationscases, almost 70% of cases have one pro se party, while in district court domestic violence cases 97% of the cases have one pro se party." See New Hampshire Report, pg. 2, supra.
The State of California has reported that in Domestic cases "67% of Petitioners in California were pro se at the time of filing. 80% were pro se at the time of resolution." Statewide Action Plan for Serving Self-Represented Litigants, pg. 2.
"Nationally, both parties are unrepresented in two or three out of every five cases." See ABA Report, pg. 8, supra.