shlep: the Self-Help Law ExPress

   A week ago, we reported that a New Jersey federal court had barred the undisclosed use of “ghostwritten” pleadings [that is, a pleading filed by a pro se litigant, but written in whole or part by a lawyer].  Delso v. Trustees for Plan of Merck & Co., Inc. (D.N.J. March 5, 2007) 2007 U.S. Dist. LEXIS 16643.  On March 21, 2007, the New Jersey Law Journal/Law.com had an article focusing on the Delso case and U.S. Magistrate Judge Tonianne Bongiovanni, who wrote the decision.  “‘Ghostwriting’ Lawyer Effaced From ERISA Case on Ethics Grounds,” by Charles Toutant.  At Legal Profession Blog, Alan Childress continued his coverage of Delso, getting to the nub of the NJLJ article:

“Notice that the N.J. decision seems to rest on the lack of authorization in N.J. rules for such discrete-task or ‘limited’ representations, and thus may extend beyond undisclosed ghostwriting.  The judge wrote, ‘This is not to say that this court does not believe that unbundled legal services, in some form, may be beneficial to the equal administration of justice. But, when viewed under the current RPC [in New Jersey], ghostwriting is antithetical to the public interest’ .” 

Alan also pointed to Prof. Andrew Perlman’s discussion of Delso at Legal Ethics Forum. [In our prior post, we disagreed with the judge’s worry about unfairly helping the pro se litigant who has undisclosed assistance from a lawyer in drafting a pleading.]

• A few days ago, we collected a number of major resources on the topic of the judicial treatment of the pro se litigant.  See Californa judges get benchbook for handling pro se litigants (March 23, 2007)  

 On an unrelated but haunting topic, a couple days ago, I noticed an excellent example of the problems with pro se nomenclature that I fretted over last November.   After coining a rule of thumb in the body of the post:  “If it’s Latin, it’s probably not Plain English,” I added a Comment explaining:

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    A new report from the State Bar of Wisconsin’s Access to Justice Committee showcases the findings of the State’s ”first comprehensive legal needs study of low-income residents,” and makes recommendations for closing the justice gap between the State’s rich and poor. “Bridging the Justice Gap: Wisconsin’s Unmet Legal Needs: Final Report,” Access to Justice Study Committee, State Bar of Wisconsin (March 9, 2007, 26 pp, pdf.; webpage)  The Report’s recommendations cover a broad array of goals and assign tasks for various segments of the legal profession and the government.  (via SelfHelpSupport.org)

Here are the broad recommendations: 

1. Funding from the State of Wisconsin is necessary to help close the Justice Gap and must be adequate to meet the needs of at least those who are currently turned away due to lack of funding.
2. A permanent Wisconsin Access to Justice Commission should be established.
3. Self-help centers for unrepresented litigants should be established in every courthouse in Wisconsin.
4. Expanded use of nonlawyer advocates before Wisconsin courts and agencies must be explored. [”The Wisconsin Supreme Court should modify ethics rules and procedural rules to permit paralegals to advocate in court and before agencies on a limited basis.]”
5. Client contributions to the cost of services may be an appropriate means of expanding access to justice for residents who can afford to do so.
6. Increasing Wisconsin’s already high court filing fees is not an appropriate means of expanding access to justice.
7. The current $50 assessment on attorneys to help pay for civil legal services to the poor should be retained and the exemption for judges should be removed.
8. Expanded efforts to increase the already substantial pro bono contributions of Wisconsin lawyers should be explored.

  In addition, the Report sets forth many tasks for the State Bar, the legislature and the courts.  Lawyers, their firms, and law schools have assignments, too, in the campaign to close the justice gap.  Suggestions for increasing the provision of unbundled legal services and volunteer advice programs are outlined. Below the fold, we provide excerpts that flesh out some of the most important recommendations, including the major role suggested for the State’s two law schools.

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    It is a mantra used  by staff in courthouses and libraries throughout the English-speaking world: “We can give you legal information but not legal advice.”  E.g., see the Delaware State Court We Can/We Cannot page; John Greacen’s Judicature article (2000); and Iowa’s Guidelines & Instructions for Clerks Who Assist Pro Se Litigants in Iowa’s Courts (2000, 42-pp pdf).  As you might suspect, making the distinction can be quite difficult — frustrating to both court personnel and pro se litigants.

 The Arizona Supreme Court decided last year to do something about the problem. Noting that “With the increase of self-represented litigants in Arizona, the issue of how to provide assistance and information to court customers without giving legal advice is becoming more critical and urgent,” it established a Task Force on Legal Advice-Legal Information.  Earlier this month, the Task Force issued:

• its Final Report (March 2007, 6 pp pdf), which notes in fn. 1 that “Although Arizona Rules of Court define ‘practice of law’ and ‘unauthorized practice of law,’ the Rules do not define ‘legal advice.’”
• a GUIDE TO COURT CUSTOMER ASSISTANCE: Legal Advice – Legal Information Guidelines for Arizona Court Personnel (March 2007, 67-pp pdf; with a 40-page Glossary of Terms)
• a Question and Response Handbook (March 2007, 59-pp pdf).
• Signage [Ed. Note: This is a one-page Welcome / We Can / We Cannot sign, made difficult to read by having the Seal of the Supreme Court appear behind the message.  As I do whenever I see such lists, I wonder if the Task Force argued over “We May” and We Can”.]

The Task Force documents will surely be helpful for court personnel who worry about crossing the info/advise line (and about being sued for UPL).  I am, nonetheless, a bit concerned that the tone is too stingy with useful information.  For example: The Handbook says: “When you are uncertain if you are being asked to give legal advice, please suggest that the one asking the question consult an attorney.”  Telling a pro se litigant to consult an attorney to answer one borderline question will seldom be helpful.  I’d say “bend over backward — or stick out your neck — to help them.”

Also worrisome is the following pair of Questions and Answers in the Handbook:

1. Q. I can’t afford an attorney. Can you tell me what to do?
   A. Court personnel are not allowed to give legal advice and cannot guess what might be in a court customer’s best interests. Court personnel must remain neutral; there may be a list of local resources of attorneys who will work for a reduced fee or no fee.
2. Q. Should I get a lawyer?
   A. Parties are not required to have a lawyer to file papers or participate in a court case. Court personnel cannot advise a party whether the party should hire a lawyer, nor may they recommend a specific lawyer. The State Bar of Arizona provides a lawyer referral number at 602-252-4804 or 866-482-9227 and the local County Bar Association may have a referral number. Some courts provide a list of local attorneys and there may be a list of local resources of attorneys who will work for a reduced fee or no fee.

Both answers seem strangely incomplete in a Handbook specifically created to help the unrepresented litigant in Arizona.  As we have said on our Getting Self-Help Help page, Arizona has been a trailblazer in creating online and in-court Self Help Centers, and the State has a network of Self-Help Centers, located in courthouses in at least a dozen counties.  A pro se litigant who complains he or she cannot afford a lawyer or who asks whether a lawyer is needed, ought to — in addition to being told about attorney options — be pointed to the Self-Help Center down the hall (or across the room), which surely has relevant information and assistance.  To respond by only suggesting they seek out a list of lawyers or the Bar Association’s referral program is inexplicable (unless, of course, the Arizona Bar controlled the Task Force).  

• If you are a practitioner/professional interested in this topic, please note that SelfHelpSupport.org’s April Webinar is “on Legal Advice vs. Legal Information.”  Two experts, John Greacen and Judy Meadows will present it on April 30, 2007 from 3-4:30 pm (EST) [I assume they mean EDST]. You need to be an SHS or SRLN member (it’s free and has many other benefits). You can sign up now by emailing anorris [AT] ncsc.dni.us. 

Below the fold, I have reproduced the Task Force definitions of “legal advice” and “legal information.”  

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   We’ve frequently stressed the important (and often difficult) role that judges have in the process of assuring fair access to justice for the self-represented litigant (e.g., here and there).  Attempting to help the pro se party [called pro pers in some western states] understand law and procedure and effectively present their case, while maintaining neutrality toward all parties to a suit, takes agility and skill, and an appropriate temperament. (see our post earlier this week on Ghostwriting in NJ)  Judges in the California court system were given a great tool for understanding and fulfilling this role with the publication of a 245-page guide called “Handling Cases Involving Self-Represented Litigants: A Benchguide for Judicial Officers.” (CA Administrative Office of the Courts, Center for Families, Children and the Courts, January 2007) (via SelfHelpSupport.org, where members can access the document)

This benchguide covers the following topics, in addition to providing sample scripts to use in many situations:

1. Self-represented litigants: Who are they and what do they face when they come to court? [note: 450,000 people use self-help resources annually in California]
2. Expanding access to the court without compromising neutrality
3. California law applicable to a judge’s ethical duties in dealing with SRLs
4. Solutions for evidentiary Challenges
5. Caseflow management
6. Courtroom and hearing management   
7. Settling cases
8. Special due process considerations
9. Communication tools
10. Avoiding unintended bias
11. Addressing litigant mental health issues in the courtroom
12. Judicial leadership in access to justice

For a document with similar goals, check out How Can Judges Communicate Effectively With Self-Represented Litigants? (compiled by the American Judicature Society, 64 pp. pdf).  Further helpful resources that we have discussed here at shlep include:

• Jona Goldschmidt’s “Judicial Assistance to Self-Represented Parties: Lessons from the Canadian Experience“ (2006, 44-pp, pdf.).  
• Statement of Principles on Self Represented Litigants and Accused Persons (Canadian Judicial Council, 2006, 12 pp. pdf),
• the Supreme Court of Queensland’s Equal Treatment Benchbook,
• The Judicial Guidelines for Civil Hearings Involving Self-Represented Litigants, approved by the Justices of the Massachusetts Supreme Judicial Court in April, 2006.

   March 18 - 24, 2007, is Mediation Week in California. The judiciary is celebrating with informational events across the state.  (See YubaNet.com) The California Courts ADR events page says: “The third week in March is traditionally recognized as Mediation Week. During this week, many California courts, local governments, community dispute resolution programs, and private mediation organizations hold events to inform the public about the availability and benefits of mediation programs and to acknowledge the mediators and others who make those programs successful.”  Click here for the Courts’ Alternative Dispute Resolution Homepage, to learn more about mediation and the programs available in California.

After seeing and experiencing a lot of resistance to mediation from the bar over the past two decades, I am pleased to see that the Board of Governors of The State Bar of California issued a proclamation Recognizing Mediation Week.   Here are a few excerpts from the Proclamation:

• Whereas mediation is a dispute resolution process in which a neutral third person facilitates communication between disputants to help them reach a mutually acceptable agreement;
•  Whereas mediation offers many potential benefits to litigants, the courts, and the public,including increasing the interested parties’ satisfaction with the litigation process and the courts and voluntary compliance with the terms of resolution, while reducing pretrial motions and trials, the time from the filing of an action to disposition, future disputes between the parties, recidivism, litigants’ costs, and court workloads;
• Now, therefore, be it resolved that the Board of Governors of the State Bar of California recognizes the week of March 18 through 24, 2007, as Mediation Week, commends the efforts of all those who make mediation and mediation programs available to the citizens of California, and encourages the local bar associations to recognize those individuals and publicize local mediation programs during Mediation Week.

       This morning’s TVC Alert warns both investigating firms and consumers of the dangers in doing superficial, low-cost criminal records checks. (”Caveat Emptor: Cheap Background Checks,” March 20, 2007)  The TVC Alert blurb points to a recent posting at legal investigator Mike Coffey’s Imperative Information weblog, “The Danger of Selling Cheap Backkground Checks” (March 14, 2007).

  Coffey cites a lawsuit discussed in a recent The Fort Worth Star Telegram article, concerning the alleged rapist of a 77-year old Alzheimers’ patient, who had been hired after a private criminal records search failed to uncover that he is a registered sex offender (plaintiff’s original petition).  Coffey asks: “Can the screening firm be held legally liable for giving the customer what they asked for, however inadequate it might be?”  And he answers: ”Prior cases suggest that the outcome may depend on the efforts undertaken by the screening firm to educate the client on the risks associated with undue reliance on the database report.”  Coffey offers additonal thoughts on the topic.

• For further information see: “Pinching Pennies in a Background Check Might Cost You,” by Lynn Peterson, The Virtual Chase, 24 August 2005; also, our prior post, “researching public records.”

       Over the weekend, Law Librarian Blog reported that a sophisticated, web-based bankruptcy software program was determined by the Ninth Circuit appellate court to be practicing law without a license — because it made too many decisions to be considered a mere clerical tool.  Frankfort Digital Services, LTD v. Kistler (Ninth Circuit, No. 04-17190, Feb. 27, 2007; 15 pp. pdf)  Wired Magazine has a good description of the case in “AI Cited for Unlicensed Practice of Law” (March 5, 2007) “At issue were two websites maintained by entrepreneur Henry Ihejirika — Ziinet.com and 700law.com — which offered automated bankruptcy assistance.”

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   Earlier today, Rick Georges posted about a newspaper article that focused on the recent opening of several We the People document preparation stores in the Tampa Bay area.  See “DIY stores walk fine line between law help, outlaw: They can offer document prep but not advice,” St. Petersburg Times, by Carrie Weiner, March 19, 2007.  For my money, you can get a more well-rounded picture of We the People USA by reading two additional articles:  ”Moving In on New York Lawyers” (New York Times, Feb. 15, 2004; discussed at f/k/a); and “First Kill the Lawyers… … on the price for basic legal paperwork” (Money/CNN.com, April, 1, 2004).

• For example: The St. Pete Times tells us that “The company has been the target of multiple lawsuits by lawyers, state bar associations and disgruntled customers who said its documents didn’t pass legal muster.”  The NYT article also states that We the People has been the “target of 29 lawsuits by lawyers, state bar associations and other critics.” However, NYT adds the relevant fact not found in the SPT article: “Twenty-six of the [29] lawsuits have been dismissed or have been won by We the People.” 

My main focus in this post, however, is on the section of the St. Pete Times piece concerning the Florida Bar:

“Those looking to save money can already find a variety of resources, said Bruce Lamb, chairman of the Bar’s committee on the unlicensed practice of law.

“Organizations such as Legal Aid can provide low-cost advice from an attorney, Lamb said. Those who want to represent themselves can get most of the documents offered by We the People at courthouses or through the Florida Bar for free, he said.

” ‘The value of these places, when you look at it, is pretty low,’ Lamb said.”

It’s no secret that I am at times suspicious of the motives of the organized bar — especially when it comes to new sources of competition from outside (or even inside) the profession, and to the growth of the self-help law movement.  See, e.g., our post “a guide or a guild: where does your bar group stand?” (Sept. 8, 2006).  So, I was not very impressed by the Florida Bar’s UPL chairman’s suggestion that those who need “to save money” can get help from Legal Aid.  As you know, only a small portion of the total population who cannot afford lawyers (see prior post) is poor enough to be eligible for Legal Aid; and, of course, only a relatively small percentage of the eligible actually get a lawyer from Legal Aid. 

Even bar groups deserve the benefit of the doubt, however.  So, I thought I’d follow up on Mr. Lamb’s apparent endorsement of pro se litigants using the legal documents that are available at “courthouses or through the Florida Bar for free.”   I was especially optimistic, because (as we noted in “getting self-help help“), the Florida State Courts have a nice little Self-Help Program, that focuses on Family Court matters (e.g., divorce, custody, child support, paternity) — with many forms created with the pro se litigant in mind, and  a network of local self-help centers that provide a variety of onsite services. 

  Just as a Florida resident who read the SPT article and wants to save money might do, I went to the Florida Bar website, to find out how to obtain and intelligently use the available forms to represent myself.  Here’s what I found [warning: it isn’t pretty]:

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There is an interesting article in the St. Petersburg Times this morning about non-lawyer stores that provide help with filling in standard legal forms, at a price much lower than an attorney’s charge.  “DIY stores walk fine line between law help, outlaw: They can offer document prep but not advice,” March 19, 2007.  I was quoted because I’m a contributor to shlep.  I believe that competent consumers can benefit from unbundling some legal services; that is, hire an attorney for part of a task, such as legal advice and drafting of a Small Claims Statement of Claim, but attendance at hearings by yourself.

The document preparation services are more dangerous, because they carry the risk of non-lawyers giving advice, and because it is often not possible for a layman to determine when a standard form won’t do. The Internet is making it easier for consumers and document preparation services to perform some legal tasks. Lawyers need to use technology to show consumers when a lawyer’s advice is beneficial, and we need to use technology to make our advice cost effective, if we are going to compete. 

      A good self-helper, like a good librarian, needs perseverance and follow-through.  So, I’d be obliged to follow up our prior post about the Law Librarian Hotties Contest at Above the Law, even if it weren’t a fun way to remind the world that old stereotypes about librarians need to be amended (or even repealed).  After a month of reader polling, David Lat announced the winners on March 15, 2007:

Who is America’s Hottest Female Law Librarian?  

• Joy Hanson, Research Librarian, United States Supreme Court, Washington, DC. Formerly Reference Librarian, Duke Law School

 Who is America’s Hottest Male Law Librarian?

• Larry Reeves, Adjunct Associate Professor of Law & Coordinator, First-Year Legal Research Program, Fordham Law School.

If you’re curious about the field of Law Librarian Hottie contestants, click to see and read about the Female Nominees and Male Nominees.  I hope it goes without saying that your shlep Editor in no way condones the puerile, mean-spirited comments found at the Above the Law website.

• If you want some self-help substance regarding law librarians, see our post “trust your online virtual reference librarian,” to learn about LiveHelp and other online virtual/chat reference services provided by librarians.

  We don’t know if Above the Law will ever hold a Hottie Contest for Anonymous Webloggers.  We do know, when it comes to follow-through, that nobody beats the Editor of Blawg Review.  The anonymous BR Editor [”Ed”] scours the “blawgiverse” every week in search of the best weblog offerings by lawyers, law professors and law students.  He is assisted each week by a few hearty associate editors and a Guest Host, who posts the results on his or her host weblog each Monday. 

We want to congratulate “Ed” for his perseverance, as demonstrated by the unveiling today of Blawg Review #100 (March 18, 2007- yes, a very unlawyerly day before his deadline).  Blawg Review 100 focuses on the 90 or so weblogs that have hosted its law-weblog carnival, picking a recent posting of note from each site.  Because f/k/a hosted Blawg Review #52, Ed was kind enough to point his readers to my recent posting there, “no professional courtesy? shark bites lawyer,” which may interest lawyer-phobic (and shark fearing) self-helpers.   The early posting gives you a chance to peruse it at your leisure on the late-winter Sunday. [Disclaimer: Yes, we do have a soft spot in our hearts for Blawg Review, as it named shlep the Best Law Blog in the Public Interest, in the Blawg Review Awards 2006.]

   Yes, this is totally off topic.  In case you’re also snowed-in this morning, commiserate with me over at f/k/a in wearing’ o’ the white.  It’s weblog recycling and self-help reminiscence of St. Patrick’s Days past.

  According to a summary in Freivogel on Conflicts (March 13, 2007), the Federal District Court for New Jersey has issued a decision stating that ”undisclosed ghostwriting violates several ethics rules and the spirit of FRCP Rule 11 and should not be permitted in the District of New Jersey.”  The case is Delso v. Trustees for Plan of Merck & Co., Inc. (D.N.J. March 5, 2007) 2007 U.S. Dist. LEXIS 16643. (via Carolyn Elefant at LegalBlogWatch and Alan Childress at  Legal Profession Blog)  A ghostwritten pleading has been drafted in whole or part by a lawyer for a party who is appearing pro se in a court proceeding; the document is filed by the party without attributing it to the attorney.   Writing the pleading is an “unbundled” service provided by the lawyer to the unrepresented litigant.

According to Freivogel:

 ”The court also ordered that the lawyer either make a formal appearance for the plaintiff or stop communicating with her about the case. This opinion contains a comprehensive review of ghostwriting around the country. In a nutshell, the problem with ghostwriting is that courts give pro se litigants more slack. That puts the other side at a disadvantage when the pro se litigants’ pleadings are ghostwritten by lawyers.”

If you have access to the court’s opinion in Delso, please share the relevant parts with us.

As we reported on January 2, 2007, Rule 3.37 of the California Rules of Court permits “Undisclosed representation,” including ghostwriting and coaching.  Rule 3.37 says: “(a) Nondisclosure. In a civil proceeding, an attorney who contracts with a client to draft or assist in drafting legal documents, but not to make an appearance in the case, is not required to disclose within the text of the documents that he or she was involved in preparing the documents.” (emphasis added)

You can find further discussion of ghostwriting, in Arizona Bar Ethics Opinion 05-06 (July 2005).  The Arizona Bar concluded that “The attorney providing limited scope representation is not required to disclose to the court or other tribunal that the attorney is providing assistance to a client proceeding in propria persona [pro se].”  The ethics opinion noted that other jurisdictions have disagreed, and collects citations to many rulings in other states (via Mike Frisch at Law Profession Blog)

My perspective (as stated today in a Comment at LegalBlogWatch):  In general, if a judge gives a pro se litigant “more slack,” it should only be where and when he or she needs it in order to have the case fairly presented and heard — e.g., understanding procedural rules, presenting written arguments, asking questions at trial.  The pro se party shouldn’t need extra assistance from the court relating to a pleading (regarding, e.g., cogency of arguments, form of citations, depth of research, etc.) that has in fact been written by a lawyer.  Thus, there should be no judicial helping-hand and therefore no disadvantage to the opposing party with regard to a ghostwritten pleading.  Indeed, the judge should be happy to have a ghostwritten pleading before the court, because there will be less need to help the particular unrepresented litigant. [our prior post discusses and links to sources on the proper role of judges dealing with unrepresented litigants]