shlep: the Self-Help Law ExPress

An interesting issue arising in some custody battles in recent years is something called Parental Alienation Syndrome.  As described in this article, PAS is a not-yet-officially recognized “ailment,” inflicted upon children by custodial parents during and/or after divorce.  Basically, PAS occurs when the parent who has greater access to the child uses that access to negatively influence that child’s feelings about the other parent.

Although doctors and psychiatrists are in dispute about the validity of PAS, it is arising in custody cases more and more often.  Still, it can be difficult to prove PAS because the lack of official recognition makes it difficult or impossible to secure expert testimony on the subject. 

This is one of those areas where the law seems, to me, hopelessly out of touch with people’s day to day lives.   In order to get evidence of PAS admitted into court, it must be a scientific syndrome, described and analyzed in technical language and supported by empirical studies.  Yet ordinary people know that, whether or not it rises to the level of a syndrome, the concept of parental alienation exists.

Unfortunately for children of divorce, many parents are unable to control their anger at one another when their marriage fails.  Even more unfortunately, one parent may take out this anger by manipulating the child into blaming or disliking the other parent.  Does the court really need to see studies showing that this type of behavior is harmful to the parent-child relationship?   

At any rate, I thought this was a useful issue for shlep discussion because I suspect that pro se patrons who are dealing with child custody issues often worry about the influence the other parent is having on the child’s feelings.  It might be helpful to these people to learn more about PAS and its effects, even if they aren’t ultimately able to get everything into the courtroom.

Legal research guides, sometimes called “pathfinders,” are exactly what they sound like - guides to legal research. A number of different organizations publish these guides, but a consistent source for particularly thorough and helpful guides is academic law libraries. As a new academic law librarian myself, I consistently use the guides published on the web-sites of other law schools when researching an unfamiliar topic. Almost every academic law library publishes them to some extent or another, and they can be a great resource for pro se patrons in learning how to find things like cases, laws, regulations - or even just in developing a research strategy when you don’t know where to begin.

If you need help with a particular type of problem, try googling for a research guide. For example, say you are going through a divorce - try googling “family law” and “research guide” or “family law” and “pathfinder.” I just tried the first search, and a number of helpful options came up.

If you need to find something more directly about your state (and most of the time, that is the case), you could try adding the name of the state to your search. Another, and probably more helpful, option, is to go to the home page for an academic law library in your state. Most such law libraries will have state specific, as well as more general, research guides, but they may not appear in Google. Because each law library works differently, you will probably have to poke around the web-site to see where the research guides are located, but usually, they are listed in the “Reference” or “Search” section of a given law library’s homepage.

As an example, check out the research guides on the UCLA Law Library web-page, which cover a variety of California and federal topics.

   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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  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]

Just yesterday, in our post on Family Court Civil Gideon, I noted that the American who is non-poor (but not rich) very often cannot realistically afford a lawyer, but is not helped by the Civil Gideon movement.   By coincidence, the Chief Justice of the Supreme Court of Canada, Beverley McLachlin, warned on Thursday that the middle class in her country is also often denied effective access to justice due to the high cost of retaining counsel.  See “Access to justice is critical for Canadians: chief justice,” National Post/Canada.com and “Top judge sounds alarm on trial delays,”  The Globe and Mail,  (March 9, 2007)

   The Chief Justice warned: “Access to justice is quite simply critical. Unfortunately, many Canadian men and women find themselves unable, mainly for financial reasons, to access the Canadian justice system. Some of them become their own lawyers, or try to.. . Hard hit are average middle-class Canadians.”

According to the National Post:

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 In “Family law not for amateurs” (March 5, 2007), lawyer Paul J. Martinek used an op/ed piece in the Boston Herald to introduce the Massachusetts public to the Civil Gideon concept, focusing on its relevance to family court matters.  Martinek is the editor of Massachusetts Law Brief. 

• “Civil Gideon” is the right – and the name of the movement to obtain the constitutional or legislative right — of low-income individuals to the appointment of a lawyer when basic human needs (such as those involving shelter, sustenance, safety, health or child custody) are at stake in a court proceeding. The name comes from the analogy to the right to counsel in criminal cases, which was announced by the U.S. Supreme Court in Gideon v. Wainwright. [see our prior post on a pilot project in California] 
•  On August 8, 2006, the House of Delegates of the American Bar Association unanimously passed the following Civil Gideon Resolution: “RESOLVED, That the American Bar Association urges federal, state, and territorial governments to provide legal counsel as a matter of right at public expense to low income persons in those categories of adversarial proceedings where basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody as determined by each jurisdiction.” (emphasis added) See “A Civil Law Gideon,” ABA Journal, Aug 8, 2006 (via Trial Ad Notes)

   Warning: I’m about to upset some of my usual allies:  I agree with the fundamental — and I hope uncontroversial — assertion made by those in the Civil Gideon movement that our government must ensure fair and effective access to justice for all, including the poor, and especially in matters related to basic needs and rights.  But, “Family law not for amateurs“ underscores my growing discomfort with the notion that access to justice can best be achieved in our society by giving publicly-funded lawyers to low-income Americans in most of the circumstances in which they are likely to find themselves in court.  

Like the proponents of the ABA’s Civil Gideon Resolution (e.g., here and here) Martinek argues that no lawyerless litigant can get a fair hearing when the other side has a lawyer — and that having a lawyer will ensure such fairness.  Although he mentions that there are “some practical downsides” with Civil Gideon (such as its ”staggering” cost, difficulties telling who is eligible, and disincentives to settle when you have a free lawyer), Martinek concludes that “something” must be done and:

 ”The issues that are litigated in family courts - especially those involving the right to see and help raise one’s children - are too important to be dealt with by emotionally overwhelmed mothers and fathers with no training in the law.”

I believe we need to ask whether it makes more sense to increase the importance of lawyers in family and housing courts or to work much harder to structure the judicial system so that most individuals can achieve fair and effective justice without lawyers.  (see our About page)  Based on my experience as a self-help law proponent, a legal ethics watchdog, and an observer of the legal profession’s attitude toward access to justice, and after spending a decade in a law practice focused on Family Court, here are some of the problems that I have with the lawyers-for-all-style Civil Gideon:

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Stewart Levine, an author and consultant in the area of alternative dispute resolution, has piece The Many Costs of Conflict in the December issue of Law Practice Today.

The cost of conflict is composed of the following:

1. Direct Cost: Fees of lawyers and other professionals
2. Productivity Cost: Value of lost time. The opportunity cost of what those involved would otherwise be producing.
3. Continuity Cost: Loss of ongoing relationships including the “community” they embody
4. Emotional Cost: The pain of focusing on and being held hostage by your emotions

It’s worth thinking about all these costs when you contemplate litigation. Even if you proceed pro se to avoid paying for a lawyer, you can’t avoid the other costs (and sometimes they’ll shoot up because of your decision to go pro se). Is your dispute with your neighbor who trimmed your tree really worth the hours you’ll spend working on and worrying about the litigation and the bitterness that the litigation will foster? Maybe so. But think about it.

   On the surface, the New York Times devotes a lot of column space today to an important issue involving the pro se litigant.  The reporter states: “As the number of pro se litigants has grown in recent years, judges across the country have struggled with the question of how far to ease the rules to help the self-represented while remaining fair to the party with counsel.”   Unfortunately, rather than addressing the topic in a manner that might enlighten the public or promote needed judicial reform, “The Marriage Lasted 10 Years. The Lawsuits? 13 Years, and Counting” (Feb. 19, 2007) is simply another juicy tale of an over-the-top pro se outlier.

The article focuses on Michael Melnitzky, 69, who “was once a recognized art expert” and conservator but now declares “I am a litigator.”  As the article stresses “when his wife filed for divorce in 1994, Mr. Melnitzky became something else: a litigator. A prolific one. And although he has no law degree and only himself as a client, he has never been busier.”  Here are excerpts from the article about Melnitzky’s situation:

•   Through a series of self-fashioned lawsuits and appeals, issues that might have been settled with his divorce have gone on for 13 years, 3 years longer than his marriage.
• He has sued virtually everyone involved: one of his former lawyers, his wife’s lawyer, three banks, five judges and a psychiatrist appointed by the court to evaluate his mental health. In unrelated cases, he has sued a neighbor, a thrift shop, the city and his former employer. And he has almost always lost.
• When not in court, he applies the same meticulous attention that he once put into restoring great Impressionist works to researching the law. Legal texts fill his cluttered brownstone on the Upper East Side, whose top floors he rents out.
•   In the last 10 years, he has lost 17 of 18 lawsuits — the remaining one is still active — and 30 of 32 appeals. The two appellate victories ultimately ended in defeats after the cases were returned to lower courts.
• But Mr. Melnitzky is unusual because of the volume and complexity of his litigation, and because he arguably could afford a lawyer but has seldom chosen to use one, even in the face of repeated failure.  

Justice Walter B. Tolub of Manhattan Supreme Court wrote in a 1999 ruling that the advantages of Mr. Melnitzky’s decision to represent himself “soon became clear”:

  “Mr. Melnitzky was free to plead ignorance of the law when it suited him, at the same time picking and choosing those points of law which he ‘discovered’ were in his favor,”  

The Times tells us that “Legal experts say Mr. Melnitzky is hardly alone among people who become fixated with the legal system, filing lawsuits again and again without the aid of a lawyer to try to reverse an earlier loss.”  This rather small group of “fixated” or “obsessed” pro se litigants clearly raises far trickier problems in docket management and courtroom control and fairness than the everyday self-represented litigant, who appears in courthouses across the nation in tens of thousands of lawsuits each year.  The typical pro se litigant has neither the time nor the capacity to manipulate the court with selective presentation of the law based on extensive research and deep knowledge of the issues.   

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  There will almost certainly be much discussion this week of Robert I Sutton, Ph.D’s new book “The No Asshole Rule: Building a Civilized Workplace and Surviving One That Isn’t” (Warner Business Books, release date Feb. 22, 2007).  At law-related weblogs, the talk will be spurred by Sutton’s identically-titled article in the latest American Lawyer, which was also posted this weekend at Law.com (Feb. 20, 2007).  Sutton is a professor of management science at Stanford University.  He argues that “assholes” are bad for business, regardless of their individual effectiveness.

In a favorable book review at Life at the Bar, Julie Fleming Brown explains:

 ”According to Bob, an asshole is one who oppresses, humiliates, de-energizes, or belittles his target (generally someone less powerful then himself), causing the target to feel worse about herself following an interaction with the asshole.  (And, as his examples prove, this behavior is not by any means limited to male perpetrators or female victims.)  These jerks use tactics such as personal insults, sarcasm and teasing as vehicles for insults, shaming, and treating people as if they’re invisible to demean others.  Sutton distinguishes temporary assholes . . . from certified assholes, who routinely show themselves to be nasty people.  The latter, he argues, must go [from the workplace].

• The book offers a 24-question self-test to see if you are “a certifiable asshole.” You can take Sutton’s Asshole Rating Self-Exam (ARSE) at Guy Kawasaki’s ElectricPulp website.  I expect webloggers will be tagging eachother to find out the results. Let me say in advance that I do not plan to take the test (much less reveal my results). 

Although the book deals with all sorts of jobs, it can be no surprise that many people think about lawyers when they hear reference to Sutton’s title character.  In his weblog post “American Lawyer on THE NO A**HOLE RULE” (Feb. 11, 2007), Sutton notes that doctors appear to be more abusive in the workplace than lawyers, but nevertheless explains that “there are some special challenges for law firms that want to enforce the rule.” He concludes, “Indeed, you might say that one key to law firm management is learning how to turn your assholes on and off!”  [Over at f/k/a, you can find my fuller treatment of Lawyers and the No Asshole Rule.]

In another posting, “Lawyers and The No Asshole Rule (Feb. 15, 2007), Sutton says that lawyers are naturally interested in The No Asshole Rule.  He quotes from a 2004 piece by Aric Press, editor of American Lawyer, suggesting that law firms do “jerk audits.”  One reason for the difficulty in applying The Rule within law firms is that “people hire lawyers to be tough and nasty –to do their dirty work.  But people who are best suited for such work aren’t always capable of turning off their venom when they deal with staff members and fellow attorneys.”

 Sutton is right that many people hire lawyers “to help intimidate rivals . . . through demeaning interpersonal moves meant to unnerve and intimidate opponents — dirty looks, put-downs, teasing, glaring, and intense eye contact.”  As he suggests, there may even be times when those skills may help a lawyer ”in the courtroom, a deposition, or a negotiation when used at just the right moment.”  However, I want to stress that such tactics will virtually always harm the cause of any pro se litigant. 

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          Earlier this week, SelfHelpSupport.org added the document TOP 10 THINGS YOU SHOULD KNOW ABOUT JUDGES to its Library.  The list was written by Kelley Carpenter, Public Information Officer, Jackson County, Missouri, Circuit Court.  This one-page document “provides insight into the limitations of judges by spelling out 10 simple things everyone should know” about them and their role. 

 All who participate in our judiciary/justice system [including judges] should keep these Ten Things About Judges in mind.  Here are a few Things that may be especially relevant to the pro se litigant:

1. No matter what we decide, at least one side is going to be unhappy, sometimes all sides.
2. An “activist judge” is a judge that makes a decision the critic doesn’t agree with.
4. We have families and private lives we wish to protect, so please don’t show up at our homes.
5. We make decisions based on the law and the evidence, not public opinion or our personal views.

7. Both Judges and the media are information gatherers, information disseminators and decision makers. We are both the messengers, and people often want to shoot the messenger.
9. The Judge can only consider evidence which is admissible in court. . . .
10. The constitution is not a “technicality!”

p.s.  My only quibble is with #7, which seems to overlook the fact that, as ”decision makers,” judges are not simply “messengers.”  Finding facts and applying the relevant law are not merely the automatic functions of a mesenger.

   Abraham Lincoln will be quoted and discussed a lot today, the 198th anniversary of his birth.  I thought I’d share with you a few excerpts from his Notes for a Law Lecture (July 1, 1850).  Aimed at lawyers, the Lecture has good advice for pro se litigants, too. (emphases added)

•  ”The leading rule for the lawyer, as for the man of every other calling, is diligence.” . . . [Perform] “the labor out of court when you have leisure, rather than in court when you have not.”
•  ”[P]eople are slow to bring [a lawyer] business if he cannot make a speech. And yet there is not a more fatal error to young lawyers than relying too much on speech-making. If any one, upon his rare powers of speaking, shall claim an exemption from the drudgery of the law, his case is a failure in advance.”
• “Never stir up litigation. A worse man can scarcely be found than one who does this. . . . A moral tone ought to be infused into the profession which should drive such men out of it.”
•  ”The matter of fees is important, far beyond the mere question of bread and butter involved. Properly attended to, fuller justice is done to both lawyer and client. An exorbitant fee should never be claimed. As a general rule never take your whole fee in advance, nor any more than a small retainer. When fully paid beforehand, you are more than a common mortal if you can feel the same interest in the case, as if something was still in prospect for you, as well as for your client. And when you lack interest in the case the job will very likely lack skill and diligence in the performance.”
• “There is a vague popular belief that lawyers are necessarily dishonest. I say vague, because when we consider to what extent confidence and honors are reposed in and conferred upon lawyers by the people, it appears improbable that their impression of dishonesty is very distinct and vivid. Yet the impression is common, almost universal. Let no young man choosing the law for a calling for a moment yield to the popular belief — resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer. Choose some other occupation, rather than one in the choosing of which you do, in advance, consent to be a knave.”

 You can learn more about Abraham Lincoln’s lawyering (including what kind of fees he charged) at f/k/a, in the posting A Lincolnesque Law Practice?  And see, Lawyer Lincoln Was a Bargain

 This is a good time of year to let people who make your life fuller or easier know that their efforts are appreciated.  Although I’m not exactly a secret admirer of SelfHelpSupport.org, I often take the website and the folks behind it for granted — forgetting to tell them and you how helpful their services and information are for the self-help legal community.

SelfHelpSupport.org is funded by the State Justice Institute and describes itself as a “Network for Practitioners of Self-Help Programs as well as an online Clearinghouse of information relating to self-representation.”   I check out the SHS home page daily to look for new Announcements or Releases by the Network, and to see what’s new in their Library or what they have found in the news media that I’ve missed. 

This past week, I discovered:

• A link to Montana House Bill 60: “Access to Justice Civil Act, Self-Help Program”, which was introduced by J. Parker and would provide for “state-level, self-help legal resources, tools, information, and training materials on a statewide basis in a cost-effective manner emphasizing technology and volunteer services.”  If passed, the law would fulfill  the self-help goals of the State’s Chief Justice, discussed by Orijit Ghosal in this post last month.  A hearing on the Bill was held on Feb. 7, 2007.
• A Small Claims Court Self Help Video–from the 12th Judicial Circuit Court in Florida.
• 20 TIG Conference presentations (made to the annual LSC Technology Initiative Grants Conference, Feb. 2007) – on topics such as evaluating statewide websites and non-web projects, online community building, innovative case management systems, hot docs service delivery, thwarting cyber piracy, Live Help programs, etc.

  If you’re an active self-help law practitioner, you are surely already a member of the Self-Help Support Network — or have no excuse not to join right now.   I’d like to urge other readers who have a professional, organizational or academic interest in assisting self-represented litigants to join — especially, those who would like to become active in their local courts, community or school, by starting, lobbying for, or volunteering to help, a self-help center or project.  Membership is free and brings with it access to the voluminous information in the SHS Library, the services offered through the site, and the nearly 2000 network members.  

For example, if you were a member, you could take advantage of:

• the SHS Networking/Mentoring Service, which connects you with assistance from self-help programs around the country, by finding “the right person to help you think through and get ideas for how to launch or improve your self help program.”
  (see our prior post)  
• their February webinar, A Guide to Selfhelpsupport.org, where you can “Learn about the many programs, services, and resources offered by selfhelpsupport.org.” It is on Feb. 22, 2007 from 3-4pm (Eastern). Madelynn Herman will be presenting.
• the materials from the January Webinar on Self Help in Rural/Small Court Settings–with Frances Thompson, Eleanor Gerlott, and Mary Boudreau.

Note: The SelfHelpSupport.org site is for the self-help practictioner or advocate, and is not geared to the individual pro se litigant.   If you are a person who needs legal help or pro se assistance, or wants to find an attorney, you should consult the extensive materials described on the SHS webpage Resources for Self-Represented Litigants, or visit www.lawhelp.org to find legal resources in the state in which you live.  (Of course, your friendly shlep weblog is here for you, too.)

 I’m not going to get gushy about SelfHelpSupport.org.  I do want to thank all the people and groups that make it possible and keep it timely.  Consider yourselves hugged.

    Paul Weinbaum lives in Las Cruces, New Mexico.  Although “las cruces” means “the crosses” in Spanish, Weinbaum believed the City and its public school district were violating the U. S. Constitution by depicting Christian crosses on their logos, buildings and vehicles.  He therefore filed pro se lawsuits against the City and the Schools of Las Cruces.  Last November, Weinbaum lost his case against the City (see Religion Clause weblog, Nov. 10, 2006) and, in December, 2006, he lost his case against the school district (see Religion Clause, Dec. 9, 2006).   His appeal of the school case is pending before the 10th Circuit Court of Appeals.

   The Las Cruces school district is not waiting for the appeal to be finalized to make its next move.  It has filed a motion asking for about $16,000 in legal fees from Weinbaum, claiming that the suit against the schools was clearly “frivolous,” once the City won its case.  Las Cruces Sun-News, ”Crosses case may prove to be pricey,” Jan. 27, 2007 (click for LCPS motion to recover attorney’s fees and for Plaintiff’s response)  The District says it actually spent $53,000 on legal fees defending Weinbaum’s charges, but is only asking for fees accrued after the City’s case was decided.

Without more information and research, I can’t have a clear opinion on whether it was frivolous for the plaintiff to continue his lawsuit once he lost the case against the City.  (Remember, in legal terms, “frivolous” means without a colorable claim in fact or law.) It’s possible that different criteria might apply in the context of a school district (with young, impressionable minds) than for the City as a whole.  The points mentioned in the Sun-News article as Mr. Weinbaum’s defense against the frivolousness claim do not, however, appear to hold much water:

• He told the Sun-News, ”We never asked for any money, which should be a sign,” the lawsuit is legitimate.  
• He told the Court: “The pro se plaintiff (Weinbaum) never wanted his concerns to reach the legal system as he believed, perhaps naively so, that the defendants would be open to ideas about equality this being the 21st century, they being elected individuals who swore an oath to obey constitutional laws.”  and,
• According to the news article, he continued that “he was open to settling the case before trial, but attorneys for the district wanted an ‘all or nothing. resolution which forced him ‘against the “wall of no compromise”.’”

We’ll let you know whether Mr. Weinbaum has to pay the School District’s legal fees.  If he does, it will be an important reminder that bringing a pro se lawsuit can be quite expensive, for defendant and plaintiff.  Common sense, and a good understanding of the law and of your adversary, are needed when deciding to bring or to continue any lawsuit.  

  In July 2004, South Carolina insurance agent Ernest B. Chavis made a social visit to his former neighbor Annie Belle Weiss, who was then 91-years old.  Because she trusted him to be “objective” (having also had business dealings with him), Ms. Weiss asked “Can you help me make a will?”  Chavis agreed to help her with a simple will and ”she directed [Chavis] as to how she wanted her property divided.”   His good deed resulted in a lawuit by her disgruntled heirs and, this week, in a finding that Chavis had engaged in the unauthorized practice of law ["UPL"].  See NYTimes/CNET, “Police blotter: Heirs sue over will-making software,” by Declan McCullagh, for News.com, Jan. 24, 2007; via Howard Bashman and Orijit Ghoshal)

What behavior, which was done without pay, won Chavis this condemnation?  According to the unanimous decision in Chavis v. Franklin (Supreme Court of South Carolina, Opinion No. 26251, January 22, 2007), he “used a ‘Quicken lawyer disk’ to generate a generic will on his home computer and he filled in the blanks.  He brought the will to Ms. Weiss on July 31 when he went to visit her in the hospital and she signed it.”  He also drafted a power of attorney for her (which the Court also deemed to be UPL). “The will names respondent as personal representative of Ms. Weiss’s estate but he is not a beneficiary.”    
 Quicken’s WillMaker Plus 2007    

Here’s the Court’s reasoning in declaring Chavis’ conduct to be the Unauthorized Practice of Law [emphases added]:

• “The preparation of legal documents constitutes the practice of law when such preparation involves the giving of advice, consultation, explanation, or recommendations on matters of law. [cite omitted]  Even the preparation of standard forms that require no creative drafting may constitute the practice of law if one acts as more than a mere scrivener. The purpose of prohibiting the unauthorized practice of law is to protect the public from incompetence  . . . (“The amateur at law is as dangerous to the community as an amateur surgeon . . . .”).”
•   ”The novel question here is whether respondent’s actions in filling in the blanks in a computer-generated generic will constitute the practice of law.  Respondent selected the will form, filled in the information given by Ms. Weiss, and arranged the execution of the will at the hospital.  Although these facts are not in themselves conclusive, the omission of facts indicating Ms. Weiss’s involvement is significant.  There is no evidence Ms. Weiss reviewed the will once it was typed.  The will was not typed in her presence and although respondent relates the details of what Ms. Weiss told him to do, there is no indication he contemporaneously recorded her instructions and then simply transferred the information to the form.” 
• “We construe the role of ‘scrivener’ in this context to mean someone who does nothing more than record verbatim what the decedent says.  We conclude respondent’s actions in drafting Ms. Weiss’s will exceeded those of a mere scrivener and he engaged in the unauthorized practice of law.

The Court also dropped a footnote [#5] emphasizing “The fact that respondent received no compensation is irrelevant.”  It went on to favorably cite a Connecticut decision that noted “a lack of compensation in fact makes the situation worse” — because “the public, through natural cupidity, are the more readily attracted to something which appears to be a ‘giveaway’ project or a chance to obtain ’something for nothing. ”  Grievance Committee of the Bar of Fairfield County v. Dacey, 222 A.2d 339, 351 (Conn. 1966).  How’s that for respecting consumers?

 Of course, it’s ludicrous to say that a nonlawyer volunteer who uses a proven product like Quicken (or a document preparation tool life LegalZoom), to help a friend with a simple will, is “as dangerous to the community as an amateur surgeon.”   Moreover, it is simply bad policy.  Rather than blindly apply old precedent to a modern context, this case would have been an excellent opportunity for the Court to bring the definition of the practice of law into the 21st Century.

As Villanova law professor Catherine J. Lanctot wrote in “SCRIVENERS IN CYBERSPACE: ONLINE DOCUMENT PREPARATION AND THE UNAUTHORIZED PRACTICE OF LAW,” 30 Hofstra Law Review 811 (2002, 44 pp, pdf), those who wish to apply UPL enforcement against such software products or document preparers ”must not lose sight of the broader implications.”  Not only are constitutional challenges likely, but :

“[W]e must consider the ramifications of such enforcement. The public reaction would likely be negative. Enforcing unauthorized practice of law statutes against online document preparation services would be neither painless nor popular. The lay public, which already detests lawyers, generally perceives unauthorized practice of law enforcement as yet another way for the legal profession to line its collective pockets at the expense of consumers. . . .

“In addition, it is at least possible that these websites are managing to provide some consumers with a necessary service—basic legal documents at an affordable price. At a time when the bar seems to have abdicated its responsibility to provide routine, noncomplex legal services to the poor and middle class, it could well be counterproductive to try to shut down one vehicle for serving those unmet needs.”

The Chavis opinion basically denies the benefits of digital technology to any consumer who needs assistance using the software or website.  (Note: the Court goes through the motions of looking at other factors, but then concludes that Chavis engaged in UPL because he played more than the role of a mere scrivener.)  In fact, Chavis would appear to apply equally to printed self-help books or forms.  So, forget about helping your old auntie or parent, the grumpy old man nextdoor, or your non-techie spouse or sibling — and don’t even think about volunteering down at the Senior Center.   It’s an outcome that could easily lead the public to conclude, as Prof. Lanctot says, that UPL is ”yet another way for the legal profession to line its collective pockets at the expense of consumers”

  For more background on the long battle between UPL and self-help materials, and on efforts to define the practice of law in a consumer-friendly way, see:

• “Nolo v. Texas — Self-Help Law and First Amendment Rights Protected” (Oct. 1, 1999). This press release contains a brief summary of the battle between Nolo.com and the Texas bar — when Texas lawyers tried unsuccesfully a decade ago to ban Nolo’s publications from being sold or distributed in the state, claiming they amounted to the unauthorized practice of law. [See Comment 2, below, for more details about Nolo v. Texas, as well as the battle over the ground-breaking bestseller How to Avoid Probate!, by Norman Dacey.]
• HALT’s UPL Project (where the legal reform group explains why the “unauthorized practice of law” should be limited to saying you are a lawyer when you are not.)
• The approach of the Federal Trade Commission and Department of Justice to defining the practic of law — Remarks to the ABA (2002)
• The postings and materials that are linked to f/k/a’s Unauthorized Practice page.