Limited assistance representation pilot program begins Nov. 1

Issue October 2006 By Andrea R. Barter, Esq.

Those who work in the legal profession hold in high regard the maxim that justice should be accessible for everyone, even those who cannot afford an attorney. But the appearance of a self-represented litigant invariably prompts a collective sigh from attorneys, judges and clerks. Failure to properly serve an opponent, or good faith but erroneously drafted documents means a lot of court time and wasted resources.

But on Nov. 1, an 18-month pilot program will begin in Hampden and Suffolk Probate and Family Courts that will allow pro se litigants access to attorneys on a limited assistance representation basis.

"Currently, our rules of ethics and procedure permit a lawyer and client to agree that the lawyer may limit the scope of his or her services in non-litigation matters. But in matters involving court appearances, full representation has been the norm," said Massachusetts Appeals Court Associate Justice Cynthia J. Cohen, chair of the Supreme Judicial Court Steering Committee on Self-Represented Litigants. "Facilitating at least some legal representation should be a significant improvement for self-represented litigants and for the court system."

Advocates of the pilot program say limited assistance representation is a coup for everyone involved: Attorneys can avoid being drawn into lengthy, complex cases or assist more clients by handling discreet parts of a case, either giving advice, drafting pleadings or appearing in court for part of a legal proceeding; Legal Services can take advantage of LAR in terms of leveraging resources; unrepresented litigants can avoid being caught in the complexities of the courthouse; and courts will run more smoothly with better-informed litigants.

According to Cohen, approximately 100,000 civil litigants appear without counsel each year in the courts of the commonwealth. Statewide, close to 50 percent of the people appearing in the Probate and Family Courts are self-represented and the percentage is even higher in the Housing Courts.

"Despite some anecdotes to the contrary, the overwhelming majority of those who appear without counsel do so for economic reasons and not because they want to," said Cohen. "And increasingly, it is not just the poor who are forced to go without lawyers; working-class and even middle-class individuals are finding it increasingly difficult to afford a lawyer when they need one for basic issues involving domestic relations, housing and consumer rights."

The Steering Committee on Self-Represented Litigants was established by the SJC in 2002 in an effort to coordinate a system-wide response to the challenges posed by the growing numbers of self-represented litigants in all Massachusetts courts. The committee has 10 members, all connected in some way with the court system, who were selected by the SJC from nominations submitted by each court department. Members include judges, clerks and the Trial Court's chief law librarian.

The steering committee's mission was to look at work on the pro se issue that previously had been done in Massachusetts and elsewhere, to sift through that work and translate it into action. After doing some initial brainstorming and outreach to set initial priorities, the steering committee established several sub-committees and working groups, which were made up of individuals drawn from the wider legal community.

A "Working Group on Expanding Access to Legal Representation" was asked to look at ways to connect more self-represented people with lawyers and to consider proposing revisions to Massachusetts' rules to explicitly permit less than full-service representation in court-related matters.

The working group was assembled to include a broad range of people with relevant expertise. Members included large-firm and small-firm practitioners, a representative from Bar Counsel's office, an expert on legal malpractice insurance, an assistant register of probate, judges from the Probate and Housing Courts and the director of a legal services organization. It was co-chaired by the MBA's John Dugan, of Doherty, Ciechanowski, Dugan & Cannon PC in Franklin, and Probate Law Section Chair Ned Notis-McConarty, of Hemenway & Barnes in Boston.

The working group recommended, and the steering committee agreed, that limited assistance representation could be an effective way to address the issues presented by the growing numbers of self-represented litigants.

Pilot program
The idea for trying limited assistance representation in a pilot project came out of discussions held during the bench-bar portion of the MBA's Annual Conference in 2005. After hearing from a panel on limited assistance representation, including some national experts, several leading members of the Probate and Family Court bar suggested developing a limited assistance representation pilot program for the Probate and Family Court. The steering committee then convened an advisory group, chaired by retired Judge Edward Ginsburg, and made up of lawyers, court personnel and legal services providers, to help design the pilot project.

Under the program, a Standing Order will permit certain special procedures in the pilot courts in order to avoid running afoul of ethical rules or civil procedural rules. Under the Standing Order, an attorney who has gone through training and been qualified to participate in the pilot program and who has agreed with a client to appear in court on a limited representation basis will be able to file a Notice of Limited Appearance in an approved form. The notice must identify the court event to which the limited appearance pertains, and, if the appearance does not extend to all issues to be considered at that event, it must identify the discrete issues within the event that are covered by the appearance. When the representation that is within the scope of the limited appearance is completed, the attorney will file a Notice of Withdrawal - again in a prescribed form. The lawyer can file more than one limited appearance and withdrawal in the same case.

The Standing Order will also expressly authorize participating attorneys to assist a client in preparing a pleading, motion or other document to be signed and filed in court by the client - a practice known informally as "ghostwriting." The attorney must insert the notation "prepared with the assistance of counsel" on the document, but is not required to sign it. Assisting in this way will not constitute an appearance by the attorney.

"Quite honestly, a lot of ghost writing is going on and everybody knows it. We thought it was important for the pilot context to make clear it was okay to do it," said Cohen.

The court never sees the terms of the written LAR agreement, nor can a judge keep an attorney in a case if the client and the attorney have agreed the attorney will appear only for a limited purpose. According to Cohen, previous attempts at limited representation, where a judge could keep the attorney in the case, were not well-received by the bar.

Concerns with LAR
To help ensure the success of any proposals to assist self-represented litigants, Dugan and Notis-McConarty met with different legal services groups, as well as a variety of MBA and BBA practice groups and county bar associations to discuss LAR and to listen to their concerns.

A primary concern was avoiding confusion in communicating with the pro se litigant and an LAR attorney: How could opposing counsel know who the proper contact on pleadings was?

"We listened very carefully," said Dugan. "The form and the rules are pretty clear. They draw a bright line from when the party is pro se and when an attorney is involved. The attorney will file a Notice of Appearance and copy the opposing party or counsel and the court. It is clear on the face of that notice exactly what the attorney will be doing in the case. When it's time for the attorney to withdraw, they file a Notice of Withdrawal, which is served on all the same parties again. It is a very clear line when an attorney gets involved and when the attorney disengages," Dugan asserted.

Another issue raised was whether LAR would hurt family law practitioners by cutting down their practice: Rather than engage a lawyer to represent a client throughout the process, would clients try to save money by just hiring a lawyer for a portion of the process?

Dugan doesn't agree with that view and found that LAR in other states has not had that result.

"We believe that this actually ends up with more people having more representation. People who don't have the funds or liquidity to pay for an attorney for the entire process will engage an attorney for the beginning or most important part of the action. It appears that that type of client is more likely to engage a lawyer on a part-time basis, and in the absence of LAR would in all likelihood never be represented by counsel," said Dugan.

He recalled a Maine attorney who has found that LAR is very efficient for her family law practice. She establishes her role in advance and gets a retainer that includes that entire portion of the case. In her LAR cases, her collections are much closer to 100 percent than in her general practice.

MBA Vice President Denise Squillante was a member of the advisory group and admits she was never a fan of limited representation legal services. "I was coming from a differing point of view, which was probably why I was accepted to the advisory committee. I welcomed the opportunity to give input, but when you hear that limited representation will allow legal services attorneys to service more clients, what could you have as a response to that?"

Squillante stressed that she was "very grateful that Chief Justice Marshall welcomed bar representatives to give input into this process. As a result, some of the LAR forms have taken into consideration concerns of members of the bar that will be dealing with this in the court."

Training requirements
According to Jayne Tyrrell, executive director for the Massachusetts IOLTA Commission, training and certification are necessary to participate in the LAR pilot program.

"There are a lot of issues in LAR to do it well, ethical issues, and mostly it's a matter of clear communication between the attorney and the client. It's not difficult, but it is thinking outside the box. It is very helpful to have the tools to reframe your approach to clients and be prepared for questions from clients and opposing counsel."

Some training sessions have already taken place, have been taped and are available through the MBA, BBA and the Hampden County courts. The next scheduled training session will take place during the MBA Annual Family Law Conference on Oct. 14 (offered only to conference registrants).

The training teaches attorneys who wish to practice under the LAR system how to make it work safely for them. Tyrrell, who was instrumental in creating the instructional materials, said attorneys will learn the ethical issues involved, the standard of care, common pitfalls and how to avoid them, and how to set up office procedures to work smoothly and profitably. Participants will receive four separate retainer agreements, instructions and checklists, intake and diagnostic questionnaires to help identify which clients lend themselves to LAR.

"This is not for everyone," she cautioned.

In addition, there will be role-playing between opposing counsel, judges and attorneys, as well as intake interviews between clients and attorneys.

"The most exciting thing for me about LAR is reconnecting self-represented litigants with lawyers. In a perfect world, anybody who needed a lawyer would have one. The economic reality is that that's not where we're at right now. That doesn't exist. If this is a way to reconnect people who would otherwise go completely without counsel, it is a win-win for the client, the lawyer and the legal profession," said Cohen.