Opinion: The rationing of justice: LAR, DIY attorneys and pro se

Issue June 2009 By Rebecca Woodworth Brodie

I am perplexed by the seemingly new phrase “DIY (do it yourself) attorney.” In the legal profession, we refer to this as pro se. The term describes a litigant who is representing himself or herself, and it is not a new invention.

As a former legal aid attorney, this “revelation” surprises me. The courts have long been jammed with pro se litigants, and legal aid agencies have been struggling to meet these needs for decades.
Back in 2005, before the housing crisis and the fall of the middle class, the Massachusetts Supreme Judicial Court was already concerned with these issues. As such, the SJC appointed the Massachusetts Access to Justice Commission. The mission of this board was to research and report on the barriers to access to justice, particularly for individuals and families with low incomes.

To anyone working with low- and moderate-income clients, the findings were not surprising. The report opens with the view: “It is apparent to all in the legal community that there are numerous, substantial barriers to justice in the commonwealth.”

However, what may surprise some is that, even back then, studies suggested that “far less than half of those who qualify for free legal assistance can obtain it.” (Barriers to Access to Justice in Massachusetts: A Report, with Recommendations, To the Supreme Judicial Court June 2007).

Why then, is the issue of pro se litigants of such great importance now? In my opinion, the term “pro se” translates, for many, into “poor.” In these harsh economic times, I am wondering if calling oneself a “DIY attorney” is an easier pill to swallow than the idea of considering oneself poor.
Regardless, the system is now flooded with people who are accustomed to being heard and they are being lumped in with those that have been traditionally voiceless.

As a legal community, we have two choices. First, we can use this opportunity to listen to the challenges facing low- and moderate-income clients. We can follow some of the commission’s suggestions and find new and creative ways to address long-standing obstacles. We can try novel approaches to support our courts, clerks, judiciary — and each other.

Our commonwealth is facing a serious financial crisis. But, rather than pare down, I say “Dream big!” Couldn’t this be an opportunity to look for innovative solutions? Newly admitted attorneys can volunteer in exchange for experience, paralegals and lay professional can assist in certain hearings, such as 209As, and we can educate and encourage attorneys to participate in the Limited Assistance Representation (unbundling) program. (The Limited Assistance Representation program was expanded May 1, 2009.
Regardless of Massachusetts’ economic status, I do not believe throwing money at some of these problems is the answer — merely a patch until we run out of funding. Unfortunately for many, that day has already arrived.

Our second choice is to be so overwhelmed that we cower at the enormity of the problem and do nothing. This is unacceptable!

The fact is, our legal system needs a serious overhaul. The disparity in people’s ability to access justice through the courts is a travesty. Sadly, I do not have the answer, nor do I believe that there is one, perfect solution. However, I do believe that we all have a responsibility and an ethical obligation to advance our profession. For me, the solution was to leave legal aid and form a “social law firm” which incorporates the best of legal aid and private practice. At my firm, clients pay legal fees on a sliding fee basis based on income. This makes services accessible to clients and our firm remains safe from funding issues. We have also developed and oversee many community programs and dedicate 20 percent of our practice to taking pro bono cases.
For other attorneys, the solution may be volunteering at a Lawyer-for-the-Day program, helping out at a court or social service agency, or taking a case referred by a legal aid agency. Regardless, it is going to take the help of everyone to improve our current system, or we will all pay the price. As U.S. Judge Learned Hand said, “If we are to keep democracy, there must be a commandment: Thou shalt not ration justice.”

Rebecca Woodworth Brodie is a founding partner at Brodie & Brodie (www.brodieandbrodie.com) and the director of the Massachusetts Litigation and Mediation Collaborative. MLMC provides free and low-cost legal services in seven Massachusetts counties. Additionally, Brodie has developed several community programs, such as the Framingham Family Advocacy Program, which represents the women of MCI Framingham, and the New Attorney Mentoring Program. Brodie is a member of the MBA’s Committee on Access to Justice.