Work Group 3

Work Group Charge - What changes and innovations can we bring to the system – courts, private bar, and legal aid providers – to enhance or increase access to justice?

Work Group Participants Include:
Brett Baber, Chair; Stanley Marshall, Vice Chair; Mary Richardson, Staff

Members – Seth Berner, Peter Bickerman, David Cluchey, Aria eee, Penny Hilton, Steve Hoad, Faye Luppi, Arnold McDonald, Tamar Mathieu, Lawrence Reichard, Colby Wallace

Following a collaborative process over the past nine months, the members of Working Group Three[1] submit the following priority recommendations to improve the utilization of lawyers to enhance access to justice. A complete list of all of our suggestions is included at the end of this report.

1. Adoption of a Civil Right to Counsel Planning and Implementation Commission.

It is well documented that a vast number of Maine residents are foregoing legal representation during civil proceedings where basic human needs are at stake, such as those involving shelter, sustenance, safety, family matters and health. Despite the efforts of the private bar and the providers who currently serve the indigent, there are many individuals who are not being adequately served within the current system. For example, in 2003 neither party had an attorney in 42% of all divorce cases involving children and in 61% of the cases where no children were involved. In 78% of the protection from abuse hearings held in 2003, neither party had an attorney. While these statistics may be a product of non-contested matters to some extent, there is likely to be a fairly high segment of the parties who simply could not afford counsel at this critical juncture in their lives. Because basic human needs are at stake, it is as essential that all individuals be afforded with access to counsel under these circumstances as it is in the criminal justice system.

Priority: This goal should be given high priority for immediate initiation and a sustained long term effort.

Strategies: The Commission should consider, among other topics: costs and evaluation of funding mechanisms; the scope of the right; eligibility criteria; types of representation and/or the scope of services; the types of providers; screening/process; when does the right attach; right to counsel on appeal; phasing in of implementation; monitoring and evaluation of a pilot project.

The Commission will need to develop and implement a public awareness campaign to educate the public, policymakers and interested stakeholders about the civil right to counsel.

Based upon the results of the initial analysis, the Commission would then need to undertake a legislative effort to establish a civil right to counsel in Maine. This effort would include: drafting legislation; identifying sponsors; and developing grass root support for adoption.

Implementation: To implement this strategy, the Working Group recommends that the Justice Action Group support the proposal to be submitted by the Governor’s Office to create a Civil Right to Counsel Planning and Implementation Commission.

Efficacy Assessment: On a short term basis, this recommendation will be achieved if the Governor appoints a Commission to promote civil access to counsel. Long term success will be measured by the adoption of a right to counsel law.

2. Efforts Should Be Undertaken to Centralize, Coordinate and Develop Technological Access by the Public to Lawyers and Legal Information.

Through its Advertising and Technology Subcommittee, Working Group Three identified four primary areas where initiatives could be undertaken to use advertising and technology to educate and bring resources to the public about access to justice. They ranged from the creation of a centralized technical unit and website to a public education outreach project.

Priority: This goal should be given high priority for immediate initiation and a sustained long term effort.

1. Centralized Technical Unit to coordinate statewide website and other technology based projects.

Overview: There is a significant need for a centralized technical unit to: 1) manage a statewide legal resources website for use by low income service providers, the public, and the private bar; and 2) further recruit, coordinate and train attorneys and other partners to develop and provide legal assistance via technology. The existing www.helpmelaw.org website has the potential to serve as such a comprehensive resource, but the upcoming retirement of Hugh Calkins, the main architect of this website and other technology-based projects, may have an appreciable impact going forward.

Recommendation: A centralized technology unit should be created that would: 1) manage a statewide legal resources website (www.helpmelaw.org) for use by low income service providers, the public, and the private bar; and 2) further recruit, coordinate and train attorneys and other partners to develop and provide legal assistance via technology. Part of the task of such a unit would be to inform both the legal community and the public about what is available on such a website. Such efforts would both increase public access to legal information, and deflect calls from legal service providers for information available on the website. The public information campaign should also educate the public about how to access legal assistance services by directing those seeking services to begin with the website. This project should be integrated, however, with efforts to ensure that capacity levels of legal services providers will be adequate to handle increased demand by those who access the website.

Resources: This central unit should include experts from Pine Tree Legal Assistance and other legal services providers, members of the private bar with this expertise, and adequate staff support. Such an office could also manage a VISTA legal services project, as explained further below.

2. Support the Maine Volunteer Lawyers Project in further engaging attorneys via technology. Subcommittee members discussed the following two projects with Mary Richardson, VLP Director, and agreed that these projects which the VLP hopes to develop as part of its operations, should be supported as effective ways to engage attorneys via technology. The development and implementation of both projects will require additional staff resources at VLP in addition to possible investments in technology.

a) VLP would like to expand telephone services to include appointments for limited consultations in areas such as education and consumer law. This project is high on the list of current VLP strategic priorities. It would follow the existing VLP model of the Family Law Helpline which sets up phone appointments between pro se family law clients and volunteer attorneys and law students in order to provide legal advice and brief assistance. This model offers a way to address the geographic access problems of some pro se clients who need advice in certain identified areas of law. Expanding the model to new areas of law and increasing the capacity of the existing Family Law Helpline will require expanded staff resources to screen clients, develop case files, and set up appointments for the calls, as well as recruiting and training panels of volunteer attorneys.

b) Legal Clinics staffed by trained volunteers and attorneys. The format envisioned is an educational presentation on a particular legal topic for pre-registered, pre-screened attendees, followed by one-on-one assistance. This is another service model that has been identified by VLP as a potential area for expanded services and private attorney involvement, based on its success in other pro bono programs around the country. The first steps would be to research existing models, best practices, and the interest of potential collaborators, including county bar associations, libraries, and colleges.

3. Enhance technology to allow attorneys to meet with clients and both to appear in court via a video link. These links are needed in particular to increase access for people of limited means and ability, such as the elderly, and those in rural areas. Video links could allow volunteer or legal services attorneys to meet with clients, regardless of their respective locations. This capacity is particularly important in Maine where the vast majority of private attorneys are located in the southern, urban areas of the State, limiting the opportunities to provide pro bono assistance to clients in northern and rural areas. Such links could also enable attorneys and their clients to participate in a pre-trial conference, for example, or for domestic violence victims to discuss an emergency protection order with a judge. The use of technology should be given high priority, and that lessons from the Pine Tree Legal Assistance pilot project from some years ago be incorporated.

Resources: Pine Tree Legal sites and the courts currently possess and use video conferencing equipment; the University of Maine system also has such equipment. A site network would have to be developed, with protocols for use, and promoted among attorneys. Such a project would require the assistance of the Unit proposed in part 1 to coordinate technical design, protocols, and support.

4. Develop or continue educational outreach projects that educate the public about available resources and substantive areas of the law, as well as when to contact a lawyer.

(a) Ask A Lawyer
Efforts should be undertaken to revive a newspaper Q&A that was coordinated by LRIS/MSBA. The columns could also be archived in PDF format on the MSBA website in the FAQ section. Topics would include a wider range of issues than those possible under the limitations imposed by most grants to legal service providers. A search function could be developed eventually, contingent on MSBA resources for design and compatibility with other MSBA technology needs.

(b) People's Law School Video/On Your Own Live
A video series should be created to educate people about the law, courts, and the legal system. These videos could be made available to community public access cable, posted on the Helpmelaw website, be incorporated in a live presentation, or distributed to high schools. It is also recommended that distribution of all “On Your Own” materials be expanded to include GED and naturalization classes, and targeting 10th grade students rather than seniors to reach students who drop out before reaching senior year.

(c) Legal Literacy Road Show
A “speakers bureau” should be revived to make presentations at community groups about common legal problems, how to recognize a legal problem, and when to call an attorney. This type of presentation could also broaden stakeholders advocating for access to justice.

Resources: To implement these public education recommendations would be a complex project needing substantial funding, collaboration among various institutions and programs, quality review, advertising, and distribution. A standardized Powerpoint presentation/curriculum on various topics with handouts could help both in ensuring consistency and in recruiting attorneys to make presentations. Current resources would include the MSBA staff (who originally coordinated the “speakers bureau”), LRIS, and VLP. A VISTA volunteer could be used effectively in coordinating these public education efforts. Such positions are funded for one to three years to bring in a person to help coordinate collaborative projects that impact underserved populations in innovative and lasting ways. VISTA requires investment from the host organization, both financial and in-kind. More information can be obtained from the Corporation for National Service, the Maine Commission for Community Service, and the Maine Campus Compact.

Implementation: As with the advent of the Maine Campaign for Justice, the various providers and the appropriate staff, sections and Committees of the MSBA should meet to discuss and implement these strategies.

· Is there an identifiable “brand” for public access to Maine legal information?

· Does a legal resources web site provide “one-stop shopping” for potential legal resources?

· Is there an increasing level of well written or produced legal information available to the public?

· Are the various service providers properly identified for ease of access by the public?

3. Statewide efforts should be undertaken to develop leadership strategies to support pro bono and public service efforts by attorneys.

Overview: Discussion among the various subcommittees of Working Group Three led to recognition of a gap in leadership in Maine pertaining to issues of private bar involvement in increasing access to justice. It must be recognized at the outset that Maine attorneys have demonstrated an active commitment to providing pro bono services and to funding legal service providers who provide direct services. This exemplary commitment has been recognized by both the Maine judiciary and throughout the country.

These efforts have been accomplished largely without any centralized leadership effort. Unlike other states, Maine does not have an active standing leadership group which promotes and furthers pro bono and public service efforts by attorneys throughout the bar. While the boards of various legal services providers and committees of the courts may provide some leadership for their own programs, the lack of statewide leadership and vision in this field has limited the overall impact of private attorney involvement in achieving access to justice in Maine. Before any broad-based increase in pro bono efforts can be achieved, it will first be necessary to create centralized leadership and coordination at a statewide level.

Recommendation: A permanent standing committee (or other similar body) should be created to provide statewide leadership for pro bono and public service within the Maine bar. In other states, this body is most commonly situated either within the State bar association (similar to the model used by the American Bar Association) or as a committee of the statewide access to justice organization. The appropriate home for this committee in Maine would need to be determined and would be impacted by other outcomes of strategic planning, most importantly through the clarification of JAG’s future mission, its role and goals.

The mission of the Standing Committee on Pro Bono and Public Service Representation (“the Standing Committee”) would be to promote and facilitate the engagement of the Maine bar – firms, professional organizations of the bar and individual attorneys – in bridging the access gap for low-income and other needy people through pro bono representation and public service activities. The Committee’s activities might broadly include:

· Spearheading efforts to shape government or Bar policy and professional rules around pro bono

· Facilitating coordination among stakeholders including the Courts, legal services providers that utilize pro bono attorneys, the Bar Association and other organized private bar groups

· Promoting and recognizing the efforts of the Maine Bar to provide access to justice.

· Providing support to law firms and individual pro bono attorneys including services such as training, a resource clearinghouse and mentoring programs

Several of the following specific recommendations of the Attorney Education and Incentives subcommittee would be appropriately led by the Pro Bono and Public Service Committee including: studying and developing a pro bono reporting system, advocating for financial and other incentives and relief for attorneys serving low-income communities, increasing collaboration with the Courts and encouraging law firm pro bono.

Priority: This goal should be given high priority for immediate initiation and a sustained long term effort.

Resources: The standing committee should include judges, court clerks, court administrators, members of court advisory groups, pro bono attorneys, staff from pro bono programs, and representatives from the MSBA. The chair should be selected from the court or private bar leadership. The Committee will need adequate support staff in order to carry out its initiatives– in some states and at the national level this support has taken the form of a staffed statewide Center for Pro Bono and Public Service operating under the Committee’s direction which is a model for Maine to consider.

a. Encouraging pro bono by law firms: There are a number of mechanisms that could be pursued to support Maine law firms to increase their commitment to pro bono representation by firm attorneys:

· Assisting law firms to identify and develop pro bono practice areas to which they make a firm-wide commitment

· Assisting firms to develop and utilize their pro bono work in their marketing and recruiting efforts

· Increasing recognition within the bar and the general public about the pro bono work performed by law firms

· Encourage friendly competition among firms concerning their pro bono contributions (through recognition, a statewide pro bono pledge program or other means).

Resources: Firm and private bar leaders, firm marketing staff, pro bono programs, the courts and bar organizations should be involved in a working group to identify, develop and implement activities. The Pro Bono Institute can provide support and resources from a national level. The development of programs and projects would require the investment of staff time and financial resources, from the stakeholder organizations or the Standing Committee.

b. Increasing collaboration with the courts to reduce disincentives to pro bono service: There are various court procedures and processes that create barriers to the provision of pro bono representation by the private bar, largely by increasing the amount of time and effort involved in a particular case. Examples of areas which could be streamlined or better coordinated with the courts to reduce these disincentives include: improving calendaring; reducing required court appearances; increasing use of telephonic or video hearings; streamlining the application for filing fee waivers (or making them automatic) for pro bono cases; and increasing the use of technology. There should also be an ongoing forum for collaboration and dialogue between the courts and pro bono providers to facilitate identification of other ways in which the courts could decrease disincentives and increase incentives for the private bar to provide pro bono representation.

c. Evaluation of the efficacy of mandatory pro bono reporting. The Standing Committee should conduct a thorough evaluation of the efficacy of a change to the Maine Rules of Professional Responsibility to require the mandatory reporting of pro bono work by private attorneys as part of the annual registration process with the Board of Bar Overseers. Due to a number of tensions, input should be obtained from a broad cross-section of the private bar before a proposed rule supporting mandatory reporting should be considered. It should be recognized that mandatory reporting may not directly increase the amount of pro bono work being performed by the private bar which has already demonstrated an outstanding commitment to pro bono services and the funding of legal service agencies, most notably through the Campaign for Justice.. Increasing the administrative requirements for the practice of law could have a detrimental impact on enthusiasm for pro bono work. On the other hand, mandatory reporting could provide vital statistics to demonstrate to the public and the Legislature that the private bar is already providing concerted efforts, both financially and through pro bono services, to address the needs of those who cannot afford legal services. It would also provide a concrete means for each attorney to evaluate their own commitment to pro bono service on a systematic basis. Therefore, while further consideration of a mandatory reporting system should be conducted, the Working Group recommends that initial efforts focus on those strategies that will have a direct and immediate impact on the ability of lawyers to provide pro bono services.

· Has the creation of a centralized pro bono and public service committee created programs which will enhance the delivery of pro bono services?

· Are more members of those who cannot afford legal services receiving necessary services through other means?

· Have law firms adopted policies and incentives that encourage their lawyers to perform pro bono and public interest work?

· Have court procedures been evaluated, and changed where necessary, to eliminate disincentives to the provision of pro bon services?

4. Create Financial Incentives and Relief for Attorneys to Provide Pro Bono and Reduced-Fee Services and to Work in Legal Services.

Attorneys experience significant financial barriers which limit their ability to provide significant pro bono services and deter them from entering or remaining in legal service positions. These include high levels of law school debt and narrow profit margins (particularly in solo, small and/or rural practices).

Recommendation: The Standing Committee should work with the MSBA, particularly the New Lawyers Section, to develop various strategies to provide financial incentives and to provide other monetary relief to enable attorneys to provide pro bono and reduced fee services, and to work in legal services.

Priority: This goal should be given high priority for immediate initiation and a sustained long term effort.

· Loan repayment assistance programs with eligibility based upon provision of pro bono representation to underserved groups or work in legal services. (Note: the Maine Bar Foundation has an existing LRAP program available to some attorneys employed in legal service agencies).

· Law school or post-graduate fellowships to encourage the provision of pro bono representation or work in legal services.

· Tax deductions or credits at state and federal levels to offset law school loans for practitioners who provide pro bono representation or work in legal services.

· Charitable business tax deductions at state and federal levels for the provision of pro bono representation.

· Enhance awareness within the bar of the “emeritus lawyer” bar registration classification in which senior attorneys are relieved from paying the annual registration fee in exchange for pro bono services.

Promotion of any of these options would require the participation of a broad group of stakeholders including: the University of Maine School of Law, its alumni and donors; state and federal legislators; the Maine Bar Foundation and other funders; the Maine State Bar Association and other bar organizations. Additionally, efforts undertaken in Maine should align with the activities on the national level led by the American Bar Association, the Legal Services Corporation and other interested organizations. Any programs for which pro bono participation was an eligibility requirement would require verification of pro bono service, possibly in conjunction with a statewide pro bono reporting effort.

Resources: Staff and/or volunteers from the stakeholder organizations would be needed to investigate, develop and promote legislation and programs to provide financial relief from law school debt. Increased financial resources would be required to create or expand fellowship and loan repayment and assistance programs in Maine.

Efficacy Assessment: Have mechanisms been created to reduce law school debt? Have other financial incentives been created to provide incentives to providing pro bono representation or work in legal services? If so, have these mechanisms and incentives facilitated the increased provision of pro bono services by these attorneys?

Working Group Three developed several other recommendations and received suggestions from other working groups which should be considered on a long term basis, including:[2]

· Providing support for “low bono” work (reduced fee) by private attorneys and firms.

· Expanding student pro bono programs to match students with pro bono opportunities and to recognize student achievement in this area.

· Increase collaboration between the Law School, legal service providers and private attorneys to provide role models for public service law and the integration of pro bono work within a law practice through panel discussions, guest speakers and other programs.

· Establishment of a clearinghouse where CLE and other training opportunities could be posted and accessed by a broader audience, including legal and consumer education workshops to advocacy organizations, low income individuals and self-represented litigants.

In addition, Working Group Three had considerable discussion on two topics which have been more thoroughly evaluated by other working groups. Based upon that discussion, Working Group Three supports the following recommendations developed by of other working groups:

Best practices for providing legal advice via electronic chat, e-mail exchange, and blog formats should be explored. Issues such as screening client capacity to use effectively information provided in this format, how to conduct conflict checks, and confidentiality should be considered in using technology to enhance services in this format.

This type of technology, as outlined by Group 2B, should be explored to enhance access to justice in the courthouse. Such kiosks might include telephone support by a volunteer attorney. Both privacy concerns and lack of space in courthouses are issues that would have to be resolved.[3] This approach has apparently been used successfully in other states. A version of this approach was also part of the original “Helpmelaw” grant, and encountered physical/infrastructure obstacles and resistance from the public and court clerks.

[1] The members consisted of Brett D. Baber, chairperson, Sally Sutton, Mary Richardson, Faye Luppi, Penny Hilton, Peter Bickerman, David Cluchey, Patricia Ender, Steve Hoad, Seth Berner, J. Colby Wallace, Tamar Mathieu, aria eee, Kim Moody and Lawrence Reichard. These individuals spent many hours at numerous meetings considering the issues that gave rise to this report. There time and effort is greatly appreciated.

[2] A full discussion of these suggestions may be found in the appendix.

[3] An interesting suggestion our group made in this regard would be to utilize public libraries and/or law libraries for space and staffing.

Work Group 3 - Utilizing Lawyers to Enhance Access to Justice – Final Report