RECOMMENDATIONS
67 FORDHAM LAW REVIEW 1774 (1999)
48. Recent experiments in the delivery of legal services- some but not
all driven by technology- suggest the possibility of significant
increases in access to services, provided the rules governing the practice
of law are not interpreted to
inappropriately narrow the delivery and evolution of services.
49. The following principles are intended to facilitate this delivery
and evolution, while advancing the core values of client auton-omy,
client protection and attorney professionalism.
1. The recommendations are consecutively
numbered for ease of reference. Citations to these recommendations elsewhere
in this volume shall be as follows:
Recommendations of the Conference on the Delivery
of Legal Services to Low-Income Persons, 67 Fordham L. Rev. 1751, Recommendation
___, at ___ (1999) [hereinafter
Recommendations].
RECOMMENDATIONS 67 FORDHAM LAW REVIEW 1775 (1999)
50. These principles are drafted to facilitate use of these method-ologies in the non-market context, but may apply universally.
51. The legal profession has a responsibility to facilitate access to
justice; therefore, the Model Rules of Professional Conduct
should be interpreted to encourage use and expansion of re-sponsible
modes of representation that increase such access.
52. There should not be two systems of justice, one for the poor and
one for those with resources. Ethics provisions applied to
limited legal assistance must not be based on the ability or in-ability
to pay for that assistance.
53. In crafting a delivery system, it is critical to establish criteria
that clearly and objectively determine which clients receive
which level of services and to establish who will make these decisions.
54. It is anticipated that lawyers and legal services programs may offer
a range of options to clients, including traditional "full-service"
representation. It is acknowledged that in certain cir-cumstances traditional
representation may be the best, and
perhaps only, successful mechanism for addressing a client's problem.
55. Principles of informed consent should be taken into account in adopting limited legal assistance methodologies.
56. Limited legal assistance methodologies implicate a range of considerations
regarding the definition and parameters of the
attorney-client relationship. 57. Methods of delivering legal services,
particularly experimental
methods such as limited legal assistance, must be evaluated on an on-going
basis.
59. There are three general categories of assistance that a lawyer or
legal services program may offer. These categories are: (1)
traditional, "full-service" representation; (2) limited legal
RECOMMENDATIONS 67 FORDHAM LAW REVIEW 1776 (1999)
assistance; and (3) general advice. These recommendations further define category two, limited legal assistance.
60. Within the Limited Legal Assistance category, there are two subdivisions:
(a) brief, specific advice, and (b) assistance re-quiring
a diagnostic interview.
(a) Brief, Specific Advice: An individual may interact with a
lawyer or legal services organization for the limited pur-pose
of obtaining brief, specific advice. "Brief, specific ad-vice" shall
be defined as answering a specific question or
limited set of related questions without follow up or explo-ration
by the legal services provider. In such circum-stances,
the client must be advised that the service is limited to brief advice
only.
The lawyer or legal services provider offering brief ad-vice is bound
by obligations of confidentiality, competence,
and the duty to avoid conflicts of interest appropriate to the context.
The lawyer or legal services
program has no duty to provide complete assistance with respect to
the individual's legal problem. Under the ethi-cal
rules governing conflicts of interest which apply to po-tential as
well as actual conflicts, the lawyer or legal
services program should not be restricted to the same de-gree as the
lawyer who renders more extensive representa-tion.
A lawyer or legal services organization that provides brief advice
must develop systems that prevent disclosure
of client confidences and must avoid the risk of divided loyalty by
terminating the communication as soon as it ap-pears
that there may be a conflict with a previous recipient of brief advice
services. A provider of a brief service that
also operates a full-service or diagnostic system must have in place
a mechanism to avoid actual conflicts of interest
between recipients of brief advice and those who receive assistance
under the full-services or diagnostic models.
Examples of brief, specific advice:
(i) Potential client calls legal services office and states, "My boyfriend registered his car in my name because he had
so many parking tickets. Now, he has more parking tickets under my name. Do I have to pay them?" The
answer is "yes."(ii) Consumer calls legal services office and states that she was turned down for credit and that her credit report is
incorrect, and asks what should she do. Legal worker advises her how to get a copy of her credit report, that
the report is free, and the steps she should take to get the credit reporting agency to revise the information.
RECOMMENDATIONS
67 FORDHAM LAW REVIEW 1777 (1999)
(b) Assistance Requiring a Diagnostic Interview: In all other
circumstances, the lawyer or legal services provider shall
conduct a diagnostic interview before providing legal assistance. That
diagnostic process shall elicit sufficient
facts to enable an appropriate decision as to the limited service(
s) to offer the client and for the client to make an
informed decision about how to proceed. An informed decision includes
knowledge of the circumstances under
which the recommended course of action might change and when additional
services might be necessary. Infor-mation
obtained in this process is protected as confidential regardless of
whether an attorney-client relationship re-sults
from the process. When the limited services identi-fied through an
appropriate diagnostic process have been
competently provided, the lawyer or legal services pro-gram has no
further obligation with respect to this client.
Example: Following a diagnostic interview, a legal services pro-gram
offers a survivor of domestic violence the following legal assistance
choices:
(i) Daily pro se clinic on how to get your own order of protection;
(ii) Website on how to get an order of protection;
(iii) Hard copy of pro se materials and a how-to
video;
(iv) Limited representation for the sole purpose of
obtaining a temporary restraining order; and
(v) Being placed on a waiting list for traditional, full-service
representation.
The diagnostic interview should elicit a variety of factors that would
assist the provider in determining the most appropriate choices for this
client. Depending on the
facts, some options would be excluded. For example, the provider should
determine the caller's ability to use pro
se materials. If the provider learns the client is unable to read and
write, the provider should eliminate options two
and three. Once the inappropriate choices have been eliminated, the
client can choose from the remaining
options.
61. Systems providing limited legal assistance must be internally and externally evaluated.
62. As a nation of laws, our courts serve as the centerpiece for the
peaceful resolution of conflicts. To continue in that role, the
courts must effectively serve the public, maximizing access and ease
of use. The courts have an affirmative obligation to help
litigants and advance limited service methodologies which in-
RECOMMENDATIONS 67 FORDHAM LAW REVIEW 1778 (1999)
crease access to the courts. Rules regarding the administration of justice,
rules governing the practice of law, and rules prohib-iting
the unauthorized practice of law should not be created, advanced, interpreted,
or applied so as to obstruct such efforts
to increase access. The courts and the legal profession should be encouraged
to explore innovative efforts to assist pro se
litigants.
64. The application of the above recommendations to current ethical
provisions, including standards of competence and dili-gence,
confidentiality, and conflicts of interest, needs concrete assessment
and evaluation, particularly with respect to the im-pact
on clients and the resolution of their legal problems or questions.