Accessing justice: Are pro se clinics a reasonable response to the lack of pro bono legal services and should law school clinics conduct them?

Fordham Law Review

Volumn 67, Issue 5, 1999, Pages 1879-1925

  Barry, Margaret Martin ^a  

^a NONE

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EID: 0033409468     PISSN: 0015704X     EISSN: None     Source Type: Journal    
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References (278)

1. Legal Services Corporation was created by the Legal Services Corporation Act of 1974. See Pub. L. No. 93-355, 88 Stat. 378 (1974) (codified as amended at 42 U.S.C. § 2996 (1994)); Ingrid V. Eagly, Community Education: Creating a New Vision of Legal Services Practice, 4 Clinical L. Rev. 433, 438 (1998). The Act created a national non-profit corporation to provide legal assistance to the poor. By 1980, LSC programs existed in almost every county in the United States. See Eagly, supra, at 438. While the Act contained significant restrictions on LSC activities, in 1981 and again in 1996, the program came under direct attack. See id. President Reagan's proposal to eliminate the program entirely met with sufficient congressional support in 1981 to significantly reduce LSC funding and increase restrictions on the types of advocacy LSC could entertain. See id. The Omnibus Consolidated Rescissions and Appropriations Act of 1996 cut funding by one-third and prohibited activities such as representing immigrants, advocating welfare reform, legislative work, and litigating class actions. Pub. L. No. 104-134, 110 Stat. 1321 (codified as amended at 42 U.S.C. § 2996); see Eagly, supra, at 439. Under the 1996 Act, LSC programs could not even use private funds for such purposes. See Eagly, supra, at 440.
2. The Economic Opportunity Act of 1964 instituted the first federally supported legal services program for the poor. Pub. L. No. 88-452, 78 Stat. 508 (1964) (codified as amended at 42 U.S.C. § 2701 and repealed in 1981); see Eagley, supra note 1, at 436-37. Prior to 1964, there were about 150 legal aid societies in the United States employing 600 lawyers with a combined budget of $4 million. See id. at 437 n.16 (citing Gary Bellow, Legal Aid in the United States, 14 Clearinghouse Rev. 337, 337-38 (1980)). Within a few years of the Act's passage, that number increased to over 2500 lawyers with a budget of over $60 million. See id.
3. See Albert H. Cantril, American Bar Ass'n, Agenda for Access: The American People and Civil Justice: Final Report on the Implications of the Comprehensive Legal Needs Study 4-8 (1996); infra note 24 and accompanying text (discussing the Consortium on Legal Services and the Public). As one proponent of Reagan's agenda for LSC put it, "[t]he claim of indispensability on the part of an agency that by its own reckoning . . . serves only some 20 per cent of the 'needs' of its clientele has always struck me as excessive." Samuel Jan Brakel, Legal Services for the Poor in the Reagan Years, 68 A.B.A. J. 820, 820 (1982).
4. See Albert H. Cantril, American Bar Ass'n, Agenda for Access: The American People and Civil Justice: Final Report on the Implications of the Comprehensive Legal Needs Study 4-8 (1996); infra note 24 and accompanying text (discussing the Consortium on Legal Services and the Public). As one proponent of Reagan's agenda for LSC put it, "[t]he claim of indispensability on the part of an agency that by its own reckoning . . . serves only some 20 per cent of the 'needs' of its clientele has always struck me as excessive." Samuel Jan Brakel, Legal Services for the Poor in the Reagan Years, 68 A.B.A. J. 820, 820 (1982).
5. See, e.g., Eagly, supra note 1, at 440 ("With fewer resources to meet the needs of an increasing number of poor people, Legal Services has become overwhelmed with demands for assistance.").
6. See Stephen Elias, Nolo's Legal Word: Bias Against Pro Per Litigants: What It Is. How to Stop It. (last modified Apr. 4, 1997) 〈http://www.nolo.com/EDIT.ART/ Bias.html〉 (discussing the judicial hostility towards pro se litigants).
7. See John M. Greacen, "No Legal Advice from Court Personnel": What Does That Mean?, Judges J., Winter 1995, at 10, 10 (describing the current confusion regarding the definition of "legal advice"); see also Jona Goldschmidt, Legal Issues Surrounding Court Clerks' Assistance to the Public and Judicial Assistance to Pro Se Litigants 3-9 (1996) (analyzing what constitutes the "practice of law" by court clerks) (unpublished manuscript, on file with the Fordham Law Review).
8. See John M. Greacen, "No Legal Advice from Court Personnel": What Does That Mean?, Judges J., Winter 1995, at 10, 10 (describing the current confusion regarding the definition of "legal advice"); see also Jona Goldschmidt, Legal Issues Surrounding Court Clerks' Assistance to the Public and Judicial Assistance to Pro Se Litigants 3-9 (1996) (analyzing what constitutes the "practice of law" by court clerks) (unpublished manuscript, on file with the Fordham Law Review).
9. See Russell Engler, Out of Sight and Out of Line: The Need for Regulation of Lawyers' Negotiations with Unrepresented Poor Persons, 85 Cal. L. Rev. 79, 82 (1997) (discussing how provisions of the Model Code of Professional Responsibility and Model Rules of Professional Conduct "have been interpreted to prohibit lawyers from giving 'advice' to unrepresented party opponents").
10. Pro se litigants are occasionally assisted by judges, but there is no clear sense that judges are obliged or even permitted to bring such litigants up to speed on all or even most of their legal rights. Judges are concerned about their ethical obligation to avoid the appearance of impropriety. The test is "whether the conduct would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired." Model Code of Judicial Conduct for State Administrative Law Judges Canon 2 (1995). Jona Golschmidt points out: As any judge who has had a case in which one party was a pro se litigant and the adverse party was represented knows, the impartiality admonition is problematic because of the frequent need to assist the pro se litigant in the presentation of his or her case. Judges must balance their duty of impartiality to all parties with their duty to provide the constitutionally required "meaningful opportunity to be heard" to which all litigants are entitled. Goldschmidt, supra note 6, at 15.
11. As a student who participated in the University of Baltimore's pro se project observed: "Yes, they all knew they needed an attorney. Yes, they knew they couldn't represent themselves competently. Service of process alone was too confusing to comprehend. But self-representation was their only alternative, and the project was their last resort for legal advice." Judith M. Hamilton, Commentary: Pro Se Project: Triage for Domestic Courts, Battered and Bruised, Md. Fam. L. Monthly, Sept. 1995, at 3, 3.
12. Describing the New York City Housing Courts, Professor Russell Engler reports that in approximately 90% of the cases tenants are unrepresented. See Engler, supra note 7, at 107. He goes on to discuss similar statistics in housing courts in other jurisdictions, and in consumer and domestic relations courts. See id. at 115-30.
13. Elizabeth McCulloch is the Director of the University of Florida law school's Center for Governmental Responsibility, Social Policy Division. This Center was funded through the Florida Bar Foundation to do the Stremler Study. See Alexandra Bongard Stremler, University of Fla. College of Law, Florida Pro Se Dissolution Clinics: Representation for the Poor 1 (1994). Ms. McCulloch was a principal investigator for the study which recommended, among other things, that the population served by the Florida pro se clinics should be expanded. See id. at 99.
14. Elizabeth McCulloch is the Director of the University of Florida law school's Center for Governmental Responsibility, Social Policy Division. This Center was funded through the Florida Bar Foundation to do the Stremler Study. See Alexandra Bongard Stremler, University of Fla. College of Law, Florida Pro Se Dissolution Clinics: Representation for the Poor 1 (1994). Ms. McCulloch was a principal investigator for the study which recommended, among other things, that the population served by the Florida pro se clinics should be expanded. See id. at 99.
15. McCulloch suggests that viewing basic instruction in how to proceed pro se as empowering for the litigant is more of a justification for providing limited services than a reality. She observes that "the view that lawyers should involve poor people in the lawyer's tasks and train them in legal skills may more subtly devalue the accomplishments and strengths of poor people." Elizabeth McCulloch, Let Me Show You How: Pro Se Divorce Courses and Client Power, 48 Fla. L. Rev. 481, 491 (1996).
16. See id. at 508.
17. For an excellent illustration of just how exhaustive of time and energy it is to be poor, see Ruth M. Bond, Poor People's Money, Wash. City Paper, Feb. 21, 1992 at 16.
18. See Stephen Wexler, Practicing Law for Poor People, 79 Yale L.J. 1049, 1053 (1970).
19. See Eagly, supra note 1, at 443-46 (discussing Wexler, Gerald López, and Lucie White, and noting others who have encouraged an approach to poverty lawyering that focuses on preparing clients for collective, and presumably at least more sustaining, action).
20. See the survey of pro se projects, discussed infra Part II.
21. See McCulloch, supra note 13, at 496-98.
22. Cf. D.C. Ct. R. Ann. 40(c)(3) (specifying the considerations, such as the length of the trial, the number of exhibits, motions and witnesses, and the extent to which discovery might require court supervision, that go into placing a case on the rarified, and essentially unknown to pro se litigants, Domestic Relations I Calendar).
23. "Family law issues account for thirty-two percent of all requests for legal services among low-income persons throughout the United States." Jane C. Murphy, Access to Legal Remedies: The Crisis in Family Law, 8 BYU J. Pub. L. 123, 124 (1993).
24. Helen B. Kim, Note, Legal Education for the Pro Se Litigant: A Step Towards a Meaningful Right to be Heard, 96 Yale L.J. 1641, 1651 (1987).
25. This survey does not pretend to provide a complete report of all pro se projects. The idea is to provide a sense of the variety of approaches being taken.
26. FALC is one of three in-house litigation clinics at Catholic Law School. All three clinics are structurally under one umbrella organization called the Columbus Community Legal Services.
27. See Roy W. Reese & Carolyn A. Eldred, American Bar Ass'n, Legal Needs Among Low-Income and Moderate-Income Households: Summary of Findings from the Comprehensive Legal Needs Study 22 (1994). Low-income households are defined in the study as having an annual household income of up to 125% of the Federal poverty level, and moderate-income households were those with incomes above 125%, but below $60,000. See id. at 3; see also Cantril, supra note 3, at 10 (noting the same limited access to the justice system for low-income households). Attorney General Janet Reno reported an even lower participation, stating that over 80% of the legal needs of the poor and the working poor are not being met. See Janet Reno, Address Delivered at the Celebration of the Seventy-Fifth Anniversary of Women at Fordham Law School, 63 Fordham L. Rev. 5, 8 (1994).
28. See Roy W. Reese & Carolyn A. Eldred, American Bar Ass'n, Legal Needs Among Low-Income and Moderate-Income Households: Summary of Findings from the Comprehensive Legal Needs Study 22 (1994). Low-income households are defined in the study as having an annual household income of up to 125% of the Federal poverty level, and moderate-income households were those with incomes above 125%, but below $60,000. See id. at 3; see also Cantril, supra note 3, at 10 (noting the same limited access to the justice system for low-income households). Attorney General Janet Reno reported an even lower participation, stating that over 80% of the legal needs of the poor and the working poor are not being met. See Janet Reno, Address Delivered at the Celebration of the Seventy-Fifth Anniversary of Women at Fordham Law School, 63 Fordham L. Rev. 5, 8 (1994).
29. See Roy W. Reese & Carolyn A. Eldred, American Bar Ass'n, Legal Needs Among Low-Income and Moderate-Income Households: Summary of Findings from the Comprehensive Legal Needs Study 22 (1994). Low-income households are defined in the study as having an annual household income of up to 125% of the Federal poverty level, and moderate-income households were those with incomes above 125%, but below $60,000. See id. at 3; see also Cantril, supra note 3, at 10 (noting the same limited access to the justice system for low-income households). Attorney General Janet Reno reported an even lower participation, stating that over 80% of the legal needs of the poor and the working poor are not being met. See Janet Reno, Address Delivered at the Celebration of the Seventy-Fifth Anniversary of Women at Fordham Law School, 63 Fordham L. Rev. 5, 8 (1994).
30. See Cantrill, supra note 3, at 39.
31. See id. at 31.
32. See id. at 27.
33. Id. at 30. The private bar handled 16% of low-income legal problems, while legal service lawyers were only able to handle 5% of the problems. See id. at 27.
34. Id. at 30. The private bar handled 16% of low-income legal problems, while legal service lawyers were only able to handle 5% of the problems. See id. at 27.
35. See id. at 28-29.
36. See Bruce D. Sales et al., Is Self-Representation a Reasonable Alternative to Attorney Representation in Divorce Cases?, 37 St. Louis U. L.J. 553, 594 (1992).
37. See id. In addition to income, prior self-representation, age, and education were identified as factors contributing to the decision to proceed pro se. Approximately 90% of the pro se litigants were found to have a high school education or better. See id. at 597. Not inconsistently, a 1996 exit survey of persons leaving the Maricopa County court's Self-Service Center found that the median household income of the center's customers was between $25,000 to $40,000 and more than 60% were high school graduates with some college experience. See Self-Service Ctr., Superior Court Ariz. Maricopa County, Final Report for the State Justice Institute Award No. 94-12A-A-325, at 53 (1997).
38. See Cantril, supra note 3, at 15.
39. See id. at 12-13.
40. See Elliot M. Mincberg, The Pro Bono Heat is On, Legal Times, June 29, 1998, at S40.
41. The Model Rules of Professional Conduct specify that a lawyer should aspire to render at least 50 hours of pro bono service per year. Model Rules of Professional Conduct Rule 6.1 (1998); see also id. Rule 6.2 (stating that a lawyer should not avoid appointment by a tribunal to represent a person except in limited circumstances).
42. See Federal Judge Tells Bar's Pro Bono Leaders More Must Be Done to Represent the Poor, D.C. Bar Report, June-July 1998, at 2 (reporting on Judge David Tatel's speech at the annual meeting of the D.C. Bar's PART Program, the Bar's project for law firms interested in doing pro bono work). Judge Tatel reported that the legal needs of 75% of those who cannot afford representation remain unmet. See id.
43. See Federal Judge Tells Bar's Pro Bono Leaders More Must Be Done to Represent the Poor, D.C. Bar Report, June-July 1998, at 2 (reporting on Judge David Tatel's speech at the annual meeting of the D.C. Bar's PART Program, the Bar's project for law firms interested in doing pro bono work). Judge Tatel reported that the legal needs of 75% of those who cannot afford representation remain unmet. See id.
44. See id.
45. See Cantril, supra note 3, at 30.
46. See Kendra Emi Nitta, Note, An Ethical Evaluation of Mandatory Pro Bono, 29 Loy. L.A. L. Rev. 909, 920-21 (1996) (expressing disappointment in the outcry by members of the Nevada bar against mandatory pro bono).
47. See id. at 920 ("[M]andatory pro bono which designates the agencies that could receive service under pro bono requirements, violates the First Amendment right to be free from coerced association with ideas, causes, and conduct held by others . . . [and it] creates and supports a value system that implicates . . . freedom of speech and association.").
48. See id. at 920-21 (describing an argument that attorney services are property, and demanding that such service must be provided free constitutes an unjust taking).
49. See id. at 921 (describing an argument that mandatory pro bono service is a form of involuntary servitude). This argument has found little support. See id. (noting that "[n]umerous courts have rejected this Thirteenth Amendment argument primarily because mandatory pro bono does not impair attorneys' physical liberty").
50. See id. at 920-21; see also Debra Burke et al., Pro Bono Publico: Issues and Implications, 26 Loy. U. Chi. L.J. 61, 73-74 (1994) (noting that most courts would reject constitutional arguments against mandatory pro bono work); Jeannie Costello, Note, Who Has the Ear of the King? The Crisis in Legal Services, 35 N.Y.L. Sch. L. Rev. 655 (1990) (discussing constitutional issues the Court failed to address in Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296 (1989), and calling for the Court to provide the guidance courts need in order to compel attorneys to provide legal assistance to the poor).
51. See id. at 920-21; see also Debra Burke et al., Pro Bono Publico: Issues and Implications, 26 Loy. U. Chi. L.J. 61, 73-74 (1994) (noting that most courts would reject constitutional arguments against mandatory pro bono work); Jeannie Costello, Note, Who Has the Ear of the King? The Crisis in Legal Services, 35 N.Y.L. Sch. L. Rev. 655 (1990) (discussing constitutional issues the Court failed to address in Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296 (1989), and calling for the Court to provide the guidance courts need in order to compel attorneys to provide legal assistance to the poor).
52. See Model Rules of Professional Conduct Rules 6.1-6.2 (1998); Burke et al., supra note 43, at 63-72 (discussing several theories which oblige attorneys to provide service).
53. See Model Rules of Professional Conduct Rules 6.1-6.2 (1998); Burke et al., supra note 43, at 63-72 (discussing several theories which oblige attorneys to provide service).
54. Although the resources of a large firm suggest that the burden may be easier for them, at least one study has found to the contrary. See Burke et al., supra note 43, at 82-83 (reporting that "revenue per lawyer, costs per lawyer, profits per partner, and profits per lawyer were all negatively and significantly correlated with pro bono efforts").
55. Supporting his position that mandatory pro bono is inefficient, Roger Cramton describes the true cost to an international antitrust specialist assigned to a landlord/ tenant case as far beyond his normal cost per hour because his legal knowledge is not transferable to this situation. See B. George Ballman, Jr., Note, Amended Rule 6.1: Another Move Towards Mandatory Pro Bono? Is That What We Want?, 7 Geo. J. Legal Ethics 1139, 1166 (1994) (citing Roger C. Cramton, Mandatory Pro Bono, 19 Hofstra L. Rev. 1113, 1128 (1991)). But see Burke et al., supra note 43, at 74-76 (dismissing arguments that poverty law is a specialized field in which the average attorney may lack the necessary expertise by concluding that "some help by lawyers is probably better than no help by anyone"). The authors observe that many of the voluntary pro bono programs have a mentoring system to assist lawyers who are unfamiliar with the relevant area of practice. See id. at 75 n.87 (citing Mark E. Allen, Pro Bono Attorneys Do It For Free, Wash. St. B. News, Nov. 1991, at 21).
56. Supporting his position that mandatory pro bono is inefficient, Roger Cramton describes the true cost to an international antitrust specialist assigned to a landlord/ tenant case as far beyond his normal cost per hour because his legal knowledge is not transferable to this situation. See B. George Ballman, Jr., Note, Amended Rule 6.1: Another Move Towards Mandatory Pro Bono? Is That What We Want?, 7 Geo. J. Legal Ethics 1139, 1166 (1994) (citing Roger C. Cramton, Mandatory Pro Bono, 19 Hofstra L. Rev. 1113, 1128 (1991)). But see Burke et al., supra note 43, at 74-76 (dismissing arguments that poverty law is a specialized field in which the average attorney may lack the necessary expertise by concluding that "some help by lawyers is probably better than no help by anyone"). The authors observe that many of the voluntary pro bono programs have a mentoring system to assist lawyers who are unfamiliar with the relevant area of practice. See id. at 75 n.87 (citing Mark E. Allen, Pro Bono Attorneys Do It For Free, Wash. St. B. News, Nov. 1991, at 21).
57. Supporting his position that mandatory pro bono is inefficient, Roger Cramton describes the true cost to an international antitrust specialist assigned to a landlord/ tenant case as far beyond his normal cost per hour because his legal knowledge is not transferable to this situation. See B. George Ballman, Jr., Note, Amended Rule 6.1: Another Move Towards Mandatory Pro Bono? Is That What We Want?, 7 Geo. J. Legal Ethics 1139, 1166 (1994) (citing Roger C. Cramton, Mandatory Pro Bono, 19 Hofstra L. Rev. 1113, 1128 (1991)). But see Burke et al., supra note 43, at 74-76 (dismissing arguments that poverty law is a specialized field in which the average attorney may lack the necessary expertise by concluding that "some help by lawyers is probably better than no help by anyone"). The authors observe that many of the voluntary pro bono programs have a mentoring system to assist lawyers who are unfamiliar with the relevant area of practice. See id. at 75 n.87 (citing Mark E. Allen, Pro Bono Attorneys Do It For Free, Wash. St. B. News, Nov. 1991, at 21).
58. See Costello, supra note 43, at 674. The suggestion was made by Robert Gnaizda, a public interest law advocate, who speculated that such a tax would raise $1.2 billion compared to the then $300 million federal budget for legal services. See id.
59. Such creative responses are all the more poignant given the Supreme Court's recent ruling in Phillips v. Washington Legal Foundation, 118 S. Ct. 1925 (1998), which held that interest earned on client funds pooled in statewide accounts belongs to clients, not to the states. See id. at 1926. This interest, de minimus with regard to the individual accounts, creates significant funds (IOLTA) which are used to support legal service programs.
60. Such creative responses are all the more poignant given the Supreme Court's recent ruling in Phillips v. Washington Legal Foundation, 118 S. Ct. 1925 (1998), which held that interest earned on client funds pooled in statewide accounts belongs to clients, not to the states. See id. at 1926. This interest, de minimus with regard to the individual accounts, creates significant funds (IOLTA) which are used to support legal service programs.
61. The resources of our General Practice Clinic were tied up in just such a case. The attorneys handling the case were aggressive to the point of incivility, and the taking of endless depositions suggested absolutely no restraint with regard to time or money. See Interview with Professor Ellen Scully, Columbus School of Law, The Catholic University of America, in Washington, D.C. (Aug. 20, 1998) [hereinafter Scully Interview]. Costello cites Robert Gnaizda as observing that too many corporate lawyers are "trained to run the meter on corporate clients . . . and can't move quickly and cheaply enough to represent the poor." Costello, supra note 43, at 674 (quoting Jonathan Rowe, Lawyer's Public-Service Plan Takes the Stand, Christian Sci. Monitor, Dec. 4, 1989, at 13).
62. The most egregious cases are those in which attorneys are conscripted to handle death penalty defenses. See, e.g., Williams v. Collins, 16 F.3d 626, 637 (5th Cir. 1994) (denying defendant's petition for federal writ of habeas corpus); Joan M. Cheever, An Appointment in the Death House, Nat'l L.J., Nov. 14, 1994, at A16 (noting that the two court-appointed attorneys in Walter Key Williams's death penalty case failed to call any witnesses or introduce mitigating circumstances). Mr. Williams's trial lasted less than one and a half days; the sentencing phase lasted two hours. See id. 51. For example, Susan Hoffman runs the pro bono program for Crowell & Moring, one of the District of Columbia's largest law firms.
63. The most egregious cases are those in which attorneys are conscripted to handle death penalty defenses. See, e.g., Williams v. Collins, 16 F.3d 626, 637 (5th Cir. 1994) (denying defendant's petition for federal writ of habeas corpus); Joan M. Cheever, An Appointment in the Death House, Nat'l L.J., Nov. 14, 1994, at A16 (noting that the two court-appointed attorneys in Walter Key Williams's death penalty case failed to call any witnesses or introduce mitigating circumstances). Mr. Williams's trial lasted less than one and a half days; the sentencing phase lasted two hours. See id.
64. For example, Susan Hoffman runs the pro bono program for Crowell & Moring, one of the District of Columbia's largest law firms.
65. See Michael Millemann et al., Rethinking the Full-Service Legal Representational Model: A Maryland Experiment, 30 Clearinghouse Rev. 1178, 1183-85 (1997) (discussing three categories of legal problems: those lending themselves to mechanical resolution; those requiring limited legal discretion and judgement; and those requiring substantial legal discretion and judgement).
66. Some attorneys have provided various forms of the unbundled services similar to those provided in some pro se clinics for years. For example, attorneys may agree to a reduced fee, or simply bill fewer hours, when the client is willing to do the legwork on gathering factual information, filing, arranging for service and so on. The profession, however, is only beginning to take a serious look at unbundled services as a means of reaching under-served client populations. See Dianne Molvig, Unbundling Legal Services, Wis. Law., Sept. 1997, at 10, 10 (discussing the growing interest in unbundled legal services). Ms. Molvig notes that many lawyers are concerned that limited service might heighten the risk of malpractice suits, but she was able to find only one such case - a 1993 California case. See id. at 13; see also Murphy, supra note 20, at 131-34 (proposing systemic changes that would make fewer issues discretionary, and thus simplify the system for litigants). But see Forrest S. Mosten, Unbundling of Legal Services and the Family Lawyer, 28 Fam. L.Q. 421, 431 (1994) (finding the predictive value of this one case less encouraging). Professor Murphy suggests that more areas of domestic relations law should include presumptions such as those in the child support guidelines, thereby simplifying hearings and making them more accessible to pro se litigants. See Murphy, supra note 20, at 131-34. While simplifying the process is attractive, presumptions in areas such as custody can be dangerously simplistic. See, e.g., Margaret Martin Barry, The District of Columbia's Joint Custody Presumption: Misplaced Blame and Simplistic Solutions, 46 Cath. U. L. Rev. 767, 814-24 (1997) [hereinafter Barry, Misplaced Blame] (discussing the negative implications of the District of Columbia's joint custody presumption).
67. Some attorneys have provided various forms of the unbundled services similar to those provided in some pro se clinics for years. For example, attorneys may agree to a reduced fee, or simply bill fewer hours, when the client is willing to do the legwork on gathering factual information, filing, arranging for service and so on. The profession, however, is only beginning to take a serious look at unbundled services as a means of reaching under-served client populations. See Dianne Molvig, Unbundling Legal Services, Wis. Law., Sept. 1997, at 10, 10 (discussing the growing interest in unbundled legal services). Ms. Molvig notes that many lawyers are concerned that limited service might heighten the risk of malpractice suits, but she was able to find only one such case - a 1993 California case. See id. at 13; see also Murphy, supra note 20, at 131-34 (proposing systemic changes that would make fewer issues discretionary, and thus simplify the system for litigants). But see Forrest S. Mosten, Unbundling of Legal Services and the Family Lawyer, 28 Fam. L.Q. 421, 431 (1994) (finding the predictive value of this one case less encouraging). Professor Murphy suggests that more areas of domestic relations law should include presumptions such as those in the child support guidelines, thereby simplifying hearings and making them more accessible to pro se litigants. See Murphy, supra note 20, at 131-34. While simplifying the process is attractive, presumptions in areas such as custody can be dangerously simplistic. See, e.g., Margaret Martin Barry, The District of Columbia's Joint Custody Presumption: Misplaced Blame and Simplistic Solutions, 46 Cath. U. L. Rev. 767, 814-24 (1997) [hereinafter Barry, Misplaced Blame] (discussing the negative implications of the District of Columbia's joint custody presumption).
68. Some attorneys have provided various forms of the unbundled services similar to those provided in some pro se clinics for years. For example, attorneys may agree to a reduced fee, or simply bill fewer hours, when the client is willing to do the legwork on gathering factual information, filing, arranging for service and so on. The profession, however, is only beginning to take a serious look at unbundled services as a means of reaching under-served client populations. See Dianne Molvig, Unbundling Legal Services, Wis. Law., Sept. 1997, at 10, 10 (discussing the growing interest in unbundled legal services). Ms. Molvig notes that many lawyers are concerned that limited service might heighten the risk of malpractice suits, but she was able to find only one such case - a 1993 California case. See id. at 13; see also Murphy, supra note 20, at 131-34 (proposing systemic changes that would make fewer issues discretionary, and thus simplify the system for litigants). But see Forrest S. Mosten, Unbundling of Legal Services and the Family Lawyer, 28 Fam. L.Q. 421, 431 (1994) (finding the predictive value of this one case less encouraging). Professor Murphy suggests that more areas of domestic relations law should include presumptions such as those in the child support guidelines, thereby simplifying hearings and making them more accessible to pro se litigants. See Murphy, supra note 20, at 131-34. While simplifying the process is attractive, presumptions in areas such as custody can be dangerously simplistic. See, e.g., Margaret Martin Barry, The District of Columbia's Joint Custody Presumption: Misplaced Blame and Simplistic Solutions, 46 Cath. U. L. Rev. 767, 814-24 (1997) [hereinafter Barry, Misplaced Blame] (discussing the negative implications of the District of Columbia's joint custody presumption).
69. Some attorneys have provided various forms of the unbundled services similar to those provided in some pro se clinics for years. For example, attorneys may agree to a reduced fee, or simply bill fewer hours, when the client is willing to do the legwork on gathering factual information, filing, arranging for service and so on. The profession, however, is only beginning to take a serious look at unbundled services as a means of reaching under-served client populations. See Dianne Molvig, Unbundling Legal Services, Wis. Law., Sept. 1997, at 10, 10 (discussing the growing interest in unbundled legal services). Ms. Molvig notes that many lawyers are concerned that limited service might heighten the risk of malpractice suits, but she was able to find only one such case - a 1993 California case. See id. at 13; see also Murphy, supra note 20, at 131-34 (proposing systemic changes that would make fewer issues discretionary, and thus simplify the system for litigants). But see Forrest S. Mosten, Unbundling of Legal Services and the Family Lawyer, 28 Fam. L.Q. 421, 431 (1994) (finding the predictive value of this one case less encouraging). Professor Murphy suggests that more areas of domestic relations law should include presumptions such as those in the child support guidelines, thereby simplifying hearings and making them more accessible to pro se litigants. See Murphy, supra note 20, at 131-34. While simplifying the process is attractive, presumptions in areas such as custody can be dangerously simplistic. See, e.g., Margaret Martin Barry, The District of Columbia's Joint Custody Presumption: Misplaced Blame and Simplistic Solutions, 46 Cath. U. L. Rev. 767, 814-24 (1997) [hereinafter Barry, Misplaced Blame] (discussing the negative implications of the District of Columbia's joint custody presumption).
70. For example, the District of Columbia Bar Public Services Activities Corporation requires participants to sign a "Pro Se Agreement," and the Harriet Buhai Center for Family Law requires participants to sign a "Pro Per Representation Retainer." Both forms (on file with the author) clearly state that the participant is acting as her own attorney and is not represented by volunteers or employees of the respective programs.
71. I have often taken time after pro se clinics to answer questions raised by individuals after gaining some insight into the specifics of their situations. When complex issues have been raised, I have referred the individuals to counsel.
72. See Millemann et al., supra note 52, at 1182 (discussing the need for an interviewer who understands the law and elicits facts, evaluates people, and probes for hidden issues). Forrest Mosten cautions against clients who conclude that they should have been advised about rights and obligations that are ancillary to the problem presented. See Mosten, supra note 53, at 431-32. He adds that "[l]awyers who offer discrete task unbundling to pro se litigants do not presently have a safe harbor for incorrect or incomplete advice rendered due to the limited scope of employment." Id.
73. Jona Goldschmidt draws five definitions of the practice of law from state case law: the "requires the knowledge and application of legal principles test" (Oklahoma and Illinois); the "activities lawyers have traditionally performed test" (Arizona); the "service incidental to the principle business test" (Michigan and Arkansas); the "knowledge beyond the average citizen test" (New Mexico); and the "balancing of interests test" (Colorado). See Goldschmidt, supra note 6, at 3-6; see also Greacen, supra note 6, at 10-11 (arguing that the phrase "legal advice" has no inherent meaning).
74. See Greacen, supra note 6, at 12.
75. See id. at 10-11 (providing examples of how difficult the concept is to apply in the context of questions posed to deputy court clerks). Michael Millemann finds that maintaining the distinction between legal information and advice can sometimes be impossible and argues that it would be fairer and more efficient for courts to "accept the principle that trained nonlawyers may give limited, simple legal advice, and attorneys, more substantial legal judgements." See Millemann et al., supra note 52, at 1187-88.
76. Goldschmidt, supra note 6, at 14 (discussing Model Code of Judicial Conduct Canon 2 (1990)).
77. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 433 (1982); Little v. Streater, 452 U.S. 1, 6 (1981); Armstrong v. Manzo, 380 U.S. 545, 552 (1965).
78. As Stremler and Shenan point out, the Florida Supreme Court, possibly acknowledging its responsibility to facilitate access to judicial relief, developed simplified forms in response to its ruling in Florida Bar v. Furman. 376 So. 2d 387 (Fla. 1979). The court had found in Furman that a legal secretary's preparation of paperwork for pro se litigants ran afoul of the prohibition against the unauthorized practice of law. See id. at 382; Stremler, supra note 11, at 2. In the Stremler study, judges in several Florida counties were interviewed about their sense of obligation in dealing with pro se litigants. Of the four judges interviewed in Broward County, all discussed the ethical problems involved with judicial intervention and the difficulties that could arise if they became too involved in the proceedings. See id. at 60. One of the judges summed it up this way, "I'm trying to be an attorney for the husband, attorney for the wife, scribe for their paperwork, and the judge." Id. When there is no reasonable alternative, this is the logical role for the person who is tasked with assuring that justice is done to fill. As one of the judges interviewed in Dade County pointed out: I also want to make sure of the fact that I'm satisfied that the pro se litigant has had a full and fair opportunity and is not being forced into an adverse settlement. I don't know if I could advise her/him but when I see, for example, a woman with minor children of the marriage is waiving her alimony and support, unemployed, husband earning money, no, I'm not going to approve that. Id. at 64. That is not a bad policy regardless of whether the parties are represented or not. As a Lake County judge commented, "I think it's our job to see that what's right is done." Id. at 70.
79. See Goldschmidt, supra note 6, at 15 (discussing Canon 3).
80. Even the litigant who does not have to contend with attorneys must miss work, get child care, and get to and from the courthouse. See Robert B. Yegge, Divorce Litigants Without Lawyers, 28 Fam. L.Q. 407, 417-18 (1994) (discussing the need for courts to reduce economic barriers).
81. See Sales et al., supra note 30, at 594 n.82.
82. A study sponsored by the ABA Standing Committee on the Delivery of Legal Services showed that in 1990, one or both parties in approximately 90% of divorce cases in Maricopa County represented themselves. In 52% of these cases, both parties represented themselves. See Sales et al., supra note 30, at 594 n.82; Standing Comm. on the Delivery of Legal Servs., American Bar Ass'n, Responding to the Needs of the Self-Represented Divorce Litigant 7 (1994).
83. A study sponsored by the ABA Standing Committee on the Delivery of Legal Services showed that in 1990, one or both parties in approximately 90% of divorce cases in Maricopa County represented themselves. In 52% of these cases, both parties represented themselves. See Sales et al., supra note 30, at 594 n.82; Standing Comm. on the Delivery of Legal Servs., American Bar Ass'n, Responding to the Needs of the Self-Represented Divorce Litigant 7 (1994).
84. Before the system was employed, over half of Maricopa County's pro se litigants had problems with following court procedures. A study conducted in 1993 showed that 19% of pro se litigants had problems completing necessary forms and 23% needed help in understanding court procedure. See Sales et al., supra note 30, at 569. Sales found that half of the pro se litigants' questions go unresolved while other litigants seek assistance through paralegals, self-help manuals, lawyers, and court personnel. See id. at 570-71. Even though many of these pro se litigants had substantial education - over 50% had some college education - they had trouble understanding procedures. See id. at 563 n.51, 570 (noting that even though litigants' understanding of the legal system rose with education level, those with a college education still had trouble understanding procedures).
85. Arizona does not have an unauthorized practice of law statute. Thus, a plethora of legal advisors service litigants. The court's paralegal was constrained by the Arizona Judicial Ethics Advisory Committee's opinion on clerical assistance with form completion. The opinion states: Clerks of the court . . . must be careful not to advise the public as to its legal rights and responsibilities. Careful attention must be given to avoid the unauthorized practice of law. However, this does not mean that clerks of the court may not assist the public in the routine filling out of forms. . . . the result would be a judiciary that is only accessible to those individuals able to afford counsel. Clearly, such an effect would be not desirable or constitutional. See Goldschmidt, supra note 6, at 8-9 (quoting Arizona Judicial Ethics Advisory Comm., Op. 5 (1988)).
86. See Telephone Interview with Robert James, Assistant Administrator of Maricopa County Superior Court, Ariz. (Aug. 4, 1998) [hereinafter James Interview, Aug. 4, 1998]. James stressed that it was very important to draw a line between procedural information and legal advice. Court staff could not come close to engaging in the unauthorized practice of law. See id. 70.
87. See Telephone Interview with Robert James, Assistant Administrator of Maricopa County Superior Court, Ariz. (June 25, 1998) [hereinafter James Interview, June 25, 1998].
88. The Self Service Center has an active inventory of 430 documents. Id.; see also American Bar Ass'n, Innovative Programs to Help People of Modest Means Obtain Legal Help (visited Nov. 5, 1998) 〈http://www.abanet.org/legalserv/modesthelp.html〉 [hereinafter Innovative Programs] (identifying bar-sponsored programs, lawyer referral services, military sponsored programs, non-profit initiatives, court-based projects, and individual efforts that are dedicated to providing legal assistance or advice); Standing Comm. on the Delivery of Legal Services, American Bar Ass'n, 1996 Nominations for the Louis M. Brown Award for Legal Access: Profiles of Moderate Income Delivery Programs 16 [hereinafter Award for Legal Access] (discussing the award granted to Maricopa County's Self-Service Center program).
89. According to Robert James, in addition to those who come into the Self-Service Center each day, many more visit its website and utilize its phone service. See James Interview, Aug. 4, 1998, supra note 69.
90. See Award for Legal Access, supra note 71, at 17.
91. See James Interview, Aug. 4, 1998, supra note 69.
92. See id.
93. FLAP operates in one of the two Self-Service Centers. It is a legal services project, staffed by attorneys and paralegals who provide on-site unbundled services, such as document preparation and procedural advice. See Letter from Anne Endress Skove, Staff Attorney, National Center for State Courts: Institute for Court Management, to Jennifer Wright, Clerk's Office, U.S. Supreme Court (June 10, 1998) (on file with the Fordham Law Review). FLAP is also staffed by volunteer attorneys from the Lawyers Referral Service and the local community's Volunteer Lawyers Program. See id.
94. Jennings, Strouss & Salmon Legal Clinic operates out of a grocery store located in a low income area of Phoenix. Volunteer attorneys from the firm assist residents on Tuesday nights and Saturday mornings. Appointments are made in advance. The clinic serves over 1000 clients who pay only their costs. The firm has been successful in having services donated or absorbing the costs themselves for those who cannot afford them. See Innovative Programs, supra note 71.
95. Kenneth W. Burford's South Phoenix Law Fair serves low-income individuals in Maricopa County who are largely non-English speaking residents. Lawyers assisted by paralegals answer questions about family law in the local community center. Residents are billed on a sliding scale, two percent of the person's gross monthly income. See Award for Legal Access, supra note 71, at 15.
96. The program directs litigants to the Division of Child Support Enforcement of the Arizona Department of Economic Security, and provides information on alternative dispute resolution. Other community services that may help with preparation for court proceedings, counseling, and financial assistance are also referenced. See James Interview, June 25, 1998, supra note 70.
97. See Innovative Programs, supra note 71.
98. See id.
99. Other automated systems nationally do not have this capability. The system completes and prints a forcible detainer form and all the forms necessary to file for divorce and calculate child support payments. See id. 83. See Telephone Interview with Agnes Felton, Court Service Director, Phoenix, Ariz. (July 1, 1997) [hereinafter Felton Interview].
100. Consumers purchase blank forms at prices ranging from $5-$20. See id. 85. See id.; James Interview, Aug. 4, 1998, supra note 69.
101. See Stremler, supra note 11, at 1.
102. See id. at 19-45 (describing program format). Clinic participants are eligible to participate in the program if they qualify for legal assistance, which is defined as 125% above the federal poverty line. See id. at 1.
103. See id. at 1, 57-78 (discussing the "reactions from the bench" in each jurisdiction).
104. See id. at 57-78. In the Broward County Family Division - exclusively a family court since 1993 - judges were concerned that pro se litigants required extra staff time because litigants would appear without proper paperwork or staff would have to calculate child support and type up final judgment forms. Similar concerns were exhibited in Dade County which also has a family division. Lake County does not have a family division, however, the judges interviewed stressed that paperwork was a problem and litigants with clinical assistance were better prepared than those using "divorce kits." In Pinellas County, 75% of litigants filed pro se and tied up the docket because they are constantly seeking legal advice that the court is not allowed to give. Clerks in Orange and Osceola Counties work closely with the clinic and therefore paperwork is generally consistent.
105. See id. at 60. Judges in Orange and Osceola Counties found that documents prepared by paralegals rated poorly in comparison to paperwork filed by pro se litigants who were trained by the clinic. See id. at 74.
106. See id.
107. See id. at 19-45.
108. Pro se clinics may refer to clinic participants as "clients." Some program directors deny that an attorney-client relationship exists because attorneys instruct participants on how to file documents on their own and how to represent themselves in court. See id. at 52. Only three out of the six counties acknowledge such a relationship. Clinics in Lake, Osceola, and Broward Counties will represent participants if their case becomes too complicated or contested. See id. at 20, 30, 41. In Broward County, representation is limited to contested divorce cases involving abuse or custody. See id.
109. In Lake, Orange, Osceola, and Pinellas Counties, clinics accept dissolution cases that do and do not involve children. See id.
110. See id. at 27.
111. See id. at 37-38.
112. This supplemental assistance is provided through Broward County's "Pro Se Unit." Attorneys staff the Unit, but do not represent litigants in court and must inform litigants that they will not be involved in their individual case. If a participant's case becomes too complicated for the pro se clinic, full representation is provided by a Legal Aid staff attorney. See id. at 23. Florida has a web site that provides information to Florida residents on programs that provide access to legal resources or assistance. See Southeast Fla. Library Info. Network, SEFLIN Free-Net (visited Oct. 29, 1998) 〈http://www.seflin.org/〉 [hereinafter SEFLIN].
113. See Stremler, supra note 11, at 31.
114. See id. at 42.
115. See id. at 48.
116. See id. at 47.
117. Some judges found that although they wanted to give pro se litigants some "slack" in following court rules, they remind themselves they must remain neutral and keep both parties on common ground. One judge stated that "I usually just stop the hearing and say, look I haven't been an advocate for fifteen years now, and it's improper for me to do so." Id. at 60.
118. See id. at 73.
119. See id. at 57-78.
120. See McCulloch, supra note 13, at 483 (discussing the 1993 Study of Florida's pro se dissolution clinics conducted by the Center for Governmental Responsibility and funded by the Florida Bar Foundation).
121. See Stremler, supra note 11, at 80-92. Notably, participants rated clinic clarity an 8.9 out of a possible 10, with 10 being very clear. All clinic participants who received a final judgment from the court were asked about their overall satisfaction with the judicial system; 84% of those interviewed were "very satisfied." See McCulloch, supra note 10, at 488-89. McCulloch suggests that although clients may benefit from the learning experience itself, they may not choose to represent themselves in the future. See id. at 489. For example, the 1993 study indicates that nine out of nineteen clients who represented themselves through the final hearing of their case would not represent themselves in the future. See id. at 488; Stremler, supra note 11, at 89 tbl.14.
122. See Stremler, supra note 11, at 9. An average of 15 participants attend each clinic. See id. at 17 tbl.7. Although program directors would like to accommodate as many persons as possible, they are hesitant about increasing the number of participants per clinic because they feel the quality of instruction would decrease with larger class sizes. See id. at 52.
123. The court provides office space and utilities and the Legal Aid Society staffs the project. The project services both the litigant and the court because litigants must have their documents approved by a staff member before they may file with the Clerk's Office. Thus, all documents filed with the court conform to court rules. See Telephone Interview with Maria Santamarina, Senior Staff Attorney/Assistant Director, Legal Aid Society and Adjunct Professor at the St. Thomas School of Law (July 17, 1998).
124. The proceeds fund the Self-Help Project. Litigants can pick up any of the four manuals at the courthouse or request manuals by mail. There is an additional five dollar charge for mailing. Manuals instruct litigants on the following proceedings: dissolution of marriage, post judgment/modification and enforcement, child support and visitation, and name change. A flow chart guides litigants on how to fill out forms. See id.; Automated Hotline for the Family Court Self-Help Project (305.372.7842) [hereinafter Automated Hotline].
125. See Telephone Interview with Maria Santamarina, supra note 108. The project does not give clients legal advice. The Legal Aid Self-Help Project currently has an Internet cite where Dade County residents can access information on the services available to them. See SEFLIN, supra note 97.
126. To obtain assistance, litigants must come to the office with their forms prepared and the Project recommends litigants bring necessary filing fees. See Automated Hotline, supra note 109.
127. The workshop consists of one class per week and 100 hours of clinical work on the Self-Help Project. Law students do not have to be certified in order to participate in the project because they do not appear in court. Litigants represent themselves. See M.D. Fla. R. 2.05 (1998); supra note 102.
128. Supervising attorneys must conform to the Florida Rules of Court Service. See M.D. Fla. R. 2.05. All students receive credit for their participation, and are either graded or receive a pass/fail depending on their university. See Electronic Mail from Laurence M. Rose, Professor of Law and Director, Litigations Skills Program, University of Miami School of Law, Fla., to Margaret Martin Barry, author (Nov. 24, 1998) (on file with author).
129. See SEFLIN, supra note 97. Litigants can obtain a pamphlet, available at the courthouse, for information on the forms available at the Self-Help Center. See id. 115. See Innovative Programs, supra note 71.
130. An example of an individual's response to the need for pro se assistance came from Sarasota resident Catherine Wannamaker. Motivated by her struggle to obtain a divorce pro se, Ms. Wannamaker, started a "Considering Divorce Seminar" through the Women's Resource Center. She obtained her Legal Assistant National Certification and conducts two-hour seminars, once a month, for approximately 15 women per seminar. The seminars prepare participants to proceed with no-fault divorces. See Catherine A. Wannamaker, Suddenly Alone: How to Prepare and Survive (1998).
131. See Legal Servs. of Eastern Mo., Inc., 1995 Louis M. Brown Award for Legal Access, Nomination Information Sheet 1 (1995) (on file with the Fordham Law Review). LSEM serves 19,000 people annually who are predominately uneducated and unemployed. See id. at 4. Unemployment resulting from closing industrial plants causes the population of underprivileged people throughout Eastern Missouri to rise annually. See id. LSEM does not break down the kind of services it provides.
132. Clients must be below a certain income to be eligible for the program. See Telephone Interview with Steve Glenn, Paralegal, Director of LSEM Pro Se Divorce Clinic, Mo. (July 20, 1998) [hereinafter Glenn Interview].
133. All the practice forms in the manual are copies of standard court approved forms. There is a ten dollar charge for the manual which goes toward funding the program. See id.; see also Legal Servs. of Eastern Mo., Pro Se Divorce Clinic Manual (1994) (listing a general overview and instructions for filling out court forms when filing for a divorce).
134. See Glenn Interview, supra note 118.
135. Law students volunteer from the Washington University School of Law and St. Louis University School of Law throughout the school year and over the summer. Students need not be certified to appear in court because clients represent themselves. The director and law student volunteers only answer "how to" questions; they do not answer questions like "what should I do?" See id.
136. See id.
137. See Award for Legal Access, supra note 71, at 5. Between 10 and 12 attorneys work in LSEM offices. See Legal Servs. of Eastern Mo., Inc., About Legal Services of Eastern Missouri, Inc. (visited Oct. 29, 1998) 〈http://www.lsem.org/about.html〉.
138. The clinic was named after Reverend C.A.W. Clark who has been Good Street's reverend since 1950. The free day program was established in November 1989. See Texas Lawyers and Students Band Together to Promote Public Interest Services, 53 Tex. B.J. 170, 170 (1990) [hereinafter Texas Lawyers]; Telephone Interview with Barbara Steele, clinic founder (Aug. 26, 1998).
139. See Texas Lawyers, supra note 124, at 170.
140. See id.
141. See Telephone Interview with Richard M. Alderman, Associate Dean at the University of Houston Law Center, Dwight Olds Chair-In-Law (July 1, 1997) [hereinafter Alderman Interview].
142. Approximately 500 people attend each session. There are no income eligibility requirements. Participants register for classes on any of the following subjects: consumer law, wills, family and criminal matters, business, landlord/tenant, and credit and debt collection. See Alderman Interview, supra note 127; see also Yegge, supra note 64, at 414 (describing the People's Law School as a model that "has been successfully implemented in many jurisdictions").
143. See Tara Shockley, Giving Back: Thousands of Volunteers Help the Houston Bar Association Promote Professionalism Through Community Service, Hous. Law., Jan.-Feb. 1995, at 46, 47. The Houston Bar Association developed a "Speakers Bureau" consisting of volunteer attorneys who are "willing to speak on legal topics to schools, churches and other community groups." Id. at 47. The attorneys also volunteer for The People's Law School. See id.
144. See Tara Shockley, Giving Back: Thousands of Volunteers Help the Houston Bar Association Promote Professionalism Through Community Service, Hous. Law., Jan.-Feb. 1995, at 46, 47. The Houston Bar Association developed a "Speakers Bureau" consisting of volunteer attorneys who are "willing to speak on legal topics to schools, churches and other community groups." Id. at 47. The attorneys also volunteer for The People's Law School. See id.
145. Similarly, the South Suburban Bar Association sponsors a People's Law School program initiated by an Illinois judge. The People's Law School, located in the local Marham courthouse basement, is open on Wednesday afternoons. See Halt: "White Hat" Awards, Legal Reformer, Oct.-Dec. 1989, at 15, 15.
146. The text, "Know Your Rights," was written by Richard M. Alderman, Associate Dean at the University of Houston Law Center.
147. Alderman indicates that participants have favorable comments about the
148. See id.
149. Income eligibility is determined when residents contact the Hotline. See The Women's Law Ctr. of Md., Inc., The Women's Law Center of Maryland, Inc. (visited Oct. 29, 1998) 〈http://www.peoples-law.com/peoples/Resources/wlc.html〉 [hereinafter WLC website].
150. For example, a woman needing legal assistance can use the Hotline to access information on the divorce process in her jurisdiction and on whether to seek legal representation. See Murphy, supra note 20, at 128.
151. See Innovative Programs, supra note 71. The Hotline was a nominee for the Louis M. Brown Award for Legal Access in 1995. See Award for Legal Access, supra note 71, at 22.
152. See Innovative Programs, supra note 71.
153. All Maryland attorneys who volunteer their legal assistance are governed by Rule 5.5 of the Maryland Rules of Professional Conduct. Md. Code Ann., Md. Rules, Rules of Professional Conduct Rule 5.5 (1998). Rule 5.5 states that "A lawyer shall not: (a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or (b) assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law." Id. Thus, clinic staff members who are not attorneys may not give legal advice. See also Md. Code Ann., Bus. Occ. & Prof. § 10-101 (Supp. 1997) (defining the "practice of law"). Similarly, law students who are not certified to appear in court cannot engage in the "practice of law" or give any kind of legal advice. See Md. Code Ann., Md. Rules, Rules Governing Admission to the Bar of Maryland Rule 16 (1998).
154. Volunteer family law practitioners give fifteen minutes of legal advice. See Murphy, supra note 20, at 128 n.21.
155. See WLC website, supra note 133.
156. See Telephone Interview with Katie Stringham, Assistant Director of the Women's Law Center of Maryland, Inc. (July 13, 1998). Students are from the Baltimore University School of Law and the University of Maryland School of Law.
157. See WLC website, supra note 133.
158. See id.
159. See Telephone Interview with Katie Stringham, supra note 140.
160. See Murphy, supra note 20, at 140.
161. Murphy describes clinic participants as "clients." The question remains, however, whether an attorney-client relationship exists when participants represent themselves in court.
162. The projects cost $18,000 per year, including the paralegal's salary and overhead. See id.
163. See id. at 137 n.66.
164. The Pro Se Divorce Project, the first of the Legal Aid Bureau programs, was established in 1974. The program accepts litigants if they meet income eligibility guidelines and their cases do not involve child support, custody or property disputes. See Telephone Interview with Rhonda Lipkin, Deputy Director of the Maryland Legal Aid Bureau (Aug. 27, 1998) [hereinafter Lipkin Interview].
165. After pleadings are completed, Legal Aid staff type pleadings for participants. The pleadings are then submitted to the court indicating that the Legal Aid Bureau helped the litigants in preparing the forms. See id. Such acknowledgment avoids criticism that the pleadings were "ghostwritten," and thus the participant gains the advantage of an attorney's advice and skill while being held to the less-stringent standard of a pro se litigant. See Kimberley D. Prochnau, Limited Services Representation 4 (1997) (unpublished manuscript, on file with the Fordham Law Review) (discussing court rulings that proscribe ghost writing under the theory that such pleadings allow the litigant to gain the benefit of strategic advice and skills while being held to a lesser standard as one who is proceeding pro se); cf. Murphy, supra note 20, at 142-43 (arguing that the current system disadvantages those unable to afford legal representation). This individual attention is important since many of the program participants are illiterate.
166. Legal Aid has a formal relationship with the circuit court whereby four magistrate judges hear ten or more cases from the Bureau at one time. Paralegals accompany litigants to the hearings for support. Approximately three days of the paralegal's time is spent with each participant, per case. See Lipkin Interview, supra note 148.
167. See id.
168. See Letter from Barbara Babb, Family Law Clinician, University of Baltimore School of Law, to Margaret Martin Barry, author (July 6, 1998) (on file with author). The administrative transfer took effect on July 1, 1998. Under the new structure, the project will be funded by the City Circuit Court and run by the Legal Aid Bureau. See id. The project initially served residents of Baltimore City, Anne Arundel, Baltimore, and Montgomery Counties. The project was funded with grants of $120,000 per year, $30,000 per jurisdiction. The project continues in all jurisdictions, but administration varies among jurisdiction. See id.; Unified Family Courts and the A.B.A., Catalyst, Aug. 4, 1997, at 6.
169. See Millemann et al., supra note 52, at 1182. Students could give legal information to any person who requested it provided they filled out a waiver form indicating that they understood they would not receive legal advice. Students could offer legal advice to indigent clients, however, pursuant to Maryland's student practice rule. Under the state's student practice rule, supervised law students have the status of members of the bar. See Md. Code Ann., Md. Rules, Rules Governing Admission to the Bar of Maryland Rule 16 (1998). Law Students are required to be familiar with both the Maryland Rules of Professional Conduct and the relevant Maryland Rules of Procedure. The court, in particular, expects them to be sensitive to Maryland's version of Rule 11. See id. Rule 16(b)(2); Millemann et al., supra note 52, at 1188.
170. Barbara Babb described the Baltimore County program, in which a student worked with 10 to 15 pro se litigants per day as a more manageable learning experience than the City program in which a student could handle up to 25 of the many people waiting for service. See Telephone Interview with Barbara Babb, Family Law Clinician, University of Baltimore School of Law (Aug. 26, 1998).
171. See generally Millemann et al., supra note 52, at 1186 (describing the Maryland projects and arguing that lawyers and legal service programs should make more use of these limited representation models); Murphy, supra note 20, at 139-42 (discussing the different approaches of various pro se programs).
172. See Family Law Facilitator Act, Cal. Fam. Code §§ 10002, 10004 (West 1998); see also Yegge, supra note 64, at 413 (discussing Washington's facilitator pilot project, through which the state provided referral and information, but not advice, to pro se litigants seeking assistance at the courthouse).
173. The Act was intended to further the state's interest in efficiently resolving issues such as child support enforcement, spousal support, or maintenance of health insurance. See Cal. Fam. Code § 10001. The Act provides that a facilitator will provide parents with educational information regarding child support enforcement or modification, provide assistance in completing the necessary court forms, prepare support schedules based on California's statutory guidelines and provide referrals. See id. § 10004. Each court, however, may supplement a facilitator's duties. See id. § 10005; cf. Ventura, Cal., Mun. Ct. Rule 9.20 (listing the scope of services provided by the family law facilitator).
174. See Telephone Interview with Gay Conroy, Family Law Facilitator, Ventura County Superior and Municipal Courts, (June 24, 1998). Conroy stressed that facilitators do not have an attorney-client relationship with litigants. Facilitators inform litigants when they have met with the opposing party to their dispute. State facilitators have met regularly to discuss the Rules of Professional Responsibility that will govern their new office. Ventura County was the third out of fifty-eight counties to appoint a facilitator. Some positions remain vacant. Conroy was appointed in January 1997.
175. See Ventura County Superior and Municipal Courts, Suggestions to Help You Represent Yourself in Family Court (1998).
176. See Telephone Interview with Peggy Yost, Manager, Court Division, Ventura County Superior-Municipal Court, (June 18, 1998).
177. The Family Law Facilitator Act provides that the Department of Social Services may seek federal "Title IV-D" funding for services provided by the family law facilitator. See Cal. Fam. Code § 10005(7); Jeanne Caughell, Development, Implementation and Evaluation of a Family Law Self-Help Clinic 9 (1997). Specifically, the Act provides that each county's facilitator establish programs that are both cost-effective and "assist underepresented and financially disadvantaged litigants in gaining meaningful access to family court." See Cal. Fam. Code § 10005(7)(b)(2). The facilitator in Ventura County serves as program director. See Family Law Facilitator Job Description (on file with Ventura County Superior and Municipal Courts).
178. See Cal. Family Code, Division 20, Part 1; Caughell, supra note 161, at 7.
179. The clinic has between one to three law student interns during the school year and also throughout the summer. See Letter from Gay Conroy, Family Law Facilitator, Ventura County Superior-Municipal Court, to Margaret Martin Barry, author (July 16, 1998) (on file with author).
180. The binders include: "Application for Fee Waiver, Petition for Dissolution, Legal Separation and Nullity, Complaint to Establish Parental Relationship, Petition for Summary Dissolution, Responsive Pleadings, Orders to Show Cause, Domestic Violence and Harassment Restraining Orders, Request to Enter Default and Judgment forms." Caughell, supra note 161, at 8.
181. See id.
182. See Innovative Programs, supra note 71; Los Angeles County Bar Ass'n, Barristers Pro Bono Involvement Guide (visited July 13, 1998) 〈http://www.lacba.org/sections/barristers/probono.html〉.
183. Only victims who do not have an action currently pending are eligible for the clinic. The clinic, however, is open to the public, regardless of their income. There is a $20 fee, which is waived or reduced depending on the victim's individual situation. For example, the fee is waived for anyone coming from a shelter, and clients on public assistance are charged $10. All proceeds go back into running the clinic. See Telephone Interview with Katie Kalderon, law student intern at Southwestern University School of Law (July 15, 1998).
184. Two law students from the Southwestern University School of Law are currently working for the clinic. Law students do not provide legal advice; they provide procedural advice under supervision of an attorney. See id. The Domestic Violence Project is also an approved placement for students interning from the University of Southern California Law Center. The students are not allowed to provide legal advice, but they may assist clients individually with procedural questions on obtaining temporary restraining orders. See id.
185. See Innovative Programs, supra note 71. The clinic saved the Superior Court an estimated $559,000 in staff time because litigants were well-prepared and few demanded staff assistance. See id.; see also infra notes 206-13 and accompanying text (discussing the Domestic Violence Intake Center, Superior Court of the District of Columbia)
186. Ninety percent of the Center's clients are eligible for court fee waivers within the meaning of California Rule of Court 988. See Elissa Lenkin et al., Harriet Buhai Ctr. for Family Law, Assisting the Limited Income Client in Family Law Matters 4-1 (4th ed. 1992).
187. See Innovative Programs, supra note 71. Volunteers instruct groups of clients with similar legal problems or provide individual training. Volunteers also refer clients to other pro bono attorneys that are willing to provide representation. See id. 172. See Lenkin et al., supra note 170, at 2-3.
188. See id.
189. See id.
190. See Telephone Interview with Karen A. Lash, Associate Dean of the University of Southern California Law Center, Cal. (July 13, 1998). The law school does not have a formal relationship with the Harriet Buhai Center for Family Law. It is, however, an approved placement where students have the opportunity to educate clients on procedure in a group presentation format. The Los Angeles County Bar Association's Domestic Violence Project is a second program where students work in a similar format.
191. Law students must be certified to appear in court. Because clients represent themselves, however, students may give procedural instruction on "how to" prepare court documents in preparation for court. See E.D. Cal. R. 83-181(d)(4)(H)(7) (1998).
192. See Lenkin et al., supra note 170, at 2-3. Common disputes involve children or financial support. See id.
193. Compare Florida's Dade and Broward Clinics, which use a similar video for trial preparation. See Center for Governmental Responsibility, University of Fla., College of Law, Fla. Pro Se Dissolution Clinics: Representation for the Poor 20-45 (1994). Similarly, the Alexandria Bar Association designed a video tape entitled Your Day in Court: Representing Yourself in the General District Court in Virginia. The video provides information to pro se litigants who are filing in Virginia's General District Courts. The video instructs litigants on how to complete the most commonly used forms and pleadings necessary to maintain or defend from a civil suit in court. See Award for Legal Access, supra note 71, at 19.
194. Low income residents are billed on a sliding scale. Eligibility is determined during an intake interview. See Telephone Interview with Julia Arno, Executive Director, Family Law Center (July 20, 1998).
195. See Letter from Bonnie Rose Hough, Executive Director, Family Law Center, San Rafael, to Forrest Mosten (Nov. 23, 1993) (part of a report on the history and funding information for the Family Law Center, on file with the author).
196. See id. at 2-3.
197. See id.
198. See Innovative Programs, supra note 71, at 3. Currently, two law student volunteers work under the supervision of an attorney, giving procedural advice. One of the students is certified to appear in court, but this is not required because clients represent themselves. Students receive law school credit for their participation. See supra note 121.
199. See Telephone Interview with Greg Ireland, Court Administrator (July 9, 1998).
200. The clinic serves any litigant, regardless of their income. Sixty percent of the litigants who have used the clinic since January, however, report an average household income of less than $15,000, and 40% report an average income between $20,000 to $45,000. These figures do not take into account the number of people per household. Seventy percent of the litigants have at least one child. See id. 186. See id. 187. See id. No law students are involved with the clinic. See id. 188. See id. 189. See Graecen, supra note 6, at 10; Telephone Interview with Fern Goodman, Office of the General Counsel, Administrative Office of the Courts (July 7, 1998).
201. See Telephone Interview with Fern Goodman, supra note 189.
202. See State Bar v. Guardian Abstract & Title Co., 575 P.2d 943, 949 (N.M. 1978) (discussing a "common knowledge" test that the court uses to determine whether a lay man engages in the unauthorized practice of law). The court limited the unauthorized practice of law to situations where laymen attempt to resolve complex legal issues resolvable by only a "trained legal mind." Id, at 948.
203. The Capital District is made up the following counties: Albany, Columbia, Greene, Rensselaer, Saratoga, Schenectady, and Washington. See Robert L. Haig & Anthony P. Cassino, Pro Bono: A Proud Tradition, N.Y. St. B.J., May-June 1997, at 38, 41.
204. See id.
205. See id.
206. See id.
207. See id.
208. See id. The clinics receive funds from the Legal Services Corporation. See id.
209. See id.
210. Id.
211. See Judith S. Kaye & Jonathan Lippman, New York State Unified Court System, Family Justice Program Phase 2 (1998). A report on Family Justice Program Phase I was issued in April of 1997. See Judith S. Kaye & Jonathan Lippman, New York State Unified Court System, Family Justice Program (1997) [hereinafter Family Justice Program I].
212. See Judith S. Kaye & Jonathan Lippman, New York State Unified Court System, Family Justice Program Phase 2 (1998). A report on Family Justice Program Phase I was issued in April of 1997. See Judith S. Kaye & Jonathan Lippman, New York State Unified Court System, Family Justice Program (1997) [hereinafter Family Justice Program I].
213. Approximately 670,000 cases are filed annually in the family court. There are 2500 matters per judicial officer and based on the current rate of cases filed, numbers are projected to rise. Pro se litigants file a large number of these cases. See Family Justice Program I, supra note 200, at 2, 8.
214. The report concludes that the "rules provide the citizenry with a window into the process by which difficult decision affecting children and families are made . . . [new rules] provide safeguards that strike at the appropriate balance between the public's right to know and the privacy interests of the children and families who appear in court." Id. at 4.
215. See id. at 4-5. The pilots began in New York and Bronx County Family Courts in April 1998. Kings and Queens County will begin in Fall 1998, and Family Courts throughout New York State have pilots in place by the end of 1998. See id. at 11.
216. Family courts handle over 20 types of proceedings, including neglect, child support, paternity, termination of custody by reason of permanent neglect, juvenile delinquency, and person-in-need-of-supervision and family offenses. See id. at 1.
217. The four areas are Child Protective/Permanency Planning, Juvenile Delinquency, Domestic Violence/Custody, and the Support/Paternity Division. See id. at 9-10. The report concludes that specialized court staff will be better equipped to assist litigants. See id. at 6.
218. See id. at 12. Phase II is also expected to open communication between other courts and other participants in court proceedings such as the Legal Aid Society, Corporation Counsel, and the Permanent Justice Commission on Justice for Children. The Commission was established in 1988 to study problems affecting children in the court system. The Court of Appeals designated the Commission to administer the federally-funded State Court Improvement Project for the Court System. It will work especially closely with staff of the Child Protective/Permanency Division. See id. at 7,
219. In addition, the Family Court and Office of Child Support Enforcement are developing a computer system that will allow them to share access to records, which are currently only accessible in the Support Collection Unit. See id. at 29. Similar pilot projects are being implemented in New York's housing and criminal courts. See Judith S. Kaye & Jonathan Lippman, New York State Unified Court System, Criminal Justice Program 1 (1996); Judith S. Kaye & Jonathan Lippman, New York State Unified Court System, Housing Court Program: Breaking New Ground 18-20 (1997); Russell Engler, And Justice For All - Including the Unrepresented Poor: Revisiting the Roles of the Judges, Mediators and Clerks, 67 Fordham L. Rev. 1987, 2063-69 (1999) (examining New York City housing courts).
220. In addition, the Family Court and Office of Child Support Enforcement are developing a computer system that will allow them to share access to records, which are currently only accessible in the Support Collection Unit. See id. at 29. Similar pilot projects are being implemented in New York's housing and criminal courts. See Judith S. Kaye & Jonathan Lippman, New York State Unified Court System, Criminal Justice Program 1 (1996); Judith S. Kaye & Jonathan Lippman, New York State Unified Court System, Housing Court Program: Breaking New Ground 18-20 (1997); Russell Engler, And Justice For All - Including the Unrepresented Poor: Revisiting the Roles of the Judges, Mediators and Clerks, 67 Fordham L. Rev. 1987, 2063-69 (1999) (examining New York City housing courts).
221. In addition, the Family Court and Office of Child Support Enforcement are developing a computer system that will allow them to share access to records, which are currently only accessible in the Support Collection Unit. See id. at 29. Similar pilot projects are being implemented in New York's housing and criminal courts. See Judith S. Kaye & Jonathan Lippman, New York State Unified Court System, Criminal Justice Program 1 (1996); Judith S. Kaye & Jonathan Lippman, New York State Unified Court System, Housing Court Program: Breaking New Ground 18-20 (1997); Russell Engler, And Justice For All - Including the Unrepresented Poor: Revisiting the Roles of the Judges, Mediators and Clerks, 67 Fordham L. Rev. 1987, 2063-69 (1999) (examining New York City housing courts).
222. See Innovative Programs, supra note 71.
223. The child support enforcement clinic helps many women in Denver who have trouble collecting court-ordered payments. See id. The State of Illinois and the ABA have implemented similar projects. The Illinois Task Force on Child Support was established in 1983 to educate the parents about their rights and how to receive support within the state of Illinois. See Illinois Task Force on Child Support, Ensuring the Financial Security of Illinois Children (n.d.). Their findings indicated that only 58% of the 8.8 million women raising their children in single parent household have a court order for child support. See id. Similarly, the ABA Center for Children and the Law, the South Carolina Bar, and the University of South Carolina School of Law's pro bono student lawyer program, implemented a pilot project entitled The Pro Se Modification of Child Support Awards Through the Courts. It evaluated the effectiveness of court procedures in child support enforcement and modification procedures, in both Title IV(D) and non-IV(D) cases.
224. See Denver Bar Ass'n, Denver Community School at Gove: 1998 Legal Clinics Flier (n.d.) [hereinafter Gove Flier] (on file with the Fordham Law Review) (advertising the following monthly legal clinics of the Denver Bar Association: Child Support Enforcement, Bankruptcy, Small Claims, and Collections Claims); Denver Bar Ass'n, Denver Community School at Hamilton: 1998 Legal Clinics Flier (n.d.) [hereinafter Hamilton Flier] (on file with the Fordham Law Review) (same).
225. Gove Flier, supra note 209 (advertising the following monthly legal clinics of the Denver Bar Ass'n: Child Support Enforcement, Bankruptcy, Small Claims, and Collections Claims); Hamilton Flier, supra note 209 (same). There is a small administrative fee to cover the costs of running the program.
226. See Innovative Programs, supra note 71.
227. See id.
228. See, e.g., Murphy, supra note 20, at 140 (referencing her study of pro se programs, a survey of pro se programs conducted by the National Center on Women and Family Law, and a summary of pro se programs prepared by the National Council of Juvenile and Family Court Judges); see also Eagly, supra note 1, at 451-84 (discussing the author's role in developing a community education program for Latinas through her work as a staff attorney at the Women's Law Project of the Legal Assistance Foundation of Chicago). At the Family Law Self-Help Program in the Alachua County Courthouse, Gainesville, Florida, law clinic students participate in the program by writing detailed advice letters for clients and, subsequent to cases being filed, provide advice on substantive questions of law. The law students also represent program clients at hearings and conduct mediations. See Letter from Peggy Schrieber, Virgil Hawkins Civil Clinic, University of Florida College of Law, to Margaret Martin Barry, author (May 27, 1998) (on file with author). Maine's state courts sell a pro se divorce packet for one dollar, which provides a step-by-step guide to filing for divorce. See Telephone Interview with Michael Brown, Family Law Practitioner, Volunteer Attorney for Maine's Volunteer Lawyers Project sponsored by the ABA (June 21, 1998). Pennsylvania courts in Union and Snyder Counties accept simplified pro se custody forms and have employed hearing officers for custody cases. See Cristine K. Schroeder, The Essential Partnership, Pa. Law., May-June 1996, at 14, 15-16. Even the federal district courts have pro se attorneys who are responsible for assisting pro se litigants with procedural aspects of moving their cases.
229. For example, the Boyd School of Law, University of Nevada at Las Vegas, plans to set up a pro se clinic for first and second year students in conjunction with the family court of Clark County, Nevada. See Letter from Annette Appell, Associate Professor, Boyd School of Law, to Margaret Martin Barry, author (May 27, 1998) (on file with author).
230. District of Columbia Task Force on Family Law Representation, D.C. Bar Public Servs. Activities Corp., Access to Family Law Representation in the District of Columbia (1992) [hereinafter Task Force Report].
231. See id. at 39.
232. See id. at 40.
233. See id. at 39.
234. The prohibition against clerks giving legal advice has been described as devoid of "inherent meaning, or even core meaning, and . . . its current use by courts has serious negative consequences for the ability of courts to provide full and consistent public service." Greacen, supra note 6, at 10; see also Goldschmidt, supra note 6, at 6-9 (addressing the scope of permissible assistance by court staff).
235. The lack of a clear interpretation of the proscription against giving legal advice leads to inconsistent application. Thus, personal preference enters the equation, with the person favored by a given clerk receiving more information - and even receiving advice - than the person who is not as convivial. See Graecen, supra note 6, at 12.
236. Task Force Report, supra note 215, at 14. The Task Force also recommended a number of statutory and procedural changes. See id. at 15-17. Some of these changes are reflected in recent amendments to the Superior Court's Domestic Relations Rules, i.e., removing the requirement that pleadings be notarized, and practices, i.e., the delay in obtaining approval to proceed without payment of costs. The recommendation that steps be taken to avoid continuances has been harder to achieve, and is one of the more onerous aspects of seeking relief in the Family Division.
237. See D.C. Bar Pub. Service Activities Corp., Uncontested Divorce Pro Se Plus Clinic: Volunteer Manual 1 (1996) (on file with the Fordham Law Review). 224. See id. at 4.
238. See D.C. Bar Pub. Service Activities Corp., Uncontested Divorce Pro Se Plus Clinic: Volunteer Manual 1 (1996) (on file with the Fordham Law Review). 224. See id. at 4.
239. See id. at 1.
240. See id. at 19.
241. The number of participants fluctuates between very few to more than 30 per session. Ideally, the number of participants should be a consistent 20 per session. This would assure that teaching could be sufficiently interactive and that the space available in the courthouse is not cramped. The decision to locate the divorce clinic sessions in the courthouse was made so that litigants who had come to the court seeking help would not have to find yet another location and to reinforce the clinic's connection with the court. See D.C Bar Pub. Servs. Activity Corp., Annual Report 1995-96, at 1-2 (1996).
242. See Task Force Report, supra note 215, at 33-44.
243. The pro se divorce clinic is held on two consecutive Thursdays one month, with the next group attending on two consecutive Saturdays the next month.
244. The D.C. Bar also conducts a walk-in clinic at a neighborhood legal service office at which anyone who walks in can obtain legal advice. Volunteer attorneys staff the project. Another Bar project is the operation of a hotline which provides a synopsis of the law and additional legal resources in a broad range of subject areas, including divorce. Many pro se litigants are also referred to the Multi-Door Dispute Resolution Division, a court-sponsored mediation program that includes an intake and referral program.
245. One unintended consequence of the law firm participation was that legal service attorneys were completely outgunned by the resources available to the law firm attorneys. Depositions and psychological assessments were ordered that were hard to match. Furthermore, since the firm attorneys were often the newer associates who had no litigation experience, their aggressive tactics, underwritten by big firm largesse, made it difficult to focus attention on the needs of clients. See Scully Interview, supra note 49.
246. Of the 911 custody petitions filed in the Superior Court of the District of Columbia between January and October 1997, 669 were pro se. See Letter from Lionel Moore, Acting Chief of the Domestic Relations Branch, Superior Court of the District of Columbia, to Zinora M. Mitchell-Rankin, Deputy Presiding Judge, Family Division, Superior Court of the District of Columbia (Oct. 28, 1997).
247. The author was a member of the Family Law Representation Task Force and continues as a member in the new committee stage. In that capacity, I have drafted the form custody pleadings, which are currently awaiting approval by the court.
248. At present, litigants can only participate in the pro bono clinics through a referral from a legal service provider or an attorney. This poses a barrier to some litigants who have difficulty accessing either resource. The D.C. Bar, however, also runs an Advice and Referral Clinic, staffed by volunteer law firms, law associates, and individual bar members. Brief advice is given in 70% of the cases, and another 20% are referred.
249. See District of Columbia Domestic Violence Coordinating Council, District of Columbia Domestic Violence Plan 8-9 (1995) [hereinafter D.C. Domestic Violence Plan]. The publication details the reorganization and coordination of procedures for handling domestic violence cases.
250. An Assistant U.S. Attorney and a paralegal staff the Intake Center. They are part of the U.S. Attorney's Office Domestic Violence Unit. The unit was created in response to persistent requests from advocates for an informed and consistent prosecutorial response to domestic violence in the city. See id. at 5.
251. The Office of the Corporation Counsel is authorized by statute to represent victims of domestic violence. See D.C. Code Ann. § 16-1002(b) (1997). Under the Plan, that office has assigned a unit, consisting of one paralegal and three attorneys to the Intake Center. See D.C. Domestic Violence Plan, supra note 235, at 63, 70.
252. As part of the Plan, the Metropolitan Police Department has assigned a liaison officer to the Center. The officer serves as a source for information about and access to police services. See D.C. Domestic Violence Plan, supra note 235, at 18.
253. The Emergency Domestic Relations Project is a grant-funded program, administered by Georgetown University Law Center's Sex Discrimination Clinic. The Project acts as the central attorney referral source for victims of domestic violence, doing intake interviews and playing a pivotal role in and administration of the Intake Center. See id. at 63.
254. The court's Domestic Violence Plan anticipates that the D.C. Coalition Against Domestic Violence would be able to provide a steady stream of trained volunteers to assist petitioners. The Coalition has done this where possible, but it has had some difficulty recruiting and training the steady number of volunteers needed to make this component of the plan dependable. See id. at 25-28, 62-63.
255. Revision of the pleadings to make them more explicit and to provide more guidance to the petitioners, as well as those assisting them, was done as part of implementing the Domestic Violence Plan.
256. Information is the operative word. As described above, the line between information and advice can be quite fuzzy, although the advocates tend to be more motivated than clerks in seeking to provide as much information as their training has conveyed is appropriate.
257. David R. Barnhizer, The Clinical Method of Legal Instruction: Its Theory and Implementation, 30 J. Legal Educ. 67, 71 (1979).
258. See id.
259. Kimberlee K. Kovach, The Lawyer As Teacher: The Role of Education in Lawyering, 4 Clinical L. Rev. 359, 359 (1998) (discussing the importance of developing the teaching role of lawyers, both as a means of enhancing legal skills and of providing community service).
260. Binder and Price identified this as client-centered lawyering and in doing so defined one of the keystones of clinical legal education. See David A. Binder & Susan C. Price, Legal Interviewing and Counseling: A Client-Centered Approach 1-5 (1977); see also Alex J. Hurder, Negotiating the Lawyer-Client Relationship: A Search for Equality and Collaboration, 44 Buff. L. Rev. 71, 84-88 (1996) (exploring the need for the attorney and client to take the time to understand and reconcile their interests and values and negotiate their joint goals and strategy for pursuing them).
261. Binder and Price identified this as client-centered lawyering and in doing so defined one of the keystones of clinical legal education. See David A. Binder & Susan C. Price, Legal Interviewing and Counseling: A Client-Centered Approach 1-5 (1977); see also Alex J. Hurder, Negotiating the Lawyer-Client Relationship: A Search for Equality and Collaboration, 44 Buff. L. Rev. 71, 84-88 (1996) (exploring the need for the attorney and client to take the time to understand and reconcile their interests and values and negotiate their joint goals and strategy for pursuing them).
262. See Kovach, supra note 245, at 361-69 (discussing the similarities between lawyering and teaching).
263. Among the core attorney competencies identified by the MacCrate Report are communication, problem-solving, and counseling. See Task Force on Law Schools and the Profession: Narrowing the Gap, American Bar Ass'n, Legal Education and Professional Development - An Educational Continuum 138-41 (1992) [hereinafter MacCrate Report].
264. The students were expected to participate in one of several projects. See Margaret Martin Barry, A Question of Mission: Catholic Law School's Domestic Violence Clinic, 38 How. L.J. 135, 155-158 (1994) (discussing the opportunities for service available to FALC students).
265. As noted above, the D.C. Superior Court Family Division clerks distributed the divorce packets according to the issues identified by the prospective litigant. There are eight packets, lettered A through H. Packet "A" is entitled "For Six Month Mutual and Voluntary Separation with no children and no property." Packet "B" is entitled "One Year Separation with no children and no property" - this being the simplest set of issues a litigant could present. The packets progress in difficulty for those people who have children and/or property issues to resolve.
266. Participants were also asked to fill out an anonymous questionnaire at the beginning of the session that indicated their income, race, gender, and the legal issue as identified by the divorce packets. These demographics were used for reporting purposes, but also allowed for a quick, rough supplemental assessment of the audience.
267. The clinic can refer divorces that include contested custody issues to D.C. Bar's PSAC Law Firm Pro Bono project, provided the participant meets the project's indigency guidelines.
268. As discussed below, the ethics barometer rises in such encounters. I always reemphasized that I was not acting as their attorney and that the information that I could get in this context was not sufficient for me to give anything but qualified advice. This felt like a balancing act, but it felt worse to ignore their questions when I knew that it was far from likely that most participants could afford counsel.
269. See Barry, Misplaced Blame, supra note 53, at 159.
270. There is no magic about the time to start discussing domestic violence with high school students. Junior high and elementary school students often experience domestic violence and need to have a way to think about their experiences. The curriculum for such an age group may be harder to develop. We decided, without more than some preliminary investigation, that high schools would be our best bet for getting the curriculum into the schools and that this was the best use of our limited resources. Specifically, we overcame what might have been an organizational nightmare by arranging with Rick Roe at Georgetown University Law Center's Street Law Clinic to come in during his students' instructional time to present three discreet workshops per class.
271. It is not unusual for children to blame themselves for the violence that one parent inflicts on another, or to blame the victimized parent. These feelings of fault and contempt can be debilitating. See National Ctr. on Women and Family Law, The Effect of Woman Abuse on Children: Psychological and Legal Authority 5-6 (1991); Maria Roy, Children in the Crossfire 86-87 (1988). See generally National Ctr. on Women and Family Law, supra, at 1-45 (reviewing psychological authority regarding the detrimental effects on children of parental abuse).
272. It is not unusual for children to blame themselves for the violence that one parent inflicts on another, or to blame the victimized parent. These feelings of fault and contempt can be debilitating. See National Ctr. on Women and Family Law, The Effect of Woman Abuse on Children: Psychological and Legal Authority 5-6 (1991); Maria Roy, Children in the Crossfire 86-87 (1988). See generally National Ctr. on Women and Family Law, supra, at 1-45 (reviewing psychological authority regarding the detrimental effects on children of parental abuse).
273. It is not unusual for children to blame themselves for the violence that one parent inflicts on another, or to blame the victimized parent. These feelings of fault and contempt can be debilitating. See National Ctr. on Women and Family Law, The Effect of Woman Abuse on Children: Psychological and Legal Authority 5-6 (1991); Maria Roy, Children in the Crossfire 86-87 (1988). See generally National Ctr. on Women and Family Law, supra, at 1-45 (reviewing psychological authority regarding the detrimental effects on children of parental abuse).
274. Unlike the situation in pro se divorce clinics, the message to the high school students is that they should get an attorney. The message has more substance in this context because the number of teenagers currently seeking legal remedies is not overwhelming, and representation of teen petitioners in domestic violence cases is a priority for FALC and several other legal service providers in the District of Columbia. Advocates have also urged the court to use its statutory powers to appoint guardians ad litem when no alternative is available for teen petitioners or respondents.
275. The manual, The High School Domestic Violence Workshop Curriculum, was developed by me and Professors Stacy Brustin and Catherine Klein, with help in the revised version from Kamina Henderson, a fellow at Georgetown University Law Center through June, 1998. Margaret Martin Barry et al., The Superior Court of the D.C. Domestic Violence Coordinating Council, The High School Domestic Violence Workshop Curriculum (1997) [hereinafter Barry et al., Domestic Violence Workshop Curriculum]. The manual was developed when it was decided that we would work with the Superior Court of the District of Columbia's Domestic Violence Coordinating Council to take the teen workshops citywide. Each fall for the past three years, the court has recruited judges, attorneys, court clerks, and others in the community who indicated a willingness to commit the time to be trained and to conduct at least one of the three workshops to be presented at each high school. Working with Georgetown's Street Law Clinic, volunteers are scheduled into each high school in the District. See supra note 255. Volunteers attend one three-hour session, conducted by FALC and Street Law faculty. The session is used to discuss the contents of the manual and teaching goals and methods. As with the Pro Se Divorce Clinics, the manual became necessary to assure some quality control in training volunteers to conduct the workshop. We have received evaluations from most of the classes in which these workshops were conducted. The response has been very positive with regard to the workshops conducted by FALC students, and with slightly less consistency regarding the presentations by Coordinating Council volunteers. FALC students who take the clinic in the fall semester conduct their workshops as part of the citywide effort. Those who take it in the spring go into classes in approximately six schools, often in Street Law classes in those schools that only offer that particular course as a one-semester event. This structure has evolved from a program that was developed by FALC, but would have had difficulty expanding without the Superior Court's interest, including the participation and active support of Judge Ellen Huvelle and Chief Judge Eugene Hamilton.
276. The first workshop session covers the dynamics of domestic violence, including discussion of the teen power and control wheel, the cycle of violence, barriers to seeking help, barriers to acknowledging wrong and the equality wheel. The issues are discussed in the context of three role-plays built around an interaction between a hypothetical teen couple. The second workshop uses the relationship to explore how teens can help each other work through violent relationships. Exploring peer counseling is all the more important in the teen context given the virtually non-existent resources available to address teen dating violence in the District of Columbia. See generally Barry et al., Domestic Violence Workshop Curriculum, supra note 258 (creating a three-workshop curriculum for teaching teens about domestic violence).
277. In the District of Columbia, the statute allows persons involved in a "romantic relationship" to obtain a protective order. D.C. Code Ann. § 16-1001(5)(B) (1981).
278. Unlike some jurisdictions, the District of Columbia does not set an age limit on who can seek protective orders. Nor does its protective order establish any requirements regarding the minors as parties to such proceedings. See id. §§ 16-1001 to -1034. Because the age of majority in the District is 18, however, it is not clear that a minor can sue in his or her own right for a protective order. D.C. law speaks to the court's ability to appoint guardians ad litem to represent minors, see id. §§ 16-918(b), 16-911(a-2)(5), and case law has been used to support the claim that a minor should be emancipated. Cf. In re Marriage of Weisbart, 564 P.2d 961, 964 (Colo. Ct. App. 1977) (holding that a 19-year-old who held a full-time job and was living on his own was emancipated). But see Kuper v. Woodward, 684 A.2d 783, 786 (D.C. 1996) (holding that a child's change of residence was not sufficient ground for finding the child "emancipated" for purposes of child support). While often represented by counsel acting as guardians or attorneys or determined to be emancipated, minors have been known to seek and obtain protective orders without the court addressing the issue at all. The court has no stated policy in this regard, and is even more ambiguous concerning minors who are respondents in these actions. 262. For a discussion of the scope of representation, see supra Part I.D.