January 2, 2010
Op-Ed Contributors
A Nation of Do-It-Yourself Lawyers
By JOHN T. BRODERICK Jr. and RONALD M. GEORGE
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AMERICA’S courts are built on a system of rules and procedures that assume that almost everyone who comes to court has a lawyer. Unfortunately, the reality is quite different. An increasing number of civil cases go forward without lawyers. Litigants who cannot afford a lawyer, and either do not qualify for legal aid or are unable to have a lawyer assigned to them because of dwindling budgets, are on their own — pro se. What’s more, they’re often on their own in cases involving life-altering situations like divorce, child custody and loss of shelter.

As the economy has worsened, the ranks of the self-represented poor have expanded. In a recent informal study conducted by the Self-Represented Litigation Network, about half the judges who responded reported a greater number of pro se litigants as a result of the economic crisis. Unrepresented litigants now also include many in the middle class and small-business owners who unexpectedly find themselves in distress and without sufficient resources to pay for the legal assistance they need.

As judges, we believe more needs to be done to meet this growing challenge: an inaccessible, overburdened justice system serves none of us well. California took a major step forward in October when it became the first state to recognize as a goal the right to counsel in certain civil cases. (The state also committed to a pilot project, financed by court fees, to provide lawyers for low-income citizens in cases where basic human needs are at stake.)

But this is only a beginning. It is essential that we promote other efforts to close the “justice gap.”

One such effort involves the “unbundling” of legal services. Forty-one states, including California and New Hampshire, have adopted a model rule drafted by the American Bar Association, or similar provisions, which allow lawyers to unbundle their services and take only part of a case, a cost-saving practice known as “limited-scope representation” that, with proper ethical safeguards, is responsive to new realities.

Traditionally, lawyers have been required to stay with a case from beginning to end, unless a court has excused them from this obligation. Now, in those states that explicitly or implicitly allow unbundling, people or businesses can hire a lawyer on a limited basis to help them fill out forms, to prepare documents, to coach them on how to present in court or to appear in court for one or two hearings.

For example, a lawyer could advise a client in a divorce proceeding about legal principles governing the division of marital assets or provide assistance in calculating child-support obligations. A lawyer might also draft pleadings or legal memos or provide representation at a hearing to obtain a domestic-violence restraining order.

What could be wrong with this? Well, some lawyers have expressed concern that limited legal representation will encourage litigants to dissect their cases in an effort to save money, sacrificing quality representation that the litigant might otherwise be able to afford. We have also heard the argument that by offering too much assistance to self-represented litigants, the courts themselves are undermining the value of lawyers and the legal profession. Apparently, some are concerned that the court system will become so user-friendly that there will be no need for lawyers.

We respectfully disagree. Litigants who can afford the services of a lawyer will continue to use one until a case or problem is resolved. Lawyers make a difference and clients know that. But for those whose only option is to go it alone, at least some limited, affordable time with a lawyer is a valuable option we should all encourage.

In fact, we believe that limited-scope-representation rules will allow lawyers — especially sole practitioners — to service people who might otherwise have never sought legal assistance. We also believe that carefully drafted ethical rules allowing lawyers to handle part of a case give the legal profession an opportunity to help the courts address the ever-growing number of litigants who cross our thresholds. This cause has special relevance now as state courts are faced with serious cutbacks in financing, forcing some to close their doors one day a week or a month, lay off front-line staff members and delay jury trials. None of this bodes well for the judicial system or for those seeking to vindicate their rights through the courts, whether they have a lawyer or not.

We need members of the legal profession to join with us, as many have done, in meeting this challenge by making unbundled legal services and other innovative solutions — like self-help Web sites, online assistance programs and court self-help centers — work for all who need them. If we are to maintain public trust and confidence in the courts, we must keep faith with our founding principles and our core belief in equal justice under the law.

John T. Broderick Jr. is the chief justice of New Hampshire. Ronald M. George is the chief justice of California.