Bar News - April 21, 2006
Supreme Court’s Adoption of Unbundling Rules Part of Program to Increase Legal Access
The New Hampshire Supreme Court’s approval of amended court rules to allow limited-scope representation in civil matters is part of the court’s drive to clear obstacles to legal representation and enhance awareness of the need for low-cost legal services for the poor.
One symptom of the problem is the growing number of pro se litigants at all levels of the state courts, and nationally. Studies show that many of these litigants come to court unrepresented because they cannot afford a lawyer. The new “unbundling” rules in New Hampshire, the court believes, clear the way for consumers who want to hire a lawyer on a limited basis to help them in a civil case. The new procedures are effective throughout the state court system on July 1, 2006. Limited representation rules authorize a lawyer to carry out a designated task for clients who might otherwise handle the matter themselves.
“Court procedures can be complicated and daunting for citizens who come to our courts without any legal help at all,” Chief Justice John T. Broderick Jr. said. “Limited help from a lawyer, at an affordable price, will make an important difference for those citizens by making the justice system more accessible to all, not just to those who can afford to pay,” Broderick said.
The Supreme Court has taken other actions to improve access to justice:
· Associate Supreme Court Justice James E. Duggan and U.S. District Court Chief Judge Steven J. McAuliffe are forming a permanent “Access to Justice” group to address the unmet legal needs of New Hampshire citizens.
· The first court system ADR administrator, Peter Y. Wolfe, oversees an intensified effort to make alternative dispute resolution services available to court users. Various ADR services are now available in the state courts, including mediation in small claims, probate cases and some family cases. The use of mediation or other forms of ADR lowers costs for litigants and is more likely to produce an outcome that the parties can live with over time.
· A new Judicial Branch “Committee on Dispute Resolution Services,” chaired by Senior Associate Justice Linda S. Dalianis, was established to examine current ADR systems, propose improvements and work on a plan for a permanent ADR office.
· Over the past few months, Chief Justice Broderick has met with leaders of the state’s largest law firms, and with past and present leaders of the NHBA urging greater participation in the Pro Bono Program. Manchester attorney David Nixon, following the meeting of the past presidents, wrote to Broderick, detailing a number of outreach initiatives that past NHBA presidents intend to pursue to assist and improve the delivery of legal services to the poor, including encouraging the establishment of a legal “help desk” in the hallways of each superior court house, staffed by volunteer lawyers, to provide brief assistance to pro se litigants. The past presidents also plan to speak at local and county bar meetings on the topic of pro bono and increased volunteerism, and the group vowed to serve as an example of volunteerism by agreeing to take at least three pro bono cases each in 2006, Nixon’s letter said.
Regarding the announcement of the amended rules allowing unbundled legal services, Broderick said: “We recognize that lawyers add great value to the system and the unbundling rules will allow the courts to take advantage of that while also making it possible for citizens to afford legal representation on critical issues in the life of their cases,” Broderick said.
Prior to the rule changes, lawyers who appeared for a client in court were required to remain on the case until completion, unless the court released them from that obligation.
Nationwide, court systems have increasingly looked toward limited legal representation as an important resource for consumers who cannot afford a lawyer, or for those who want advice, coaching or document preparation on a limited basis. According to the American Bar Association, New Hampshire joins Utah, Colorado, Washington, Alaska and Maine in developing comprehensive procedures, for lawyers and clients, to permit and regulate delivery of limited legal services.
A 2004 Supreme Court Task Force report on self-representation found that there is at least one pro se party in 85 percent of all civil cases in the district courts, and in 48 percent of all Superior Court cases. Both sides appear without a lawyer in 38 percent of probate cases, and there is at least one pro se party in close to 70 percent of domestic relations cases in the superior court. Following a recommendation from the pro se task force, the Supreme Court Advisory Committee on Rules began consideration of revised rules for limited legal representation to specify how those services could be delivered and to clarify professional conduct rules for lawyers who provide those services.
“By unbundling legal services, states are trying to develop a new, easier and more affordable way to provide legal service to those who need it but can’t afford it, and to those who, for whatever reason, choose not to have an attorney for a whole proceeding,” said Keene lawyer John C. Norton, Chair of the New Hampshire Bar Association’s Pro Bono Referral Governing Board and a member of the NHBA Ethics Committee. Both of those groups, with the support of Bar leadership, offered revisions to proposed rules that were under consideration by the Advisory Rules Committee. The Advisory Rules Committee accepted those revisions, and then made final recommendations to the Supreme Court. After receiving public comment, the Supreme Court adopted the new rules with further revisions.
Under the new rules, both the lawyer and client must file a “Consent to Limited Representation Form” with the court which states the specific matter the lawyer will handle. The revised rules provide that a lawyer will automatically be released from any further participation in a case once that specific matter is completed and the lawyer files a notice of withdrawal. A sample consent form is included in the court order adopting the rules.
An NHBA CLE program on the new “unbundling” rules is scheduled for May 31. (See information on page 17.) In the meantime, Norton said, Pro Bono and the Bar will explore ways to provide contact information to consumers about lawyers who are willing to offer limited legal services. Norton and Virginia A. Martin, the New Hampshire Bar’s associate executive director for legal services, recently presented a workshop on expanding access to justice through “unbundled” legal services at the ABA’s “Equal Justice Conference” in Philadelphia. (See article on the following page.)