Bar News - September 21, 2016
Opinion: Help for the Unrepresented: A Look at a New Approach
By: Chuck Douglas
Last year, more than 100,000 of our fellow citizens went to court for stalking, domestic violence, landlord-tenant issues, marital matters and small claims. In the July issue of the Bar News, Administrative Judge Ed Kelly well set forth the magnitude of the situation.
It is not unusual for a Circuit Court judge to sit down behind his or her bench at 9 a.m. and see 75 people in the courtroom, but not a single lawyer.
The judges and clerks have to take time to educate or coach folks about the scary and intimidating legal and judicial system with which they are engaging.
The solution is not more lawyers, because with law students graduating with $150,000 in debt, they can hardly pay it off by doing small claims cases and representing tenants.
The answer may lie to our north and west, namely a licensed legal technician program for limited in- and out-of-court representation confined to a handful of matters. The community colleges and our other colleges and universities can hire local lawyers on a part-time basis to train people to handle cases like small claims or domestic violence for $200 or $300. The Legal Technician or LT could be associated with a law firm, legal assistance organization, or be on their own, operating out of their homes using laptops.
Lawyers practicing in this state doing marital law work, at most, had a one-semester family law course. Many had no training in family law at all, let alone studying stalking, small claims or representing tenants. The person with substantial assets can still afford a lawyer, but the young couple with two children and a mobile home could each have an LT in a price range they could afford, to give advice and take them through the process in court.
Does such a program exist elsewhere?
The Washington State Supreme Court in 2012 authorized the creation of a new class of “limited licensed legal technicians” to provide legal assistance and information to unrepresented persons. The LLLT Board began issuing licenses last year; however, these technicians do not yet go to court.
In Ontario, Canada, certain paralegals, known as independent paralegals, are permitted to charge fees for certain types of cases and actually appear in court as well as negotiate for clients.
At the national level, the American Bar Association Task Force on the Future of Legal Education’s final report called for law schools to create an innovative framework for a provision of legal services by new categories of practitioners. One of the fastest-growing fields in the medical profession is a new class of non-physician professionals, so it is logical that the legal profession would follow suit.
Recently, our state Supreme Court created a Commission on the New Hampshire Bar in the 21st Century to evaluate initiatives and challenges, with a report due no later than Jan. 17, 2017. It is hoped that the Commission would look at changes to the unauthorized practice of law statutes and rules, as a way to further benefit the public and provide access to advice and counsel on limited matters in limited situations.
Because of the limited areas that are massively unserved at the moment, I see no other way to provide that service than a new paradigm. Just urging lawyers to take more pro bono cases is not going to solve the problem and, in fact, many of the cases they take would be in areas in which they don’t regularly practice, like stalking or landlord-tenant. Wouldn’t it be better to have someone who has studied for a few months and has been certified by a law school or a college to handle only such matters?
The push back, of course, will be that this will take work away from lawyers; however, it is fairly obvious that with more than 100,000 cases per year already involving non-lawyers, that argument is no longer valid. The question is whether all these self-represented folks will have a chance to get some advice and direction rather than just going in and filling courtrooms and having very little idea of what they are doing.
In the age of the internet and Legal Zoom we are in a new environment anyway, so it would be better to embrace it and construct it and regulate it in a way that meets the need of our fellow citizens who cannot afford the services of an attorney.
Chuck Douglas is a former justice of the NH Superior Court and the NH Supreme Court. He practices in Concord.