An Important Piece of the Bundle: How Limited Appearances Can Provide an Ethically Sound Way to Increase Access to Justice for Pro Se Litigants

Georgetown Journal of Legal Ethics, The, Summer 2007 by Farley, Alicia M

INTRODUCTION

For many Americans, the legal system in this country simply does not work. Despite a traditional philosophical commitment to the notion that everyone is entitled to a fair and impartial "day in court," meaningful access to justice eludes a significant portion of the population. The American Bar Association ("ABA") estimates that each year as much as eighty percent of the poor's legal needs go unmet.1 Legal services organizations and pro bono programs that assist those who cannot afford legal help generally meet only fifteen to twenty-five percent of overall need.2 As demand for legal services has increased, several factors have contributed both to a scarcity of resources and inequity in their distribution.3 Budgetary and subject-matter restrictions on the Legal Services Corporation ("LSC"),4 along witìi cutbacks in social services and benefits, have substantially affected the availability of free or affordable legal assistance for the nation's poor.5 Individuals who lack access to legal services are often forced to either ignore their legal problem or navigate the system without representation.6 The latter path has become increasingly popular, causing a fundamental shift in the way American civil courts resolve legal disputes.

The majority of litigants now proceed pro se1 in state courts.8 Nationally, more than three out of five cases have at least one unrepresented party.9 Particularly high volume courts, such as traffic, housing, family, and small claims, are crowded with pro se litigants.10 While the reasons for the dramatic increase in pro se representation may vary,11 the impact on courts' operations is considerable.12 Perhaps most troubling, however, is that pro se litigants are less likely to achieve equal access to justice when compared to those represented by competent counsel.13 Aside from the disadvantage they face due to lack of legal knowledge and experience, pro se litigants are vulnerable to unethical opposing counsel, are less successful in asserting defenses and presenting evidence, and generally face poorer legal outcomes.14 While many courts have begun providing some services for pro se litigants,15 this response has not eliminated the need for attorney assistance.

Consequently, as demand for attorney services has increased, many legal services providers have started utilizing new methods of legal assistance to maximize their limited resources. These efforts have largely relied on "limited scope representation" or "unbundled legal services" to provide at least some help to as many eligible individuals as possible.16 Limited scope representation allows legal services attorneys to help more individuals by completing shorter, discrete tasks, rather than providing full representation to only a few clients.17 Many courts and bar associations are collaborating witii legal aid providers to facilitate limited representation and develop programs to assist unrepresented litigants.18 These programs have focused largely on providing information through self-help resource centers, courthouse facilitators, and pro se classes.19 Despite these efforts, however, many unrepresented litigants are often either unaware of these services or unable to effectively apply the information they receive to their cases.20 Additionally, a lack of substantive and procedural legal knowledge leaves many pro se litigants simply unable to present their cases clearly in court proceedings.21 These individuals require additional services that only a licensed attorney can provide, including actual advocacy before me court on their behalf.22 However, some jurisdictions have been hesitant to implement programs or rules that allow attorneys to make limited court appearances to advocate on behalf of a pro se litigant.23 Because many pro se litigants face difficulties adapting to the courtroom environment, limited appearances are an important component of any comprehensive limited representation program aiming to increase access to justice.

While limited scope representation provides promise for increasing access to justice for low-income Americans, this model is often in tension with traditional ethical and procedural rules. However, because traditional full-service representation is largely inaccessible to low-income individuals, meeting the needs of the growing pro se population requires changes to the court system to ensure that justice is fair and efficient for all litigants.24 Although there is reluctance to accept hmited appearances as a routine part of unbundled legal services, they are a useful and ethically permissible tool to increase access to justice. Future efforts should seek to address and remedy procedural barriers, while maintaining ethical standards, for attorneys who enter hmited appearances on behalf of unrepresented litigants. Formalizing procedural and ethics rules that better respond to the reality of unmet legal needs will allow attorneys to appropriately balance their responsibility to provide ethically sound representation with the obligation to increase access to justice.25