I. STATEMENT OF GOAL 1
II. BACKGROUND AND ANALYSIS 1
III. OBJECTIVES 5
IV. RATIONALE FOR OBJECTIVES 6
V. STRATEGIES 24
VI. APPENDICES 30
A. Goal Group Roster 31
B. List of Goal Group Meetings/Conference Calls Held and Purpose of Each 32
C. Partial Bibliography of Written Resources Used 35
D. List of Persons Invited to Comment 37
Letter Inviting Comments on Draft Objectives and Strategies (Hard copy only)
Comments Submitted (Hard copy only)
E. Ten Minute Pro Bono Survey Letter/Survey, Partial Data, Budget (Hard copy only)
Goal Group V. Access to Justice for All, Statement of Goal:
This Final Report describes the Goal Group's conclusions, rationale, process and research.
This is the final report of the Access to Justice for All Goal Group. It presents seven objectives and fifty-seven strategies which the Goal Group took care to express as succinctly as possible, while incorporating the key concepts. See Sections III and V.
By contrast, the goal of
the remainder of this report is comprehensiveness. It compiles and assesses
information used to develop and refine the objectives and strategies. The
report contains this introductory narrative highlighting the Goal Group's
process and conclusions, the list and (where applicable) rankings of the
objectives and strategies, summaries of rationale for the objectives and
strategies, a list of all the meetings held by the Goal Group, a bibliography
of major resources used, copies of written comments received from those
invited to review draft strategies and objectives, a list of persons asked
to provide input and an analysis of data received from the pro bono
The concept of Access to Justice For All weaves through the legal and broader communities.
At its initial meeting in January, 1997, the Goal Group noted that "Access to Justice for All" was such a broad concept that this inquiry would not be able to incorporate all of its social, legal and other implications. Therefore, the Goal Group did not primarily approach this topic in philosophical terms, but rather worked to identify how "Access to Justice" could best be addressed by the State Bar of Michigan within the range of its activities and resources. This would include the extent to which the State Bar may be able to provide direct resources as well as how it could work within itself and with others to accomplish the objectives and strategies in the legal and broader communities. Nevertheless, the Goal Group was mindful of the degree to which access to justice issues are relevant throughout all aspects of the State Bar's work. For that reason, the Goal Group has placed the following objective as the first in importance:
Beyond prioritizing the objective listed above as first in importance, the Goal Group has declined to rank the other six objectives (although the strategies under each objective have been ranked). The Goal Group is mindful of the fact that the work guide asks that the objectives be ranked, and the Goal Group discussed doing so. By the end of the Goal Group's work, it became apparent that prioritizing the other six objectives was fundamentally inconsistent with the content of Objective A.
It is not possible to say on the one hand that the effectiveness of access to justice efforts comes from assuring an integrated, comprehensive approach and also to list the components which should be integrated in order of descending importance. The Goal Group realized that the prioritization of objectives was designed to respect limited resources so that higher priority items could be implemented if resources had to be rationed. However, this "non-prioritization" respects finite resources even more effectively because addressing all of the objectives will leverage each of them. Also, the objectives supplement and magnify each other. For example, maximizing pro bono services (Objective C) compliments subsidized legal services (Objective B) and both of those efforts are facilitated by good self-help and referral systems (Objectives F and G). With this in mind, the Goal Group was careful in its selection of objectives so that the essential aspects of access to justice were covered and the objectives selected would work together toward the overall goal.
Strategies Are Prioritized But Often Among Equals.
The Goal Group did list the strategies under each objective in relative order of importance. However, we wish to note that even among strategies, prioritizing one above another is an artificial exercise. This is because some may be equally important or because efforts on one may facilitate success with others. For example, the strategies related to the objective of assuring subsidized civil legal services to those in need lists a number of strategies first which focus immediate attention on the need for resources, improved delivery methods and economies of scale. There is no question that these items are important. Nonetheless, the last strategy listed may be equally important, because expanding efforts beyond the poor to the near poor and less affluent moderate income may very well also help the poor. In view of this, the Goal Group has the following implementation suggestion: plan for all strategies simultaneously, but implement them as possible over time. Simultaneous planning will ensure that those strategies which are implemented later are integrated into considerations for those which are implemented earlier. Even though the Goal Group did attempt to prioritize the strategies, the perception that those listed last are unimportant would not be correct. Much effort was given to include all strategies essential to a given objective. It would not be consistent with the Goal Group's approach if strategies with lower rankings were deleted in future prioritization.
Information Was Obtained from Written Resources, Input from Experts and an Original Survey.
Attached to this report is a bibliography of written material that assisted members of the Goal Group. Of particular value was the Agenda for Access: The American People and Civil Justice, the final 1996 report on the ABA's comprehensive legal needs study. The Michigan Plan: A State-Based Plan for the Delivery of Civil Legal Services to the Poor and several other state's plans were also of great assistance in reviewing issues identified by others who have studied access issues, as well as the work to date of the State Bar of Michigan's Access to Justice for All Task Force.
Perhaps the resource of most significance and help to the Goal Group, however, were the thoughtful, substantive and often lengthy letters sent by 26 of the 53 experts which the Goal Group invited to comment on its draft strategies and objectives. Persons within the justice system in Michigan were identified for each of the seven objectives and asked to share their experience and knowledge with the Goal Group about those particular objectives or any other objective on which the expert wished to comment. The value of these written replies cannot be overstated. While the Goal Group members' own experience and knowledge covered a broad arena, the input of those invited to comment assured that a greater level of expertise was available for these complex topics. The Goal Group used much of what the commentors submitted to revise and improve the draft objectives and strategies. Occasionally, the Goal Group did not adopt a suggestion offered in one of the letters, but even in those instances, the Goal Group's process was improved through the value of assessing the idea or weighing it against other suggestions. The letter inviting comments and list of those invited is attached. The Goal Group has decided to send letters expressing its appreciation to those who forwarded their input, both to describe the value of the comments to the Goal Group and to assure contributors their ideas were considered.
The Goal Group determined early on that increased pro bono services would surely appear in the final recommendations but that data on what volunteer services are already being done by Michigan lawyers was insufficient to help the Goal Group develop the idea further. In cooperation with the State Bar's Pro Bono Involvement Committee (PBIC), the Goal Group developed a survey document to be sent to all in-state Michigan lawyers. The Goal Group requested and received funding for this survey from the State Bar. A copy of the survey instrument and results obtained to date is attached. Some 2,500 of the 4,000+ responses to the survey were entered into computer data by the time the Goal Group concluded its efforts. In finalizing the pro bono objectives and strategies, the Goal Group considered the general trends apparent from that partial data. Also, sending this survey and a cover letter from State Bar President Victoria Roberts to all lawyers in Michigan supported the PBIC's goals of emphasizing the State Bar's commitment to pro bono and highlighting the importance of pro bono services. The final data will be turned over to the PBIC to continue to review volunteer services that lawyers provide and how to encourage more.
The Goal Group used the required format for stating objectives and strategies but added examples.
The Goal Group followed the November 26, 1997 work guide calendar and format for completing its work. Therefore, tactics with which to execute strategies were not developed. However, some ideas which may seem to be tactics were occasionally added as illustrative examples. These examples are not to be read as exclusive because other types of activities not listed could also be designed when the planning process gets to the tactics stage. Nevertheless, the Goal Group prefers that the examples listed not be edited out of the statements because the examples were only added where the Goal Group felt they helped to explain the intent of the strategy.
The Goal Group's work product is relevant to the Access to Justice Task Force.
The Goal Group discussed several times how its efforts and those of the Access to Justice Task Force were related or possibly duplicative. Although the Goal Group clearly understood that the two groups had different charges, it was also apparent that the content on which they focused was fundamentally the same. The Goal Group's working assumption was that the long range planning process efforts to develop objectives and strategies on access to justice would lead to broad policy statements helping to guide the overall efforts of the State Bar. The Goal Group understood the Task Force to be working to ensure access to justice activities are coordinated and integrated in light of the overall access to justice policies of the State Bar. For these issues, it was most helpful to have Al Butzbaugh, Chair of the Task Force, also serve on the Goal Group. The Goal Group is hopeful that its work will not only assist the overall long range planning process but can also help the Task Force refine the direction of its work.
The Chair expresses appreciation to Goal Group members and others who assisted.
As Chair of the Goal Group, I would like to thank the Goal Group members--Lambro Niforos, Jonathan Rowe, Linda K. Rexer, and Alfred M. Butzbaugh, Jr.-- for their commitment to this challenging task. I was as impressed by the hard work of these people as I was by the value of their insights and knowledge. At the beginning, it was difficult to imagine how we might sculpt a product that could be helpful to access to justice efforts from raw clay. The list of meetings and materials only hint at the amount of time Goal Group members gave to this process. I am grateful to them for their work on this important issue. I am also grateful for the excellent help from Rick Winder which kept our work moving along and later to MaryAnn Sarosi who joined the State Bar staff as the new Access to Justice Associate Executive Director after our Goal Group began its work. We hope our efforts will help form a foundation for activities she and the State Bar can undertake. I am also grateful to Larkin Chenault and Dan Kim for helping with and supporting this process.
Richard A. Soble, Chair
Access to Justice for All Goal Group, State Bar of Michigan Long Range Planning Process
Note on Listed Order of Objectives: While the linear nature of our language requires that these objectives be listed one after another, the only objective which carries a priority is Objective A. It is first in priority simply because it provides the context for coordination and integration of all the Access to Justice for All objectives. The labeling of the other six objectives B through G is for identification only. It would be inconsistent with Objective A to rank the other objectives, all of which must work together in an integrated fashion for Objective A to succeed.
A. Assure that all of the State Bar's efforts to expand and improve access to justice are developed and implemented in an integrated fashion to ensure a coordinated, comprehensive and effective approach and that adequate staffing and resources are committed to this effort.
B. Subsidized (free or reduced fee) civil legal services are provided to those in greatest need in a quality, comprehensive, and integrated delivery system.
C. The profession maximizes the amount of civil legal services provided pro bono to those in need.
D. Appointed counsel are available in all appropriate circumstances and they provide effective representation to all their clients.
E. Promote Alternative Dispute Resolution availability for all.
F. Legal self-help and law-related assistance by non-lawyers is maximized within the bounds of the concerns of the profession and the public.
G. Ensure that options for obtaining information and appropriate
referrals are available to all facing a legal situation.
These words capture the challenge--yet the opportunity--that lies before us. The goal of access to justice transcends all bounds--economic, ethnic, and gender, to name a few. Yet it is not enough to say, "There is the courthouse. Anyone can use it." The concept of access to justice for all would be mere lip service if it did not incorporate the concept of "meaningful access." While it is difficult to define "meaningful access to justice for all," this report attempts to frame it in terms that can incorporate many facets of access to justice and yet at the same time provide some realistic strategies for bringing access to justice into reality.
Sources for Content in this Section. This section discusses the rationale behind the goal of Access to Justice for All and each of the objectives developed in support of this goal. It does this by capturing notes from the Goal Group's minutes, data from the pro bono survey, and excerpts from the written comments received relevant to each of the objectives. This is a compilation of information used by the Goal Group; it does not list ideas in any particular order or indicate the relative importance of each. Taken in total, it is a record of the major points considered by the Goal Group, made part of the text of this final report for future reference. Also, some of the comments noted provide a source of suggestions for tactics. While the individual statements in the narrative below are not footnoted, the Goal Group minutes, data from the pro bono survey, and written comments from which they came are on file. Much of the information below also relates to the strategies listed in Section IV.
What does Access to Justice for All mean? Does it mean access to court or ability to get into court? If so, everyone has access to justice simply by paying a filing fee (and even that can be waived for an indigent person). The theoretical concept of access to justice is beyond the scope of this report and of the State Bar. Rather, the focus must be on "What can the State Bar implement?"
The focus of this report is not to frame how the State Bar of Michigan (State Bar) can provide access to justice, but how the State Bar can facilitate access to justice, given its resources and its place in the Michigan environment. Implementation has to be the "book ends" which surround the access to justice goal. Therefore, the concept of access to justice for this report was limited to a manageable breadth by focusing it on the concept of people obtaining help with legal needs (e.g., versus other possible larger definitions of "justice" such as a right to food or housing). This ties to the definition of "legal needs" in a recent ABA study, which "refers to specific situations which members of households were dealing with that raised legal issues--whether or not they were recognized as 'legal' or taken to some part of the civil justice system." ABA Consortium on Legal Services and the Public, Legal Needs and Civil Justice: A Survey of Americans, page 2. The advantages of this framework were that: 1) the Goal Group did not have to "reinvent the wheel"; 2) the framework made sense in terms of what the State Bar is about; 3) the framework provided research data that the Goal Group was able to use in formulating its objectives and strategies; and 4) the recommendations that flow from the ABA study are encompassed in the objectives selected by the Goal Group.
While access to justice may include access to the legislative process, this report does not deal largely with making the laws, but more with laws as they exist. In some situations, parties may not be able to obtain justice, but at least have access to justice in the sense that parties can participate in a court proceeding. But even then, lack of information may prevent them from asserting rights that they have. For example, some may be confused by Small Claims Court procedures. Others may not know about ADR. Still others may not understand crucial issues, and may not be in a position to ask (or hire) someone to explain them. A landlord may have more effective access to justice because he or she is more familiar with the law, the court, the judge, etc.
The objectives and strategies developed deal not only with legal representation, but also with legal needs in a number of different but consistent ways. Meaningful access to justice is broader that simply having the availability of the courts. Self-help remedies or training in legal issues may prevent the need to go to court. The strategies developed in this report include greater involvement by the State Bar in encouraging education of the public so that members of the public can recognize when they have a legal need and when they should see a lawyer. The objectives and strategies also emphasize the State Bar's role in empowering the public to resolve their own problems, when appropriate.
The objectives and strategies in this report also emphasize the need for high quality representation available through public service lawyer referral and information systems, pro bono programs, and legal services programs, and ensuring that people obtain appropriate advice or referrals which are responsive to their needs.
Coordination Through the Access to Justice for All Task Force. Coordination and integration of a comprehensive approach are essential for the State Bar to implement an effective Access to Justice for All plan. This is a challenge for an organization which has many committees and sections. However, unless the Access to Justice for All plan is seen as a comprehensive integration of many resources, it will be perceived in terms of fragmented, possibly duplicative pieces. For this reason, any issue dealing with access to justice should have a single forum for coordination of activities. That forum already exists--The Access to Justice for All Task Force, which can advise the Board of Commissioners and other State Bar entities on access to justice issues to maximize and coordinate efforts.
Objective A also recognizes that it will take more than stating a desire for coordination and integration to achieve it effectively. It will take continued staff support which exercises vision, initiates informal and formal contacts with relevant persons, and assures integrated implementation of activities.
Committees which are represented on the Access to Justice for All Task Force can disseminate minutes of committee meetings to all Task Force members. Highlights of Task Force and committee meetings could also be communicated through a newsletter and/or through the State Bar Website. A biennial meeting relating to the objectives of Access to Justice for All will provide a mechanism for input from State Bar members and other constituents on the implementation of the objectives. Such a meeting will also provide a natural forum for reporting progress, which can then be summarized in a written work plan. Invitations could be extended to charities which work heavily with poor and low income populations and with individuals who have the most frequent contact with court intervention in local communities.
This objective recognizes that the State Bar can be a leader in developing other strategic alliances with non-legal social services providers in addressing the needs of those in greatest need. It also recognizes that coordination and integration with all State Bar entities can provide a synergistic enhancement of Access to Justice for All objectives as well as those of the other entities. For example, Goal IV (Bar Professionalism), may address comprehensive programs to ensure attorney and judicial competence, which could then result in an increase in the quality of legal services provided. Similarly, efforts to assist with legal education and legal self-help, as well as with pro bono services for the poor, can be helpful to the Image of the Profession Task Force goals.
Increased Funding For Legal Services. Inherent in the concept of the availability of non-profit legal services providers is the need for funding to support the legal staff who actually provide legal services. Federal funding has been the largest resource used in the last 30 years. It is still the most significant, and efforts to maintain it are essential. However, legal services funding can and does come from a number of sources: federal, state, or local government programs (e.g., Legal Services Corporation funding; Filing Fees funding); legal public sources (e.g., Interest on Lawyers Trust Account [IOLTA] funds); general public sources (e.g., United Way, direct donations). However, to say that any of these sources is secure forever is to ignore political and economic realities. Federal LSC funding was cut by 30% in 1996, and is still threatened. In Michigan, a line-item veto in 1996 reduced Filing Fees funding for the year by over $650,000, and the $2 million in additional filing fees funding for legal services scheduled to take effect in 1998 has been threatened. Based on what has occurred in the past two years, it is easy to see that any funding plan must be comprehensive and provide for a diversified funding base to maintain the provision of legal services to the poor.
A plan to increase funding for legal services will be more effective if it is coordinated and is led by the State Bar. It has been learned through current efforts at raising capital for legal services that the State Bar must play a lead role in fund raising efforts, both in coordinating efforts as well as in contributing resources. In addition, involving large law firms in an integrated giving plan will be more effective than asking them for funding or services on an ad hoc basis. Similarly, coordination is required in advocating for governmental funding because of the constant change in the political environment, particularly with Michigan's term limitations. A comprehensive plan to increase funding might include an annual fundraising campaign; use of dedicated fundraisers; development of a foundation for receiving trusts and other charitable donations for legal services to the poor; and requesting bequests for this service from estates, corporations, or others.
Ensure Quality Representation. Another underlying assumption of this objective is that meaningful access to justice is not complete if it does not involve quality representation to those in need. The same quality of assistance should be available for those who cannot pay for services as for those who pay, particularly where critical rights such as custody and housing are concerned. This can be accomplished through a number of means. The State Bar's emphasis on professionalism encourages attorneys to obtain and maintain competence in their areas of practice. Training programs can assist in ensuring that lawyers have the skill they need in a particular area of the law. In addition, innovative service delivery methods and new technology can assist in improving efficiencies and effectiveness, particularly in the high-volume legal services practice. For example, by making standardized forms and documents easily available electronically and by using document-generation software, legal services organizations can improve consistency of service and reduce time requirements for providing service, thus making more resources available for legal service delivery within existing systems. Also, a possible delivery system innovation is the use of a hotline or unified telephone intake system for simple legal advice and referral so clients could solve problems directly or find non-lawyer resources to resolve their problems. Many programs which have established hotlines have found that they have been able to increase the number of "brief advice" and "brief service" cases without reducing the amount of full service assistance provided.
Maintaining the Full Range of Legal Services. Quality representation would include the availability of a full range of legal services where needed. For example, policy advocacy may assist in writing public policies which avoid the need for impact litigation involving large numbers of clients, ultimately reducing the total demand on the legal system.
Expanding Access to Subsidized Legal Services Beyond the Poor. Concern was expressed that beginning the process of expanding access to subsidized legal services beyond the needs of the indigent could divert already scarce dwindling resources from those who are at greatest risk, who have least access to the civil court system, and whose needs are growing under current law and economics. However, the exploration and development of technology self-help tools and innovative delivery methods that will benefit higher income levels will also benefit those in greatest need. In addition, this strategy of expanding free or reduced-fee legal services beyond the very poor will benefit the near poor or moderate income population. These are often single heads of households who do not qualify for social services but need legal counsel regarding such things as child support, medical benefits, or consumer problems. In many cases, the availability of legal services can keep them above the poverty line and prevent the need for a higher level of legal services, thus reducing the demands on the system. Other beneficiaries include victims of domestic abuse, the elderly, and the mentally ill. So a focus of this nature can potentially reduce the on-going demand for free legal services as well as enhance the services available to the poor.
Willingness of Attorneys. There is a willingness among many attorneys to provide pro bono services. Partial results of a survey (Pro Bono Survey) conducted by the Access to Justice for All Goal Group in coordination with the State Bar Pro Bono Involvement Committee reveal that there are a lot of pro bono services which are provided but which are not reported. Almost two-thirds of those responding indicated that they provided pro bono services during 1996, yet only 17% indicated that they were a member of a formal pro bono panel of a local bar association or a legal services program which referred cases to them. Some 7% of the respondents asked (on their survey form) to become members of a pro bono panel.
A federal judge reported that, on numerous occasions, he asked lawyers to assume the prosecution or defense of a civil action for a pro se indigent litigant, and was not refused even once, even in cases where the potential liability was thin and the damages small. Representation was undertaken even by lawyers who seldom, if ever, appeared before the judge, so the willingness to undertake pro bono representation cannot be explained away by the fact that a judge before whom they may appear was making the request.
Partial Pro Bono Survey results indicate that the highest-rated motives of attorneys for providing or considering pro bono work are that it gives them a sense of personal satisfaction, that it is part of their professional responsibility, and that they want to support their state or local bar association, legal services provider, or other organization or cause. This may suggest that recruitment efforts might focus on the personal satisfaction and professional responsibility motives rather than on benefits or recognition the pro bono attorney might derive (the latter motives scored very poorly).
Quality Representation. As in legal services programs, pro bono efforts need to have a means of ensuring quality representation. Pro bono services to indigents might be improved by making legal services training events available to pro bono attorneys. Local legal services organizations could disseminate information about the training and possibly help cover the cost of training for pro bono attorneys from their area. In addition, other support functions can be put into place to assist pro bono attorneys, such as the availability of forms and information electronically, the availability of malpractice insurance, the availability of support staff, and availability of pro bono transcription services. It is one thing to ask lawyers to work for nothing, and another to ask them to pay for the privilege. Also, it is unfair to give conscientious lawyers the Hobson's choice of doing less than their best or advancing money for experts or depositions out of their own pockets.
Preliminary Pro Bono Survey data seems to indicate that pro bono services in Michigan might be increased by expanding options for attorneys in work environments that are not conducive to pro bono work. Some 3% of those who gave reasons their pro bono was limited indicated they had no office support or no insurance; 11% indicated they were not in private practice; and 30% indicated they had time limitations. To the extent these attorneys could be assisted with malpractice insurance and support services, or with alternative methods of providing pro bono services, pro bono capacity might be expanded. For example, pro bono attorneys could be utilized for pro se clinics (coordinated through the local lawyer referral program or the local Legal Aid office) regarding populations which do not economically qualify for legal assistance and do not have the funds available for one-on-one attorney services. Also, large law firms could be recruited to handle complex litigation that cannot be handled by legal services programs because of expected heavy time commitment or because of funding or other restrictions.
Linking Clients with Pro Bono Attorneys. The availability of a system to match people having legal needs with the attorneys who can serve them is important in pro bono work. Less than 30% of the Pro Bono Survey respondents who provided services in 1996 reported that their pro bono case(s) came from a legal services pro bono program. Generally the link was made through some other source (50%), or simply at the point of attorney-client contact, at which point the attorney decided to take the case. Of those who received their pro bono client through another source, 13% indicated referrals came from a local or state lawyer referral and information service, 13% from a local bar association, over 50% from churches and community organizations, and around 60% from friends and acquaintances (survey respondents could indicate more than one referral source). A strategy of enhancing referral information systems might increase the amount and accountability of pro bono services. Almost 7% of respondents to the Pro Bono Survey asked to have their name referred to a local pro bono panel. More effort should be applied toward having a firm designate one of its partners as the firm pro bono coordinator, thus making pro bono work an integral part of the annual work plan for the private law firm and easing the referral and acceptance of pro bono cases.
The partial Pro Bono Survey data indicates there may be some ambiguity about what is considered pro bono work. Only half of the estimated number of cases were for civil legal services to the poor, consistent with the Michigan Pro Bono Standard approved by the State Bar Board of Commissioners. The other half included legal services to moderate income people, cases undertaken on the basis of other selection factors, or criminal legal services. Survey respondents estimated that 10% of their pro bono time was spent in service on a non-profit board of a community organization, rather that in providing legal services. Some 35% of those who provided services in 1996 indicated that their decision as to whether a case was a pro bono case was "when a client can no longer afford to pay my fees." Consequently, the focus of this objective is directed toward a greater understanding and participation in the Michigan Pro Bono Standard. While adoption of the ABA Standard would increase hours to 50 rather than 30, the ABA standard can be viewed as a long-term strategy. In the short term, however, concern was expressed about increasing the aspirational goal when only a small number of lawyers meet the existing standard.
Reporting of Pro Bono. Reporting of pro bono activity is an important part of assessing progress in reaching this objective. The Goal Group was encouraged by the volunteer response to the Pro Bono Survey by over 15% of the recipients. However, a caution flag was raised about mandatory reporting of pro bono services and donations. Efforts to compel pro bono service or mandate reporting of hours or dollar amounts contributed could be counterproductive, because a significant number of lawyers may object to any compulsion to perform pro bono work. Court-required mandatory reporting could bring heated debate (such as 1993 ABA House of Delegates floor debate regarding the 50 hour pro bono goal) and is unlikely to increase the amount of pro bono work performed in the state. Nonetheless, court-required reporting should be examined. In the event Court-required reporting is seen as undesirable, having the flexibility of voluntary reporting will still permit some means of collecting information about pro bono activity without creating a counterproductive environment for pro bono.
Role of Judges. Judges can play a key role in promoting pro bono involvement of practicing attorneys, even though they themselves cannot provide pro bono service and cannot actually recruit attorneys. It is important to determine ethically how far judges can go in recognizing, encouraging, and recruiting attorneys for pro bono work, and to find ways in which judges can encourage pro bono efforts.
Pro Bono's Relationship to Lawyer Referral and Information Services. Concern was expressed about the combination or multiple use of the lawyer referral and information services. For example, if the referral service is used to promote pro bono services, an erosion of both the full pay referral objective and the voluntary service of pro bono attorneys could occur. The ABA Peer Assistance Review (PAR) Report following the visit by PAR representatives to the State Bar's Lawyer Referral Service in November of 1995 (report dated January 31, 1996) recommended that these objectives are best left separate. The report also urged caution in attempting to coordinate the function of a LRIS and a Pro Bono Program, because some local referral services have too few attorneys already and excessive pro bono requirements might cause some attorneys to leave the panel. Additionally, the public must be educated that there is a difference between a lawyer fee referral and a pro bono referral so that they are not surprised when the referral attorney charges a fee. However, the coordination of activities between lawyer referral and information services and pro bono referral services should not be precluded, since a coordinated effort can enhance the efficiencies of each. Additional study should be made of the current scope and effectiveness of public service lawyer referral systems and the benefits of coordination among all types.
Pro Bono Representation for Underserved Populations. Disparities in access are sometimes created by geographic distances or special needs. Pro bono attorneys in rural communities or with special skills can expand the reach of legal services offices to those in rural areas or with special needs.
Recognizing Pro Bono Efforts. Although Pro Bono Survey respondents indicated that recognition was not a major reason they do pro bono work, yet recognition by the State Bar Honor Roll and local bar associations is part of the fabric of pro bono services network and should not be reduced or eliminated. It was suggested that pro bono services by attorneys should be recognized at community events every year as well as in state bar journals.
Practice Standards. Since each county adopts its own indigent defense delivery system, standards in this area are essential to assure uniform, high-quality indigent defense services to the citizens. Many counties already have assigned counsel lists and rotate the lists to assure that competent counsel is appointed.
Standards (e.g., ABA, NLADA models) are needed for the selection and payment of counsel in all criminal cases and standards for selection and appointment of counsel in juvenile, mental health, misdemeanor and felony appellate matters. The State Bar Assigned Counsel Standards Committee is recommending the adoption of assigned counsel standards (which cover criminal and juvenile cases) to the Representative Assembly in April, 1997. The Michigan Appellate Assigned Counsel System administers a set of regulations for appointing appellate counsel and tries to enforce 20 minimum performance standards approved by the Michigan Supreme Court.
In addition to assignment and practice standards, guidance is needed to assist in easily determining when a client is indigent and eligible for service.
Compensation System. The assigned counsel compensation issue is critical in determining whether well qualified lawyers will take assignments and whether those who do take assignments have the motivation and opportunity to do quality work, notwithstanding training or performance standards. There are still assigned appellate attorneys working for hourly rates set 20 years ago. It was suggested that compensation systems include compensation levels sufficient to cover overhead costs and the price of contracts. While "assigned counsel" is in fact a broad enough term to include these entities, there is a tendency for people to think only of individual private assigned counsel when they hear that term.
Since each county adopts its own indigent defense delivery system, there are disparities in compensation systems. Moreover, there is no commitment by any county or the state to pay adequate rates for assigned counsel. The federal standard in Detroit ($75 an hour) is not met in any jurisdiction within the state, and woefully inadequate funding is still in place for trials and appeals in many jurisdictions. Many lawyers simply cannot afford to accept assignments at current compensation rates.
Cost of Overhead. It was reported that lawyers subsidize the assigned counsel system out of their pocket because the fees are so low. Some lawyers must work out of their houses, go without malpractice insurance, be without access to libraries, and not be able to afford their own working libraries. A statute in Michigan requiring that counsel be appointed in felony matters requires that "a reasonable fee be paid," but there has never been a determination as to what constitutes a reasonable fee. It was suggested that the State Bar petition the Supreme Court to define what a "reasonable fee" means. It was also suggested that a rule should be adopted that reasonable fees should cover the lawyers' overhead and that the amount be independent of paying for expenses such as, experts, investigators, travel and other out-of-pocket expenses necessary for the defense of the case. This is the standard in the majority of the states in America.
Assigned Counsel Contracts. It was suggested that the ABA standard on contracts for indigent defense be adopted if contracts are to be used. Open-ended contracts to handle all the felonies in the jurisdiction for a set sum, without an escape clause in the event that major murders occur, is a prescription for disaster. Creating an environment in which corners may be cut to meet the contracts can significantly affect the quality of service.
Conflicts of Interest. Conflicts of interest create a compensation issue. It was suggested that the county be required to pay the conflict lawyer out of a separate fund and not out of the contract money. If the lawyer with the contract must pay the conflict lawyer out of his or her own fees, there is a disincentive for recognizing a conflict. It was suggested that the State Bar adopt the standards from the ABA on the letting of contracts in the indigent defense area.
Independence of Assigned Counsel from Judiciary. Concern was expressed that a point critical to the development of any system of indigent defense is protecting the independence of counsel. Undue involvement by judges in the selection and payment of assigned counsel could create serious problems if they pick the attorneys to handle individual cases, select the firms with which they contract to handle large batches of cases, or can cut fee requests of appellate attorneys arbitrarily (e.g. Oakland County overhauled its appointment process for trial counsel to address this issue).
Training and Resources. Availability of training and other resources is also a critical component of assuring quality of representation. While electronic bulletin boards are useful, other examples should include investigators and expert witnesses. It was suggested that the purpose of providing these resources is not just to help counsel meet their own performance standards, but to better equalize the resources of the prosecution and the defense. Funding for training is still lacking. The state currently supports prosecution training through the prosecutor's institute, but pays only small amounts for defense counsel training indirectly through the SADO and MAACS offices and through Michigan Justice Training Council grants. One recommendation is that to be eligible for appointment, attorneys must receive at least ten hours of continuing legal education a year in criminal or juvenile law. The client cannot select their attorney, so the state has an obligation to assure counsel maintains and improves their skills.
Changing the culture to increase the willingness of attorneys to handle assignments is a positive strategy, but the most effective way to do this is by increasing fees. Other methods include treating assigned counsel with respect and promoting high quality work in assigned counsel cases. Also, it is feared that in the public mind, lawyers tend to be associated with their clients. Because assigned counsel are often individual practitioners, it is difficult to change their image so that they can be viewed as a more legitimate piece of the system, equivalent to the prosecution.
Broadening "Right to Counsel" in Civil Cases. It was recommended to seek the extension of the right to assigned counsel to civil cases in which "critical rights are determined." Currently, a misdemeanor can be considered a "critical right" mandating assigned counsel, while the potential loss of child custody is not. It was suggested that assigned counsel is a minimum effective method to help very poor clients have access to some representation. It was suggested that assigned counsel is also needed where changed welfare laws impose negative action (case closure) and may have a domino effect in causing the poor to become homeless, hungry, and without medical services, as well as in the rising instances of young persons (age 16 and under) being prosecuted for behavior in schools or even under laws for truancy and other nonviolent offenses.
It is not necessary to experiment with ADR because there are many existing ADR programs in Michigan. The Courts need to recognize these entities as a logical extension of the justice system. Bar associations can find productive ways to support effective ADR. Kalamazoo is one city that has had a Dispute Resolution Center for several years and is serving the community very well.
Some hold that arbitration is becoming a disfavored technique, possibly as contested and even more protracted and costly than litigation. Because exotic hybrids of ADR (mini trials, summary jury trials, etc.) are appropriate for a relatively limited type of cases, the focus may need to turn toward "real mediation." Many (particularly businesses and government agencies) are concluding that costs can be contained, disputing time abbreviated, and mutual benefits obtained by greater party participation in reaching resolution. The State Court Administrative Office (SCAO) established 28 Community Dispute Resolution Programs around the state to assist clients in resolving their disputes. Approximately 10,000 people per year reach agreements they created through "real mediation" at these centers. A two-year study of the Community Dispute Resolution program (CDRP) indicates that parties are able and willing to reach resolution of their own dispute in many instances.
"Working to change the culture" to resolve disputes short of court is an abstract and complicated notion, particularly in light of the current system requiring parties to give up their dispute to some unknown party (arbitrator, magistrate, or judge). However, there is a viable starting place for lawyers--in schools. For example, the Ingham County Bar Association peer mediation program (described in Nancy Wonch's Director's Dialogue article in the February, 1997 Michigan Bar Journal) provides a mechanism by which people could begin to understand and practice constructive dispute resolution from a young age. In this program, attorneys facilitate the teaching of an ADR mechanism to elementary school children as an alternative to violence in conflict resolution.
Apart from violent assaultive cases or drug cases, SCAO has yet to identify any particular type of dispute which cannot be facilitated by applying real mediation. Five probate courts in Michigan have juvenile mediation programs, five are implementing mediation for contested adult guardianship matters. Possible additional areas for mediation include: special education, licensing through Consumer and Industry Services, US Department of Agriculture, EEOC complaints, matters arising under the Americans with Disabilities Act, service complaints involving local community mental health agencies, and matters arising out of the sale of a home.
For the most part, the CDRP is a voluntary remedy. Absent the consent of the parties, courts have little discretion to refer cases to non-lawyer peers.
Current research in mediation is testing when third party intervention should take place in the life of a case. To be effective, the question is when should it occur to maximize benefits to the disputants (e.g., discovery, after MCR 2.403 evaluation)? Mediation practitioners have found that mediation is most effective the earlier it takes place. As litigation takes its course, parties entrench in positions, expend considerable emotional and financial resources, and are less able to recognize viable options for resolution.
Subject Matter Dispute Resolution. High volume centers for special cases have some appeal because their specialization may permit expedited resolution of cases. However, SCAO is not aware of any study indicating that parties are better served by specialization. The expertise of the mediator is the mediation process, not the subject area. The mediators rely on both the parties and their attorneys for technical background or legal analysis when necessary. However, it clearly appears to benefit the mediator to have some degree of training in particularly complex subject areas (e.g., family matters, special education, agriculture, etc.). Training could include exposure to the main bodies of law governing an area (e.g., federal act or regulations), familiarity with jargon, and the processes that will take place should the dispute not be resolved in mediation.
Concern was expressed that promoting subject matter dispute resolution in high volume cases could promote the value of expediency over the value of justice. For example, dispute resolution in family law matters can be very dangerous and unjust when domestic violence is involved, so careful thought should be given to this approach. Also, there is a sentiment among lawyers experienced in housing cases that housing cases are not suitable for mediation because of the frequent disparities in legal sophistication and in bargaining power between the parties.
Additional ADR Efforts. Additional potential actions to promote ADR might include: mandate the teaching of collaborative dispute resolution process in law schools. Require demonstration of knowledge of collaborative dispute resolution process in the Bar exam. Develop litigant orientation programs which help set appropriate litigant expectations of their court experience and outline other dispute resolution processes. (This strategy is currently under development in Washtenaw County). Enhance funding of mediation initiatives. Assist lawmakers in drafting collaborative dispute resolution processes in agency procedures (mediation has already been written into Michigan Department of Education, Mental Health, and Consumer and Industry Services procedures). Develop public education materials which show the lawyer as active in collaboratively resolving disputes, not just as providing adversarial litigation services. Promote collaboration among the ADR service providers and teaching institutions in the state (e.g., Michigan Judicial Institute, law schools, ADR Section of the State Bar, Institute of Continuing Legal Education, Community Dispute Resolution Program, etc.) Currently, there is little, if any, collaboration in developing alternative dispute resolution techniques and processes in this state.
While the increased use of ADR mechanisms is seen as a valid goal, concern was expressed that abuses exist. For example, non-lawyer ADR services are reported soliciting litigants away from the courts, saying that the litigants do not need a lawyer or the courts, when it can be done by the ADR service for much less cost (litigants are asked to fire their attorneys and agree to binding mediation). If the case is settled, the ADR service prepares the necessary court documents to dismiss the lawsuit and/or finalize the judgment. Other than unauthorized practice of law restrictions, these non-lawyer ADR groups are not subject to any regulations or educational requirements. It is important to ensure that the interests of the public are protected in any strategy that encourages ADR.
Exploring this area of access to justice is not without its concerns, for both the legal profession and the public. Relaxing standards can increase opportunities for abuse by unregulated individuals. For example, it was reported that there are individuals who are assisting low income people and senior citizens in preparing living trusts for estate planning purposes, at a cost of $7,000 or more. A $30 "trust kit" software program is used to prepare the trust, with no analysis of the individual's personal needs and no review of tax consequences; yet the person purchasing the documents assume that he or she is getting sound legal advice and analysis. When the person dies, it is discovered that the tax consequences are negative or that additional probate expenses are necessary to undo the harm. These comments are not meant in any way to question this objective--any system designed to assist pro se legal work is subject to misuse. But care should be taken in implementing any tactics and strategies related to this objective.
User-Friendly Justice System: The Use of Self-Help and the Need for Assistance. A user-friendly justice system is essential to Objective F. Cooperation among all court personnel (judges and staff) and the local bar associations as well as private attorneys and legal services staff is required to develop and use self-help tools appropriately. For example, concern was expressed that working toward a more user-friendly justice system is difficult in some locations because court personnel do not cooperate effectively in the use of form pleadings (e.g., domestic cases) and self-help documents (e.g., housing cases).
However, there are some bright spots. It was noted that in one probate court there are four general areas where the majority of the pro se petitions are filed: 1) step-parent adoptions; 2) adult guardianships and conservatorships; 3) minor guardianships; and 4) change of name. Staff assist by providing the necessary forms, giving a hearing date, sending a notice of hearing to interested parties, preparing a proof of service, and typing up and sending out the final orders. Most of these people would not be able to afford an attorney and therefore would not be able to use the court system except for court clerk assistance. In this county, there has never been an attorney complaint to staff or to the Court about the services provided by the court clerks. Attorneys recognize, respect, and support the assistance given, and sometimes use it themselves.
Uniform, Simplified Forms. The State Bar Unauthorized Practice of Law Committee (UPL) has consistently gone on record supporting the notion that court forms should be simplified to allow individuals to more easily prepare their own simple court pleadings without the assistance of a lawyer. Statutory wills, living wills, and construction lien forms are examples of simplified forms which have assisted individuals in utilizing legal rights without the need for hiring a lawyer. However, they caution that a problem occurs when the individuals utilizing the forms need assistance in preparing the forms. For example, the Personal Protection Order (PPO) allows victims of domestic violence to obtain a court order addressing the violence, but many people do not know how to fill out the PPO form and need certain advice of a legal nature. Court clerks have been told not to dispense legal advice, but they often provide assistance in completing the form. New legislation has been proposed to allow non-lawyer advocates to assist individuals in the preparation of PPO petitions, including the dispensing of legal advice. The UPL Committee feels that this expansion is dangerous, since there would be no uniform training or instruction for PPO advocates.
The SCAO has a permanent forms committee, including many lawyers and court personnel.
Reservation was expressed about possible proliferation of non-lawyer providers who are not supervised by attorneys, likely resulting in lack of effective legal counsel and advice. Low income persons seeking help should not be subjected to legal services less valuable or less effective than a paid client would receive. It was recommended that the State Bar adopt standards requiring the providers to be trained at a level acceptable to the State Bar. Such standards and regulation would facilitate the lawyer members of the Bar in recognizing these non-traditional providers as an acceptable and non-threatening alternative to direct legal assistance. While the law should be more accessible to lay persons, it is feared, that substantive technicality has been institutionalized to the degree that specialized training is imperative. Consequently, if non-lawyer advocates are to become part of this strategic approach, a heightened emphasis must be placed on promoting their training.
Courts, on almost a daily basis, wrestle with the pro se litigant issues. On one hand a judge may be committed to allow a pro se litigant to proceed with a non-lawyer assistant to make the case move faster or to help the confused litigant. On the other hand, courts remain concerned that some pro se litigants are getting inaccurate or incomplete advice from non-lawyer assistants which may be affecting the justice that is being received by the litigants. The problem is compounded by the fact that independent legal assistants are not licensed, regulated, or controlled by any entity. These issues are not oriented to protecting the attorneys' turf, but rather are directed toward protecting the public from incomplete, inaccurate, and improper legal advice being dispensed by individuals not properly trained. Although it is a valid goal to increase access to the legal system, it is an unfortunate byproduct that there are unregulated individuals who are waiting to take advantage of this goal.
Restructuring Courts to Accommodate Pro Se Issues. It was recommended that the State Bar should support legislation to increase the dollar limits on the use of the small estate proceedings under the Probate Code and on the use of Small Claims Court. About one-third of all probate matters in Wayne County are handled pro se. Permitting increased use of a simplified procedure would make the process easier for non-lawyers.
It was suggested that changes in the court's jurisdictional subject matters and the enhancement of subject matter jurisdiction for other courts could work to the advantage of persons having difficulty accessing the courts (e.g. increased access to the District Court would result from increasing statutory limits for access). It was suggested that more referee type systems could be employed, using lawyers in quasi judicial functions. Use of mediation and dispute resolution services (coupled with public information about the availability of these services) could also be encouraged.
Removing certain issues from court jurisdiction should be clearly limited to cases where significant rights are not being determined and where the work of the court is purely administrative. Otherwise, there is a fear that this strategy will be used to limit poor persons' access to the courts (e.g., through proposals to eliminate judicial review of Social Security disability determinations).
Additional specific strategies might address developing educational materials in the form of brochures; automated telephone systems; on-line computers; a community-based "services" information bulletin board or court service center; and informational materials concerning local court process and procedure.
Framing the Public's Expectations of the Court Experience. As important as pro se litigants' obtaining information about the legal process is the need for pro se litigants to have realistic expectations of the outcomes available through the legal process or some other process (e.g., mediation). A growing number of resources is available identifying how to engage in the legal process. Very little has been done to educate the public on what they can realistically expect of their court experience. Many have exaggerated expectations about their prospective court experience. With 30 matters simultaneously scheduled, many small claims litigants nevertheless expect a full day hearing with a judge. Persons receiving default judgments routinely expect to be paid on the spot or expect that the defendant will be picked up and prosecuted for non-payment. Most expect to win, not realizing that in litigation, arguably at least half the litigants will lose and in many cases all parties believe they have lost. Most gear up for and expect to go to trial, yet 97% of all civil matters settle without trial.
Expanded strategies might address educating the public about what outcomes can be realistically expected from the adversarial litigation process and their "day in court." A companion education component would provide information about alternatives to litigation.
This objective is not independent of other objectives and strategies. For example, the use of technology to assist with the delivery of legal services can at the same time serve as a delivery mechanism for legal information. The pilot project underway at Legal Aid Bureau of Southwestern Michigan to establish kiosks in courthouses and community centers where legal information and forms can be accessed is one example of a project that can disseminate legal information.
This objective can also integrate with Objective C's strategy of finding non-traditional ways for attorneys to provide pro bono services, through such things as legal education and seminars for the public. Local universities and community colleges can also provide a valuable service by identifying law students or paralegals who can receive course credit to give community seminars.
While most objectives of the Access to Justice for All goal have an inward focus calling for action within the established legal system, this objective recognizes external networks or systems as potential allies in getting legal information and assistance to those who need it. Public libraries are poised to provide avenues to people in need, since the provision of information and service are the cornerstones of their very existence. In addition, the Center for Civic Education Through Law has an extensive library of resource materials and can assist in developing materials to disseminate easy-to-understand legal information.
The State Bar Website is another avenue to make legal information available for the public. All income levels would have access to this information--direct computer access by moderate and high income populations and low income access through public resources and other agencies and individuals. The State Bar Website can also provide easy-to-use links to other legal information Websites, and can become a focal point for serving not only the members of the Bar, but the public at large--creating an additional benefit of improving the image of the profession.
A number of legal aid programs which have established hotlines or unified telephone intake systems have learned that it costs as much to tell a potential client "no" (that the program cannot serve the client) as it does to provide the brief advice that the client needs. Central intake systems represent a fundamental advance in accessing legal and other remedies for people of all social strata throughout Michigan. A strategy to study and develop such systems may help assure that adequate resources are committed to it and may promote cooperation between the State Bar's LRIS and the local bar associations. Increased coordination of State Bar and local bar resources is a critical component of improved access. Because telephone access is not limited to particular boundaries, legal information and referral systems need to be coordinated and territorialism needs to be reduced. However, technology is now available to permit the use of a single 800 number that would ring into a local LRIS office near the location where the call originated and to permit transfer of a call to another office without requiring the client to hang up and call the other number.
Caution is raised about linking referral systems with pro bono systems (see comments under the Pro bono Objective), but linking such systems to a seamless web where the clients' brief needs can be easily met and the clients' more extensive needs can be referred to a private attorney or legal services provider who can handle extended services.
Equipping lawyer referral and information services with the ability to provide referrals to legal as well as non-legal entities will expand the LRIS's ability to truly serve client needs and improve the image of the profession. Concern was expressed as to whether any existing lawyer referral and information service has the capacity to make effective non-legal referrals, so this is a capacity that would need to be studied and developed.
The tracking of information will be a key factor in understanding existing or developed systems and improving them. The State Bar LRIS has initiated surveys designed to measure user satisfaction with the LRIS and to identify ways in which it can be made more effective. Legal services organizations track key client type and service information. However, information reporting is often fragmented. More coordinated reporting of information will assist in grasping a true picture of the activity that actually takes place, so system-wide improvements can be made.
It has been asserted that anti-trust issues may arise where the coordination of state and local bar referral service resources involve the delineation of "service territories" between the services (i.e., effectively, non-competition agreements). This issue is now being studied. However, owing to the fact that coordination of resources involves much more than this issue, relevant coordination efforts should be continued. It is possible that centralized advice and referral resources could be part of the solution.
Many legal services programs feel it is part of their function to provide a public education component, thus making legal information available to people to whom they cannot otherwise provide service. It was suggested that private law firms build in a public service component (community outreach and legal education) similar to that developed by legal services programs. It was noted that a major stumbling block in promoting this objective will be to convince attorneys and large law firms that the dissemination of information about access to legal services is important to the general purposes of the profession as a whole. It was suggested that many attorneys do not feel that it is necessary to provide these informational resources to the general public because they have established practices that do not rely upon this network for case referrals or legal business.
Options for making legal
services readily accessible to clients include exploring the feasibility
of a statewide prepaid legal insurance plan. Concern was expressed that
(unless adequately funded, like the UAW plans), pre-paid plans offer free
information and little else, with little or no benefit for trial. In addition,
there will still be clients who cannot pay the up-front cost of legal services
through a pre-paid plan, and will need to have free legal services available,
so it is important to ensure that even though information and referral
services might be available, there are still those facing a legal situation
who will need the full range of free legal services.
2. As a matter of practice, matters relating to access to justice should be referred to the Task Force for evaluation and comment before presentation to the Board of Commissioners.
3. The State Bar should institute systems to assure that all relevant State Bar entities are regularly informed of Access to Justice for All activities (e.g., broader dissemination of Task Force minutes), including local bars and others when relevant, and that minutes of committees which are represented on the Task Force are distributed to all Task Force Members.
4. The Task Force on Access to Justice for All should biennially produce or update a written work plan to achieve the Access to Justice for All objectives and strategies, taking care to assure integration with implementation of the State Bar Long Range Plan and the Michigan Plan for Legal Services as appropriate.
5. The State Bar should biennially hold a statewide conference on access to justice to report on its Access to Justice for All efforts and to seek input from the public and legal community on the Access to Justice for All goals and objectives.
6. Encourage the development of community partnerships and strategic alliances with non-legal social services providers to produce systemic change, particularly in addressing the needs of low-income clients.
7. Promote commitment among all State
Bar entities to support access to justice efforts through increased coordination
and strategic partnerships (e.g., access to justice efforts which are helpful
to Image of the Profession Task Force goals).
2. Continue State Bar advocacy in support of governmental funding for civil legal service organizations serving the indigent.
3. Promote the development of innovative methods to deliver quality legal services at affordable prices to more citizens, thus benefitting all groups.
4. Promote the development, use, and replication of technology, innovations, and economies of scale (e.g. e-mail, hotlines, integration) when that would achieve increased efficiencies and effectiveness of services.
5. Promote the availability of the full range of legal services for indigent clients.
6. Expand access to subsidized legal services
(free or reduced fee, as appropriate) beyond the poor to the near poor,
less affluent moderate income, and to special populations with severe access
obstacles. Without reducing the emphasis on the indigent, begin this process
even if 100% of indigent needs not yet met.
2. Work to increase the amount and quality of pro bono services provided to low income persons and develop special strategies for serving low-income clients in rural areas and special underserved populations.
3. Work to increase the resources and training available for the use of lawyers performing their services pro bono, such as experts and court reporters for depositions, to assure quality pro bono representation.
4. Encourage the development of innovative intake and referral systems that provide more efficient client service and utilization of pro bono attorneys. Coordinate and integrate as appropriate.
5. Coordinate and integrate pro bono work with the work of local legal services providers; utilize appropriate technology to improve the efficiency of the pro bono referral process and the delivery of pro bono services (e.g. electronic bulletin board).
6. Promote universal participation in the Michigan Voluntary Pro bono Standard.
7. Promote reporting of pro bono services and financial donations, and explore court-required reporting of the same.
8. Develop pro bono opportunities for lawyers in large law firms, for the handling of complex litigation cases, and for the handling of cases that cannot be adequately handled by local legal services providers due to funding or other restrictions.
9. Develop pro bono opportunities for non-litigators and lawyers not in private practice, as well as work to expand ways judges can promote pro bono.
10. Distribute to local bar groups and agencies effective ways to quickly select and receive cases to get to pro bono attorneys who are trained and ready.
11. Increase methods by which the organized bar and society at large recognize and reward pro bono attorneys.
2. Adopt appropriate practice standards for assigned counsel.
3. Work to change the culture to increase willingness of attorneys to participate as assigned counsel.
4. Assure that training and other resources are available to help assigned counsel meet the standards (e.g. electronic bulletin boards, local trainings).
5. Advocate for an adequate compensation system to promote quality of assigned counsel representation.
6. Develop or update effective client eligibility standards and easy ways to make the determination of client eligibility.
7. Seek expansion of assigned counsel to other
venues beyond criminal (e.g., friend of the court, juvenile, probate)
where critical rights are determined (e.g., custody cases, cases involving
important rights for families and for children, eviction cases, etc.) and
with special populations.
2. Explore ways in which the State Bar can assist in furthering Alternative Dispute Resolution, such as convening a statewide conference of ADR and other leaders.
3. Promote collaboration among the Alternative Dispute Resolution service providers and teaching institutions in the State, e.g., Michigan Judicial Institute, law schools, Alternative Dispute Resolution sections of the State Bar, ICLE, community dispute resolution programs, etc.
4. Promote increased awareness in participation by individuals in resolving their own differences especially through locally based programs (such as Community Dispute Resolution Centers where individuals resolve their differences before going to court) and early education initiatives (such as student/peer mediation programs in the schools).
5. Collaborate with non-lawyer peers to develop Alternative Dispute Resolution processes for a wide range of dispute both within and outside of court.
6. Promote the use of mediation, facilitation, or other collaborative dispute resolution techniques early in the life of a case in order to streamline discovery, encourage settlement discussions, and to attempt early resolution.
7. Promote the training of third party neutrals in substantive issue areas to compliment their mediation training.
8. Encourage the teaching of collaborative dispute resolution processes in law schools.
9. Help set appropriate litigant expectations
of their court experience and outline other dispute resolution processes
through such mechanisms as litigant orientation programs.
2. Promote and develop funding for the study, development, and improvement of programs that assist litigants in representing themselves.
3. Encourage simplification of the forms and procedures and further the development of effective self-help tools (e.g. PPOs, statutory wills, living wills, and Arizona-type documents) and seek ways of making legal assistance available for self-help remedies (e.g. for the completion of such forms).
4. Explore methods to encourage unbundled (i.e. discrete task) legal services to support simplified forms, procedures, and self-help tools.
5. Promote increased use of and new ways to work with non-lawyer advocates where appropriate, and promote their training and appropriate regulation.
6. Explore improving small claims and probate court and/or developing other simplified courts for cases of low monetary value.
7. Study whether selected issues could be removed
from court jurisdiction.
2. Promote the use of information technologies to disseminate legal information to the public.
3. Expand and improve the ability of all types of public service lawyer referral and information systems, including legal aid, pro bono and public service lawyer referral systems, to provide quick, simple legal information directly to callers who do not need an attorney referral for more complex legal assistance.
4. Expand the ability of all types of public service lawyer referral and information systems to refer callers to non-legal agencies (e.g., social services, community agencies, etc.)
5. Coordinate the referral of clients with a legal problem to legal aid agencies, pro bono programs, and public service lawyer referral and information systems as appropriate.
6. Explore methods to study and track information about or the type, amount, use, and effectiveness of public service lawyer referral and information services.
7. Promote the development and improvement of local public service lawyer referral and information systems and improve coordination with and support by State Bar lawyer referral and information services, including state and local services for persons able to pay a reasonable fee.
8. Expand public education programs on understanding legal rights and responsibilities, and on finding affordable legal assistance sources that are targeted to low- and moderate-income people.
9. Explore the feasibility of a statewide prepaid legal insurance plan to help make legal representation available to all.
10. Notwithstanding the availability of information and
referral services, assure that free legal services are available to all
low income persons facing a significant legal situation.
Assistant Corporation Counsel
640 Temple 8th Floor
Detroit, Michigan 48201
Jonathan D. Rowe
Dykema Gossett, PC
315 E. Eisenhower
Ann Arbor, Michigan 48108-3306
Linda K. Rexer
Michigan State Bar Foundation
306 Townsend Street
Lansing, Michigan 48933
Alfred M. Butzbaugh, Jr., Liaison, Long Range
Butzbaugh & Dewane
811 Ship St., PO Box 27
St. Joseph, Michigan 49085-0027
Richard E. Winder, Staff Liaison
Deputy Director/Finance Manger
Michigan State Bar Foundation
306 Townsend Street
Lansing, Michigan 48933
MaryAnn Sarosi, State Bar of Michigan Staff
Associate Executive Director For Access to Justice State Bar of Michigan
306 Townsend Street
Lansing, Michigan 48933
This is the meeting record of the Access to Justice for All Goal Group. The Goal Group formulated seven objectives and fifty-seven strategies in the course of eight meetings and conference calls held on January 14, 1997, January 21, 1997, February 4, 1997, February 18, 1997, March 4, 1997, March 18, 1997, April 15, 1997, and April 18, 1997.
January 14, 1997 (Meeting, Ann Arbor) The Goal Group discussed the concept of "Access to Justice for All" and determined that the work of Goal Group would not be to define "Access to Justice" in philosophical terms, but rather to identify how "Access to Justice" should be defined in terms of the efforts which the State Bar of Michigan could bring to addressing it. This would include the extent to which the State Bar would provide direct resources as well as how it could work with others to have an influence on or lend leadership to accomplishing the objective in the broader community. Possible objectives were discussed, using the objectives in the State Bar's Interim Long Range Plan as a starting point for discussion.
January 21, 1997 (Conference Call) Each Goal Group member was assigned responsibility to coordinate the development of strategies and the collecting of information for one or two of the objectives, as follows:
Objective & Objective
A. Comprehensive Approach - Al Butzbaugh
B. Subsidized Legal Services - Al Butzbaugh
C. Pro Bono Services - Jon Rowe
D. Appointed Counsel - Lambro Niforos
E. Alternative Dispute Resolution - Dick Soble
F. Legal Self-help - Linda Rexer
G. Information and Referrals - Linda Rexer
February 4, 1997 (Conference Call) The Goal Group discussed issues relating to each objective, formalized the language relating to the "Information and Referrals" and "Comprehensive Approach" objectives, and began the formulation of strategies related to these objectives.
February 18, 1997 (Conference Call) "Draft Strategies" were discussed and the "Draft Strategies" document was approved as a working document to circulate among selected persons with background or expertise relating to each objective. A list of reviewers was prepared, and a draft letter requesting their assistance was approved by the Goal Group. The Goal Group planned to make adjustments to its draft objectives and strategies after this input was received and reviewed. A list of Objectives and Strategies was sent to reviewers on February 21, 1997 with cover letter asking them to comment on the Objective and Strategies related to their expertise (and on others if they wish), and provide written comments or suggestions by 3/15/97.
As responses were received, they were forwarded to all Goal Group members for review as to their assigned objective and for backup review by another Goal Group member, as follows:
Objective Primary Assignment Backup Comment Review
A. Comprehensive Approach
B. Subsidized Legal Services Al Butzbaugh Linda Rexer
C. Pro Bono Services Jon Rowe Rick Winder
D. Appointed Counsel Lambro Niforos Dick Soble
E. Alternative Dispute Resolution Dick Soble Lambro Niforos
F. Legal Self-help Linda Rexer Rick Winder
G. Information and Referrals Linda Rexer Jon Rowe
March 4, 1997 (Conference Call) and March 18, 1997 (Conference Call) The Goal Group reviewed the responses. At that time it was determined that the most effective procedure would be to have each Goal Group member review the comments related to the objectives and strategies to which they were assigned and present any resulting recommendations for changes to the draft strategies and objectives at a meeting on April 15, 1997.
April 15, 1997 (Meeting, Ann Arbor) A draft of the objectives and strategies was prepared referencing comments which had been received relating to each objective and strategy, and any changes which had been suggested changes. The Goal Group reviewed each objective and strategy and any proposed alternatives, as well as any relevant comments received before agreeing upon the final objectives and strategies.
April 18, 1997 (Conference Call) Prioritizing the objectives and strategies was discussed. The Goal Group felt that the objectives were all so important and interrelated that they could not be productively prioritized (see introduction as to treatment of objectives), but the Goal Group did agree on rankings for the strategies.
Other Activities (Ongoing) Among the issues discussed from the inception of the Goal Group was the need for funds to conduct the research needed to effectively formulate objectives and strategies for the Access to Justice for All goal. The Goal Group requested and received approval for State Bar funding of up to $16,500 for a survey of members related to Pro Bono activity in Michigan. The purpose of this survey was twofold: 1) consensus of the group that pro bono services is a key aspect of access to justice and 2) a belief that our current data on pro bono was not adequate for our purposes. The results of the pro bono survey would provides comprehensive information on current and potential pro bono services.
The Goal Group coordinated a draft survey document with the Pro Bono
Involvement Committee and the survey was mailed on March 14, 1997, with
responses requested by March 27, 1997. While only 3,000 responses were
anticipated, total responses exceeded 4,500. The survey results are still
being compiled at the time of this report, and will be the subject of a
separate report. However, sufficient data has been entered and reviewed
as of the time of this report to guide the Goal Group in its finalization
of its objectives and strategies and to verify that the objectives and
strategies are consistent with the survey data. The survey data and analysis
will be finalized by the Pro Bono Involvement Committee.
Algodones Associates, Inc., A Model for Providing Civil Legal Assistance to Low Income Households, October, 1996.
American Bar Association, Consortium on Legal Services and the Public, Legal Needs and Civil Justice: A Survey of Americans, Major Findings from the Comprehensive Legal Needs Study, 1994 (A 30-page summary of the major findings prepared by the ABA).
American Bar Association, Consortium on Legal Services and the Public, Report on the Legal Needs of the Low- and Moderate-Income Public, 1994 (A 45-page report summarizing the low- and moderate-income reports).
American Bar Association, Consortium on Legal Services and the Public, Report on the Legal Needs of the Low-Income Public.
American Bar Association, Consortium on Legal Services and the Public, Report on the Legal Needs of the Moderate-Income Public.
American Bar Association, Consortium on Legal Services and the Public, Agenda for Access: The American People and Civil Justice: Final Report on the Implications of the Comprehensive Legal Needs Study, May, 1996.
American Bar Association, Consortium on Legal Services and the Public Findings from the Comprehensive Legal Needs Study, (One volume containing the three preceding reports).
Eaman, Frank D., Proposed Standards for Assigned Counsel (as revised August 17, 1996), Recommendation and Report of the State Bar Assigned Counsel Standards Committee.
Eaman, Frank D., Memorandum to the Representative Assembly of the State Bar of Michigan, April 10, 1997 responding to the Report of the Criminal Jurisprudence Committee (addressing concerns related to the proposed Assigned Counsel Standards).
American Bar Association, Model Rules of Professional Conduct, Rule 6.1 Voluntary Pro Bono Publico Service, including Comment published with the Rule.
Chenault, D. Larkin, An Image of the Bar: Results of the 1996 Membership Survey, The Michigan Bar Journal, November, 1996, Vol.75, No. 11.
The Michigan Plan, A State-Based Plan for the Delivery of Civil Legal Services to the Poor, Submitted through the Collaborative Efforts of the State Bar of Michigan, the Michigan State Bar Foundation, and the Legal Services Association of Michigan, October, 1995.
Michigan State Bar Foundation, Justice for All: A Report on 1995 Filing Fees Contracts and IOLTA Grants Supporting Civil Legal Services for the Poor in Michigan, 1996.
Minnesota State Bar Association, Report of the Joint Legal Services Access and Funding Committee, December 31, 1995.
State Bar of California, Access to Justice Working Group, And Justice for All: Fulfilling the Promise of Access to Civil Justice in California, 1996.
State Bar of Michigan, Long Range Planning Committee Goal Group Work Guide, November, 26, 1996.
State Bar of Michigan, Interim Long Range Plan, November 26, 1996.
State Bar of Michigan, Voluntary Standard for Pro Bono Participation by All Members of the State Bar of Michigan (as adopted by the Representative Assembly, April 28, 1990).
State Bar of Wisconsin, Report of Commission on the Delivery of Legal Services of the State Bar of Wisconsin, May 4, 1996.
State Planning Assistance Network, A Partnership
of the ABA and NLADA, The Span Update - A Guide to Legal Services Planning,
all issues published through January, 1997.
A. Subsidized (free or reduced fee) legal services are provided to those in greatest need.
Selma Goode - Advocate, Westside Mothers
Bev Groudine - Director, IOLTA, American Bar Association Commission on IOLTA
Audrey Jackson - Advocate, Welfare Rights Union of Washtenaw County
John W. Martin, Jr. - General Counsel,
Ford Motor Company
Chairperson, State Bar of Michigan, Legal Services Steering Committee Members
Member, Board of Directors, National Legal Aid & Defender Association
Kathleen W. Newell - Chairperson,
State Bar of Michigan Senior Justice Committee
Member, State Bar of Michigan Access to Justice for All Task Force
Lawrence C. Wells - Deputy Director, Michigan League for Human Services
Kate Birnbryer White - Executive Director, Elder Law of Michigan/Legal Hotline for Older Michiganians
James J. Williams - Williams, Schaefer, Ruby & Williams, PC, Birmingham
Paula Zimmer - Executive Director,
Oakland/Livingston Legal Aid
President, Legal Services Association of Michigan
John W. Cummiskey - Trustee, Michigan
State Bar Foundation and Chair, Legal Services Grants Committee
Member, State Bar of Michigan Task Force on Access to Justice
Robert F. Gillett - Director, Legal
Services of Southeastern Michigan/Michigan Poverty Law Program
Pro Bono Involvement Committee Member
Member, Michigan Plan Planning Committee
Hon. Doyle A. Rowland - United States Magistrate Judge, United States District Court, Western District of Michigan
Marguerite Schervish - Former Pro Bono Coordinator, Detroit Metropolitan Bar Association
Abraham Singer - Managing Partner, Pepper Hamilton & Scheetz
Hon. Anna Diggs Taylor - Judge, United States District Court, Eastern District of Michigan
I.W. Winsten - Past Pro Bono Involvement Committee Chair
Hon. Freddie G. Burton, Jr. - Chief Judge, Wayne County Probate Court
Carol Chiamp - Chiamp & Assoc. PC, Detroit
Nancy Diehl - Wayne County Prosecutors Office, Child Abuse Unit
Frank Eaman - Chair, State Bar of Michigan, Assigned Counsel Standards Committee
Barbara Levine - Administrator, Michigan Appellate Assigned Counsel System
James R. Neuhard - Director, State Appellate Defender Office
Marsha L. Tuck - Abrams & Tuck, Farmington Hills
Hon. Carolyn Williams - Chief Judge,
Kalamazoo County Probate Court
D. Alternative dispute resolution
is available to all.
Laurence D. Connor - Dykema Gossett,
Chairperson, State Bar of Michigan, Alternative Dispute Resolution Section
Kenneth L. Jacobs - Dow Corning Corporation, Midland
Hon. Dennis C. Kolenda - Chief Judge, 17th, Judicial Circuit Court
Hon. James Rashett - Chief Judge, 3rd Judicial Circuit Court
Douglas Van Epps - Manager, Circuit Court Services, State Court Administrative Office
Elmer E. White, Attorney at Law, Ann Arbor
Hon. Kurtis Wilder - Chief Judge, 22nd Judicial Circuit Court
Candace Crowley - Executive Director,
Lakeshore Legal Services
Chair, Legal Services Integration/Merger Committee
Ward McDonough, Jr. - Executive Director, Legal Aid Bureau of Southwestern Michigan
Jeanne McGuire - Executive Director,
Legal Services Organization of Southcentral Michigan
Member, State Bar of Michigan Task Force on Access to Justice
Carol Munday - Executive Director, Legal Aid of Central Michigan (pro se clinic)
Hon. Thomas E. Shumaker - Judge, St. Joseph County Probate Court
Hon. Frank D. Willis - Judge, Van Buren County Probate Court
Hon. William C. Buhl - Judge, 36th Judicial Circuit
Sharon Granger - Membership & Development Coordinator, Michigan Library Association
Peter C. Kenney - Archer, Kenney,
Wilson & Cohen
Chair, Committee on Referral Services and Prepaid Plans, State Bar of Michigan
Member, State Bar of Michigan Task Force on Access to Justice
Alice McCardell - Detroit Public Library - TIP Program
Hon. Nathaniel C. Perry, III - Chief Judge, 68th District Court
Vincent Romano - Attorney Services
Lawyer Referral Information Services, State Bar of Michigan
Member, State Bar of Michigan Task Force on Access to Justice
MaryAnn Sarosi - Associate Executive
Director for Access to Justice, State Bar of Michigan
- Former Executive Director, Coordinated Advice and Referral Program for Legal Services
Linda Start - Executive Director, Center for Civic Education Through Law
Alfred M. Butzbaugh - Butzbaugh
& Dewane, St. Joseph
Treasure, State Bar of Michigan
Chair, Access to Justice for All Task Force, State Bar of Michigan
Member, Legal Services Integration/Merger Committee
D. Larkin Chenault - Executive Director,
State Bar of Michigan
Ex-Officio Member, Access to Justice for All Task Force, State Bar of Michigan
Victoria A. Roberts - President, State Bar of Michigan