More on Unbundling

Following up on a previous post about unbundling, there's this story out of New Jersey.  A court there found that a lawyer had violated the rules of professional conduct by ghostwriting a brief on behalf of a pro se litigant.  The court reasoned that courts sometimes give leeway to pro se litigants, leeway that would be unwarranted if the litigant had received a lawyer's assistance.  The court suggested that the lawyer's failure to reveal his role in this case constituted a violation of Rule 3.3 in that it reflected a lack of candor to the tribunal.

In my view, unbundling is an important method for providing legal assistance to people who cannot afford to hire an attorney to handle an entire legal matter.  That said, I do sympathize with the court's point that the judge might give breaks to a litigant, thinking that the litigant is pro se when, in fact, the litigant is receiving some assistance from a lawyer.  That's not an argument against unbundling, but rather an argument that a lawyer who is helping someone in litigation should reveal the extent of that assistance to the court. 

The court in New Jersey went one step beyond notification, however, and required the ghostwriting lawyer to make an appearance in the case or stop working on the matter.  I think a formal appearance isn't necessary to achieve the goal of transparency and would undermine some of the benefits of unbundling.  In particular, by making a formal appearance, the lawyer would probably have to take on more obligations in the matter, which would increase costs and undermine the goal of providing more affordable legal assistance.  A better solution, in my opinion, would be to require the lawyer to notify the court about the particular nature of the limited representation but not require a formal appearance.

In any event, given the increasing use of unbundling, issues of this sort are likely to arise with more frequency in the next few years.  Stay tuned.

Update: For additional commentary and links regarding this case, check out the Legal Profession Blog.

Comments

[Steve Berenson]

Andy - I agree with your support for unbundling generally as a way to get more legal services to more moderate income clients. However, as a formal matter judges shouldn't give "breaks" to any litigants - it violates the fundamental priciple of judicial impartiality. Moreover, most pro se litigants are not completely destitute (ie, absolutely unable to afford counsel). Most simply exercise a "choice" (albeit often a questionable one) that they would be better off representing themselves and spending their money on something other than lawyers. It's not clear to me that judges should encourage such decision making by "favoring" such litigants. Additionally, in the case you describe, if the judge had read the assumedly relatively high quality brief, s/he should have conculded that this particular litigant was capable of presenting an effective argument without a "break" from the court. In other words, pro se litigants also vary a great deal in their capacity to present their own cases in an at least somewhat effective manner. While I agree that courts and court personnel should help the most needy pro se litigants at least to present their claims in a way that will be intelligible to the court, many don't require breaks from the judge in order to do so.

Steve B.

[Andrew Perlman]

Steve,

Good point. I think you're certainly right that it would be inappropriate in certain contexts for judges to give pro se litigants "a break." On the other hand, there are lots of judgment calls in a particular case, and I do think that those calls could be affected in certain circumstances if the judge believes one of the parties is pro se, especially if that party is a person of limited means.

In any event, I think it depends on the circumstances. Although there might be cases where the pro se status of the litigant is (and should be) irrelevant, I don't think that would be true across the board.

Andy

[judith]

Have you helped out by reading and editing the brief or other legal document of a friend or relative? I've done it dozens of times. Should I now attach a "letter of assistance provided" to any such document?

[Andrew Perlman]

You're right that this position can be taken to an extreme and produce some unusual and undesirable outcomes. I guess one distinction between the situation that you describe and the case in New Jersey is that your situation sounds more like a favor than an actual limited representation. There are clearly some difficult issues here, and it will be interesting to see what happens in this area.

[david giacalone]

As I noted last week discussing this case at SHLEP: In general, a judge should only give a pro se litigant “more slack,” when he or she needs it in order to have the case fairly presented and heard — e.g., understanding procedural rules, presenting written arguments, asking questions at trial. The pro se party shouldn’t need extra assistance from the court relating to a pleading (regarding, e.g., cogency of arguments, form of citations, depth of research, etc.) that has in fact been written by a lawyer. Thus, there should be no judicial helping-hand and therefore no disadvantage to the opposing party with regard to a ghostwritten pleading. Indeed, the judge should be happy to have a ghostwritten pleading before the court, because there will be less need to help the particular unrepresented litigant. see http://blogs.law.harvard.edu/shlep/2007/03/16/nj-fed-court-bars-undisclosed-ghostwriting

Our posting on the new California Benchguide for judges dealing with unrepresented litigants lists several resources on the topic of judges and the pro se litigant. see http://blogs.law.harvard.edu/shlep/2007/03/21/california-judges-get-benchbook-for-handling-pro-se-litigants/

[Pro Se Litigant]

I'm a pro se litigant managing three cases (US District Court, Superior Court and Court of Federal Claims) My cases are very complex and if it weren't for the lawyer sites on the Internet, I wouldn't know how to write motions. I get templates from all kinds of legal firm sites. They also post laws and tips. Does this mean I have to disclose to the court every law firm that has helped me by posting blawgs, forums and documents? Do they all have to make an appearance in my cases? Does every lawyer that's given me tips have to tell the court they did so? By the way, I'm not pro se because I want to be. I see a lot of blawgs mention pro se litigants make questionable decisions to represent themselves. Mine decision was either continue pro se or quit the case when it got bigger than my lawyer could handle.

[afree]

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[jimkeyes]

My experience is that it is the rare judge who will afford any type of accommodation for a pro se litigant. Generally their attitude is one of toleration at best. At the same time, their attitudes can be improved by the submission of professional quality documents. If a pro se litigant has to hire an attorney to prepare legal memoranda for them, and is able to find one to do it, it should be permitted. In such a case, it is easier for the judge to make out what the arguments are that are being presented instead of struggling through poor or mediocre writing from the pro se. In Washington its not uncommon for a new pro se litigant to get that kind of help from a seasoned pro se litigant who will draft "sample" documents for them -- not giving them legal advice or representation, but giving them a sample of what they would submit if they were the party involved. In this way we encourage pro se litigants to learn how to write to inform, and not confuse, a judge. Our goal is to improve how the judges see pro se by improving the quality of pro se representation. The WPSLA is also building a 'brief bank' of well written pro se briefs that others with similar issues can use as inspiration, or copy in mass.