Recently, the Connecticut Judicial Branch’s Access to Justice Commission released its report on how to improve legal resources within the state. The report contained a number of positive suggestions, but could and should go further in a number of areas in order to ensure that as many people are receiving adequate representation as possible during these difficult economic times. At the same time, these reforms could be undermined if Connecticut simultaneously broadens its laws regarding the unauthorized practice of law.
The main focus of the report was on increasing legal aid and pro bono opportunities. This is certainly a positive factor, but it should not be overemphasized. As the report itself noted, the ongoing economic crisis has not only put strain on state and non-profit resources that provide legal aid, but significantly increased the number of those who need it. More people are ending up in court after finding themselves sued for past due debts and faced with foreclosures. While ideally each of these people could receive help from an attorney, even with a vastly expanded legal aid program there will not be enough lawyers to work on these cases. While any expansion of legal aid and more pro bono hours will be a welcome resource for those complex cases where an attorney’s expertise is appropriate, it is ultimately not a cure-all to the problems of legal access.
Fortunately, it seems the Commission did give some thought to a number of alternatives to hiring more attorneys. One promising trend is the consideration it gives to limited scope representation. Limited scope representation allows a self-representing litigant to have their efforts supplemented by an attorney acting in an advisory capacity. This is an effective way to break up legal work, with the client doing most of the routine procedures. Attorneys in this framework spend their time only on the most complicated issues, freeing them up to attend to more clients. At the same time the client receives the necessary help they need with complex legal issues for a smaller cost than full representation.
The report also displays some promising trends towards promoting non-lawyer assistance. This is another cost effective way to further expand legal access for things like foreclosures and small claims cases. The commission states that it is actively looking best practices in other jurisdictions in this area. Hopefully, this will include creating a program at similar to Harvard’s Small Claims Advisory Service (SCAS) in Massachusetts. SCAS is a program staffed by college undergraduates that helps people navigate the procedures of small claims court over the phone and by appointment. This constitutes another resource that can help people navigate the complex procedures of routine legal matters in small claims court without the need to involve an attorney with an expensive hourly rate. Programs like this should definitely be part any strategy to address access to justice issues.
It was also encouraging to note the report’s focus on how technology can improve legal access. Suggestions include creating videos to help self-represented people with filings, and using video conferencing to improve pro bono access by converting attorney travel time into time helping clients. The commission also hopes to create a toll-free number that self-represented parties can use to ask questions and receive assistance. A streamlined website with more information will ensure that people engaging with the court system have as more information available. This will allow them to go into legal proceedings more informed and aware of the consequences.
While these trends are generally positive, one potential concern is the ongoing issue of unauthorized practice of law (UPL). In recent years, there have been a number of efforts to broaden the definition of UPL in the Connecticut legislature, both by broadening its definition and raising the associated penalties. Such a broadening is unnecessary, as Connecticut law already contains significant punishments for those who deceive the public by holding themselves out as lawyers. Additional broadening could undermine the commission’s recommendations like the toll-free line for litigants. If the non-attorney officials who are manning the line are concerned that they will be charged with UPL, (under Connecticut law, even a minor instance of UPL can is a misdemeanor that can carry a significant fine) the less comprehensive the information provided by the help line will be and the less useful it will be to consumers.
In contrast, a narrower definition of UPL would, while still protecting consumers from fraud, ensure that consumers have a number of choices and can utilize a number of resources to tailor a response to their particular needs. Programs equivalent to SCAS could be set up to provide more effective and complete information on court proceedings. Officials on the help line would be able to give more complete advice over the phone. These types of resources need to be protected because without them the limited number of attorneys and the high cost of full representation effectively deny people access to the justice system.
Hopefully, the commission’s positive recommendations will be adopted quickly and implemented rapidly. At the same time, Connecticut should be wary of adopting legislation that would define the practice of law so rigidly that these recommendations are undermined.
Will Downes, a law student at Georgetown University Law Center, is a Responsive Law intern.