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Abstract:
This article connects the threads of Civil Gideon, Access to Justice and the treatment of unrepresented litigants in civil proceedings. Rather than focus on doctrinal justifications for a Civil Gideon, this article focuses on particular contexts, allies and power dynamics in framing a three-pronged approach to achieving a context-based civil right to counsel. First, the key players in the legal system, including judges, court-connected mediators and clerks, should be required to provide assistance as necessary to insure that unrepresented litigants do not forfeit important rights due to the absence of counsel. Second, the expanded roles should be supplemented by assistance programs short of representation by a lawyer in court. This step must be accompanied by rigorous evaluation of those programs, to identify which are successful in the stemming the forfeiture of rights in particular contexts and which simply relieve pressure on the courts without altering the outcomes. Third, a civil right to counsel should attach where the expanded roles of the key players and assistance programs cannot stem the forfeiture of important rights of unrepresented litigants. Because the need for counsel might vary from state to state and court to court, the right to counsel will be context-based. The strategy, nonetheless, involves common features.

Civil Gideon, Civil Right to Counsel, Unrepresented Litigants, Access to Justice, Pro Se Litigants, Self-Represented Litigants, Evaluation of Outcomes

Abstract:
This article is designed to begin a discussion about the impact of the MacCrate Report, and questions we should confront, ten years after the Report's publication. The article begins with a summary of the Report, the activity within the legal education world in the Report's wake and the accompanying scholarly debate. It then shifts from the national stage to that of an individual law school, using the New England School of Law in Boston as a case study. The article examines the curricular changes that occurred at that school over the past ten years, and the process that led to the changes. The article analyzes the impact of the changes and the effect of the MacCrate Report in this context, a discussion that necessarily includes an exploration of the process of assessment and a search for appropriate standards for analyzing the impact. The article next returns to the national scene, reaching preliminary conclusions about the Report's impact based on the limited information available, but also urging that we use the tenth anniversary of the MacCrate Report to engage in a more detailed assessment of our teaching of skills and values. The article then raises and explores a series of questions to guide this assessment. The article examines choices involving higher and lower credit programs, full-year and one-semester programs, programs that depend on careful sequencing versus programs that do not, and programs beginning in the first year versus programs focusing on the upper-level classes. The article then shifts to the debate regarding the relative merits of in-house clinics versus externship programs and the resulting implications for an overall skills and values program. The article ends with a discussion of strategies for filling gaps that we know exist in the teaching of values identified by the MacCrate Report that relate to the goal of "Pursuing Equal Justice" in legal education.

Legal Education, MacCrate Report, Legal Ethics, Clinical Education

Abstract:
In this paper, I outline a strategy of an incremental, context-based approach to achieving a civil right to counsel. I do so against the backdrop of the renewed interest in, and increasing calls for, such a right, also called a "Civil Gideon." Despite my support for a Civil Gideon in a broad array of cases, I believe that litigation or legislative strategies that seek as the next step the establishment of a broad-based right to counsel, rather than a more targeted approach, will be difficult to achieve.

I reach this conclusion because I see the problem primarily as one of effectuating social change, not of developing constitutional or statutory doctrine. I therefore do not focus here on the legal arguments that might support a civil right to counsel. Instead, I examine initiatives of the past forty years to understand why those efforts did not achieve a Civil Gideon. I also look beyond the Civil Gideon history for more successful examples in which litigation played an important role in strategies designed to effectuate systemic change. Using the past as a backdrop, I explain what I mean by a context-based approach to an expanded right to counsel, and explore strategies to achieve that result. If the recent surge of activity is to bear fruit, we must first understand why we made so little progress in the first forty years. The dynamics of the first forty years must shape the strategies for the immediate future.

Recognizing the interrelationship between Civil Gideon strategies and the dynamics of social change is particularly important at a Symposium named for Edward V. Sparer. A giant in the early years of the "poverty law" movement, Sparer's aggressive and affirmative use of the "law as an instrument of social change" became the credo of his legal services office in New York City. Over twenty years after Sparer's untimely death, a renewed focus on Civil Gideon should ignore neither Sparer's vision nor the first 40 years of Civil Gideon initiatives.

Civil Gideon, Civil Right to Counsel, Unrepresented Litigants, Pro Se Litigants

Abstract:
In this article, the author argues that the proper roles not only should permit, but should require, those actors to provide extensive assistance to unrepresented litigants, particularly the unrepresented poor. The article first examines the traditional limits on the judges, mediators and clerks, showing that the limits effectively bar those actors from providing the assistance necessary to allow unrepresented litigants to participate meaningfully in court. Recognizing that the roles of the judges, mediators and clerks are interrelated, the article next identifies basic concepts that should inform the reshaping of the particular roles; it then proposes revisions to our traditional understanding of the proper roles of judges, mediators and clerks. The article ends with an examination of some of the current discussions of the problems facing unrepresented litigants in the contexts of family courts, bankruptcy courts and housing courts. The final section shows that the details of the roles must be tailored to particular contexts and that the discussions continue to ignore the need for a fundamental revision of the roles of the critical actors in the system.

Legal Assistance to the Poor, Judges, Law Clerks, Arbitrators, Underrepresented Litigants

Abstract:
The call for law schools to increase their role in supporting public interest and pro bono legal work has grown stronger over the past decade. In 1997, The American Association of Law Schools (AALS) appointed a Commission on Pro Bono and Public Service Opportunities to explore the issue. The Commission's findings and proposals were published in 1999. In response to the Commission's findings, the AALS created a Pro Bono and Public Service Section. The AALS also launched its Pro Bono Project, which collected data on programs at over 150 law schools. In 2001, the Project published A Handbook of Law School Pro Bono Programs, making available the collected data.

The information from law schools reflects significant changes in their pro bono, public interest and public service programs. In 1997, only twelve law schools had some type of graduation requirement related to pro bono or public service work. By 2005, that figure had risen to thirty.

Public interest and pro bono programs are a source of pride at many law schools, and a selling point in law school marketing. Law school catalogs and websites often display their school's pro bono and public interest work prominently. The organization Equal Justice Works developed a survey of law school public interest and pro bono programs to help prospective law students evaluate the different programs.

This essay explores some of the questions involved in designing or modifying such a program. After noting confusion that arises by the use of different labels for the programs, the essay focuses on the need to identify goals in designing the program, factors to be considered in choosing particular goals and the values a school communicates in labeling and designing its program. The next section uses my law school, New England School of Law in Boston, as a case study to illustrate the successes and challenges a school faces in putting together a program. The essay concludes with recommendations regarding whether to limit the program to volunteer work, how to decide what types of placements will be approved, and whether the program should be voluntary or mandatory.

Public Interest, Legal Education, Pro Bono, Public Service

Abstract:
This paper consists primarily of an empirical study of summary process actions in the Boston Housing Court, and proposals for reform based on the findings of that study. To compile our data we reviewed the case files of 500 summary process actions commenced in 1982. We were interested primarily in studying the default rate, the impact of representation and legal advice on the parties, and the ability of tenants to present and prevail upon the defenses and counterclaims afforded them by Massachusetts law. Our findings, presented in Part II of this paper, include the observations that a large number of tenants default, that most of the tenants who appear in Court are unrepresented, while most landlords are represented, and that while representation in most cases has little impact on how landlords fare, tenants who either are represented or have access to legal advice fare significantly better and are better able to present their claims than unrepresented tenants.

To lower thedefault rate and alleviate the imbalance between tenants with advice or representation and tenants without, we propose a series of reforms, presented in Part IV. The reforms are designed primarily to increase the access of tenants to the court, enhance the ability of unrepresented and unadvised tenants to recognize and raise substantive claims, and improve the Court's response to those claims once they have been raised. Each of our reforms also is designed to educate both tenants and landlords regarding their rights and duties.

We recognize that the Court is overburdened considerably by its present caseload. Perhaps,as a consequence, the last thing the Court would want at this time is to be criticized or bombarded with proposals for reform. Nonetheless, where we have criticized the Court, we believe that criticism is both justified and constructive. Furthermore, some of our reforms actually could decrease the Court's caseload, while others require merely the substitution of one form for another, or a change in the attitude of court personnel. Finally, we offer these criticisms and reforms in the belief that the Court personnel genuinely are concerned with the Court's treatment of the parties before it, and therefore in the hope that the Court will be receptive to these criticisms and reforms.

unrepresented litigants, pro se litigants, self-represented litigants, court studies, housing court

Abstract:
In a variety of civil legal settings, negotiations between lawyers and unrepresented parties are common. Despite this fact, the ethical rules governing lawyers, as well as most ethics textbooks, fail to address such negotiations in any specific way. The ethical rules do, however, prohibit the giving of advice to unrepresented parties. Through an examination of the New York City Housing Court and other contexts where such negotiations are commonplace, the author concludes that lawyers frequently violate existing rules against giving advice to unrepresented parties. Because the unrepresented litigants often are poor, are people of color, and are women, these ethical violations fall most heavily on members of those groups. The author reviews several possible responses to lawyers' abuses of ethical rules, concluding that no single response will curtail the problem. He calls, therefore, for a strategy that combines enhanced enforcement of existing ethical rules, the passage of additional ethical rules concerning negotiations with unrepresented parties, increased supervision by courts, and expanded provision of counsel in civil actions.

New York Housing Court, Pro Se Representation, Legal Ethics, Compromise, Settlement

Abstract:
There is much to celebrate regarding the legal community's response to the legal needs arising out of the September 11, 2001 attacks. Chief Justice Kaye rightly delights in the picture of “the Bar at its finest, its shining hour; thousands of lawyers, paralegals and staff, hundreds of thousands of hours enthusiastically volunteered for the public good.” As the Report's Introduction summarizes, and the body of the Report details, the response of the legal community was “fast, thoughtful, comprehensive and creative.” The raw numbers are impressive. Volunteer lawyers represented more than 4,000 individuals and families who were affected by the disaster. Approximately 3,000 lawyers received 9/11 training through the City Bar and in-house law firm programs. Over 2,800 lawyers registered on the ProBono.net 9/11 website to gain information and resources.

The raw numbers are only the beginning of the story of the legal community's response. “[T]he institutions that make up the New York area legal community collaborated in ways never previously imagined. Where turf battles once existed, cooperation prevailed.” Chief Justice Kaye observes in the Report's Foreword that the Report itself is an “extraordinary primer” - “a comprehensive textbook on how best to deliver pro bono services!” Each chapter is filled with information crucial to those who might attempt to glean lessons from the 9/11 experience and translate them to other endeavors. The Report sets forth the “Foundations of the Legal Community's Response” and describes the rich variety of “Specific Projects Designed to Aid Victims.” The Report then turns to “Ongoing Efforts and Unmet Needs” before describing “Survey Results of both the Volunteer Lawyers and Organizations” that responded to the crisis.

The final part of the Report offers eighteen lessons learned, in the “hope that the 9/11 response will be an instructive example for future legal relief efforts.” The lessons are divided into three categories: “Responding as a Community”, “Responding to a Disaster”, and “Improvements for the Future.” Chief Justice Kaye's only disagreement with the “Lessons Learned” is that she sees not only eighteen lessons, but “hundreds of lessons” for organizing, delivering and overseeing pro bono services.

As we celebrate the unprecedented achievement of the legal community in the aftermath of the September 11th attack, we should examine the achievements with a critical eye. The evaluation should not be limited to the year following September 11. Rather, as the crisis “fades” and the profession, along with the rest of the world, settles into “normalcy” post-9/11, the questions become more difficult:

*Despite the extensive response of the legal community, to what extent did the response prove inadequate?

*To what extent does the unique nature and magnitude of the September 11 disaster render the impressive response something we cannot replicate, even to a lesser degree?

*Even to the extent the response was successful, to what extent did the response constitute a diversion of existing resources from other endeavors, rather than an overall increase in pro bono and public services efforts?

*If the Report is to serve as a primer for legal communities, what lessons from the response to September 11 can be applied to other settings, and how can we apply them?

Although it seems unpatriotic to raise questions as to the ultimate success of the endeavor, I do so despite my complete admiration and respect for the efforts of those inside and outside the legal community who responded immediately, creatively and tirelessly to the horrific events of September 11 and its aftermath. I do so in the spirit of the implicit challenge of Chief Justice Kaye's Foreword to the Report, where she notes: “the fact is that for families facing homelessness, or eviction, or deportation, or foster care, or innumerable other life challenges, every day is also a time of crisis.” The success of the legal community's efforts must therefore be measured not only by analysis of the response to the 9/11 crisis itself, but also by consideration of whether the lessons learned pave the way for an improved response by the legal community to the legal crises facing countless families every day.

Pro Bono, Public Service, Unmet Legal Needs, Access to Justice