Roadblocks to Access to Justice: Reforming Ethical Rules to Meet the Special Needs of Low-Income Clients
36 Pages Posted: 8 Mar 2015
Date Written: 2014
The nation’s growing justice gap has left the poor with far too little access to legal representation, even in the most serious of civil matters. With poverty rates approaching their highest levels in the last fifty years, the poor struggle to hold on to their homes, their jobs, and their families, frequently overmatched by superior resources and an abundance of opposing lawyers representing corporations, government, and well-heeled interests. Non-profit lawyers struggle to provide limited assistance to the poor in high volume, community settings, or in courtroom corridors and on telephone hot lines. It is in these non-traditional settings that lawyers should ask whether the Model Rules of Professional Conduct promote or hinder access to justice? Or, stated differently, have the Model Rules kept pace with a rapidly changing legal environment that increasingly departs from the traditional lawyering paradigm upon which our ethical rules are largely based?
Model Rule 6.5, one of the few new ethical rules adopted over the past fifteen years aimed directly at serving the poor, can be seen as proof that certain ethical restrictions on lawyers may be relaxed safely in non-profit settings, without doing any harm to the legal profession or the public. Still, this rule hardly goes far enough. Ethical restrictions on lawyers relating to document assistance, financial assistance to clients, and withdrawal of representation, to name just a few, are grounded on assumptions applicable to a profit-making paradigm. Rather than promoting legitimate interests, these limitations hinder access to justice for the poor. Comprehensive reform of our ethical rules is long overdue. The ABA should form a blue-ribbon commission designed to examine the Model Rules from the perspective of how legal services are increasing delivered to the poor and accessed by low-income communities. The members of a blue-ribbon commission should be drawn heavily from leaders of legal aid and pro bono organizations, along with state court judges, who have deep experience with the delivery of legal services to underserved communities.
Keywords: Poverty law, professional responsibility, access to justice, inverted funding environment, Legal Services, public funding, low-income clients, traditional lawyering model, for-profit lawyers, limited scope representation, Model Rules of Professional Conduct, financial assistance to indigent clients
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