Report of the MSBA Pro Se Implementation Committee

Report of the MSBA Pro Se Implementation Committee

May 2008 to 2009

Background

Since 1996, the MSBA’s Task Force on Pro Se Litigants, now the Pro Se Implementation Committee[1] (the Committee), has studied and worked to implement the recommendations of the Minnesota Conference of Chief Judges Committee on the Treatment of Litigants in Pro Se Litigation. The continued growth of pro se litigants has resulted in the legal system addressing the issue through rule changes to Minn. Rules of Court, Gen. R. Prac. Rule 110, to encourage the development of expansive self-help service centers and assistance for district court administrator’s offices.[2] Further, technology is being used to help pro se litigants understand and access the legal system.[3] The Minnesota State Law Library and area county libraries also provide print and electronic resources to pro se litigants.[4]

After examining ethics and procedural rules adopted by other states[5], the Committee drafted proposed rule amendments to Minnesota Rules in an attempt to explicitly clarify permissible activity to be undertaken by lawyers in limited scope situations. The Committee solicited feedback from judges and attorneys at three focus groups held in the winter of 2005. After analyzing the results from the focus groups the Committee concluded that Minnesota Rules already adequately address and permit unbundled legal services and no changes are needed.

Through its work over the last several years, the Committee found that in our state there are many reasons litigants appear pro se in court proceedings. A primary reason is simply the lack of an ability to afford an attorney or obtain representation from a legal services or pro bono program. The Committee favors encouraging private attorneys to offer unbundled services as part of an approach to increasing access to justice, and as a way to give choice to consumers of legal services. The Committee has adhered to the following working definition of unbundling[6]: Unbundling is a method of providing legal services in which clients select among several discrete lawyering tasks contained within a traditional, full-service representation package. Discrete tasks include advising the client, legal research, discovery, negotiation, drafting documents, court representation, etc.

The Committee has concluded that encouraging limited scope legal assistance can help many people obtain the legal help they need and help the court system administer the judicial process. To that end, the Committee has focused its attention on promoting unbundled practice to attorneys by providing educational and professional support through CLE presentations, sample risk management materials, and clarification on ethics concerns raised in limited scope representation.

Education and Outreach

Education and training is needed to reduce perceived barriers to attorneys providing unbundled services. Common concerns raised to committee members when presenting on unbundled services include the fear of being unable to withdraw, efficient and effective retainer agreements, and malpractice and ethical violations. When properly administered, unbundled services can allow attorneys to tap into new client markets by offering unique services tailored to the client's needs. The Committee believes a greater understanding of ethics and procedural rules will encourage more lawyers to offer unbundled services.

Members of the Committee have begun the process of reaching out to bar committees and sections at both the state and local level to speak to attorneys about unbundled representation and the benefits to private practitioners and underrepresented clients. The first presentation was completed in October 2008 at a meeting of the 6^th District’s Family Law Section monthly meeting. Attendees expressed interest in learning more about unbundled services but expressed concerns regarding liability and ethics considerations. The Committee has also drafted a pamphlet for attorneys on limited scope representation and plans to distribute the pamphlet to courthouses, law libraries, and existing pro bono or pro se service sites.

The Committee held a CLE event on the business aspects of providing unbundled services at the 2007 State Bar Convention. Sue Talia, a nationally recognized leader in the promotion of unbundled legal services, came in from California to present on the business rationale for expanding the practice of unbundled services. Ms. Talia’s presentation was well-attended and recorded for future CLE training sessions.

Professional Support

The Committee recognizes that more work is needed to address the malpractice concerns of lawyers who may be hesitant to offer unbundled services in their practice. To improve understanding of the ethical issues raised by providing unbundled services, the Committee has created risk management materials for attorneys and has spoken with malpractice insurance carriers to clarify coverage of unbundled services.

Materials provided by Sue Talia in connection with her CLE presentation were adapted to Minnesota law by the Committee and are now available on the Committee's website.[7] The Committee would like to thank Jean Lastine for her outstanding work in adapting these materials, which include sample retainer agreements and practical information regarding the provision of unbundled representation. The Committee hopes to create an online library of sample forms to assist attorneys to expand into this arena.

Ethics and liability concerns have been found to be a major deterrent to the practice of unbundled services. The Committee confirmed with a local malpractice insurance company that, unless explicitly excluded by the carrier, unbundled services are covered under most malpractice insurance. The key to avoiding liability and ethics problems is to carefully craft a clear representation agreement that outlines the specific tasks to be accomplished by the attorney representing clients in a limited scope representation relationship. The risk management materials, as mentioned above, provide a sample retainer agreement for attorneys as well as crafted language to describe to clients the nature of an unbundled representation relationship.

The Committee has also worked with the MSBA staff to develop strategies for disseminating information and creating resources for attorneys seeking to provide unbundled services. The mnfindalawyer.com site currently includes limited scope services in its listing of areas of practice. Educational materials will be made available to attorneys on the Committee’s website and other appropriate internet resources.

Conclusion

Unbundled legal services are important to providing increased access to justice to those unable to pay full representation costs. The Committee continues to work to educate attorneys and provide support in the area of limited scope representation in the hopes that more attorneys in Minnesota will incorporate unbundled services into their practice. Moving forward, the Committee hopes to offer additional trainings and support for attorneys interested in providing unbundled legal services.

Respectfully Submitted By,

Sara Sommarstrom, Chair

[1] Committee members during the 2008-2009 term were: Sara K. Sommarstrom, Jean A. Lastine, Susan T. Ledray, Sara A. Galligan, Sarah J. Shella-Stevens, Elizabeth K. Reppe, the Honorable Beverly J. Anderson, Jennifer L. Clites, Patricia Ann Dolan, Andrea Nordick, Heidi V. Rivkin, Mary Ellen Seaworth, Candee Goodman, the Honorable Kathleen J. Sanberg, and John DelVecchio.

[2] Known staffed Self-Help Service Centers exist in Hennepin County, Ramsey County, Dakota County, Anoka County, Stearns County, and Washington County.

[3] Statewide online self-help resources are available from the court at www.mncourts.gov/selfhelp. The 4^th Judicial District and the Minnesota Legal Services Coalition have rolled out the I-CAN program, an online interview-style method of preparing forms. I-CAN coupled with unbundled legal services holds promise as an effective alternative to full representation for many low income litigants, and as a means of providing meaningful access to courts.

[4] Staffed county law libraries are located in the county courthouses in Anoka, Carver, Dakota, Hennepin, Ramsey, Scott, St. Louis, Stearns, Washington, and Wright Counties; they are open to the public and managed by trained staff. Also, Minn. Rules of Court, Gen. R. Prac. Rule 110 was amended in 2003 to require self-help personnel to educate Self Represented Litigants about legal resources provided by state and local libraries. 110.04(a)(1).

[5] The study of state rules regarding the unbundling of legal services occurred in 2006 and found nine states – Alaska, California, Colorado, Florida, Maine, Nevada, New Mexico, Washington, and Wyoming – that have adopted rules regarding unbundling. At the time of the study, New Hampshire, Connectitut and Utah were in the process of changing their rules and Iowa, Illinois, and Ohio were considering rule changes. The National Law Journal, July 6, 2005.

[6] Unbundling is often also referred to as limited scope lawyer-client relationships.

[7] http://www2.mnbar.org/committees/pro-se/RiskManagementA-3-24-2009.pdf.