Understanding the racial disparities that exist in our state provides critical context when working with pro bono clients. This article provides this background, as well as practical suggestions for lawyers in addressing this inherent subtext in providing pro bono services. Read more >>
Volunteer attorneys who do not normally practice in Conciliation Court may be unaware that there are two different processes for vacating default judgments entered in Hennepin County Conciliation Court, depending on the amount of time that has passed since entry of the default judgment. This month’s tip provides step-by-step suggestions for how to draft motions to vacate default judgments for each process.. Read more >>
As more legal services clinics are co-located at social services agencies and schools, there are also greater opportunities for social workers and attorneys to collaborate to meet their client’s goals. While there are concerns raised with such collaborations, there are also tremendous benefits: for the client, the attorney and the social worker. January’s Tip of the Month focuses on the benefits of such collaborations and provides specific examples of when such collaborations are particularly helpful. This tip also identifies limitations and potential pitfalls of such collaborations and how they might be overcome. Read more >>
Last year, VLN volunteers provided 2,208 brief legal services, such as such as drafting court paperwork and making phone calls on behalf of clients. To determine what difference these services make in our clients’ lives, I analyzed results from the LAP clinici clients served between January 1 and March 31, 2011. This tip summarizes the lessons learned and lists resources that support providing effective brief legal services in a limited time.
Lesson One: Screening for merit is essential (as well as required by ethics, as addressed in the February 2011 Tip of the Month). Unless the client’s cause has merit, your work is unlikely to be helpful and could be better spent elsewhere. Results show you are effectively screening cases for merit prior to providing brief services; 56% of respondentsii had a positive outcome to their case. Thank you for the great work!
Lesson Two: Some brief services are more effective than others. The following brief services had 80% to 100% positive outcomes, and are therefore a highly effective use of your time:
Drafting an Answer: Typically, defendants have merit to at least part of a petition. When an answer is served on the plaintiff, the defendant avoids default judgment and either the plaintiff drops the case or the case is resolved on the merits. Resources: HotDocs Answer to Summons and Petition linked on our website,iii Self-Help Center’s Answer packet, and Legal Aid Fact Sheetsiv (What to Do If You Are Sued, and Garnishment and Your Rights, in particular).
Financial Disclosure Forms: Completing and filing this form prevents an Order to Show Cause Hearing and bench warrant (a very concrete benefit). The advice you provide also gives the client an opportunity to understand their rights in collection and/or garnishment. Resources: Legal Aid Fact Sheets, including Your Rights in Collection.
Telephone Calls: All clients whose attorney made phone calls to judicial clerks or other government agencies, and 80% of clients whose attorney made phone calls to creditors or opposing counsel, reported that their case was advanced. Those calls helped clients gain important information or negotiate from a position of greater strength.
Power of Attorney Form: This straight-forward form helps clients who are leaving the country or otherwise unavailable for a time to protect their financial interests, including when they are collecting on a judgment. Resource: POA fact sheet and form linked on our website.
Wage Garnishment Exemption form: This keeps much needed income in the client’s household when a client is receiving government assistance based on need, received such assistance within the last six months, or was incarcerated within the last six months. Resource: The wage garnishment exemption form is on our website.
Lesson Three: Other brief services are relatively effective and a good use of your time:
Debt Dispute/Validation Demand Letters: Asking the creditor to validate the debt puts clients in a position of greater power; creditors without certain documentation may even stop collection efforts. One third of clients had measurable outcomes following this brief service. Caveat: The FDCPA protections are not enforceable against original creditors. Resource: Sample debt validation demand letter on our website.
Demand letters: A demand letter for return of property or security deposit is a critical part of a document trail for a positive outcome in Conciliation Court. One third of clients reported even more immediate positive outcomes.v Resource: Sample letters on our website.
Conciliation Court (CC) Complaints: While CC is the preferred venue for many of our clients’ issues, hurdles to success include difficulty serving a foreign defendant (business) by mail and failure to bring evidence to the hearing. Clients who receive specific coaching about potential problems, as well as detailed written instructions of next steps are more likely to succeed. Resource: A user-friendly CC manual on ProJusticeMN.org.
Lesson Four: Some brief services are almost never effective and should not be performed absent special circumstances. These include drafting motions to vacate default judgment, a (district court) summons and complaint, and judgment collections. Reasons include:
Low merit. Clients seeking a motion to vacate have already lost on one level. In addition, clients starting a district court lawsuit court have a high burden of proof.
Money. Even with well-drafted paperwork, clinic clients often can’t pay the $322 filing fee (plus $100 motion fee in motions to vacate default judgments) and the paperwork is never seen by the judge. (Check first whether the client qualifies for a fee waiver.)
Courtroom appearances. Unrepresented litigants typically lose in general district court hearings, especially if the other side has an attorney. Caveat: This finding is limited mostly to debtor/creditor cases, and does not include housing or family court hearings.
Limited remedies. Most judgment debtors have limited assets or are skilled at hiding assets or evading service, making collection efforts futile. Remind judgment creditors of the court’s limited remedies. (Please refer clients with judgments against former landlords or employers to VLN for more extended assistance.)
Lesson Five: Well-trained clinic assistants are essential to brief services; they quickly provide appropriate forms and resources and can complete the service under your supervision while you advise the next client. This finding confirmed the feedback from many clinic attorneys. As a result, VLN is currently improving and streamlining clinic assistant training.
Conclusion In the right situations, brief legal services are a highly effective use of your time, leading to positive outcomes, some of which are typically associated with full representation. Determining in which situations to provide these services is essential in making most effective use of a limited resource – your time!
Thank you for your dedicated work to at our clinics and, as always, please let us know how the VLN staff may support your work.
i The LAP (Legal Access Point) clinic is a walk-in legal advice clinic located at the Hennepin County Government Center; legal issues are typically civil legal issues. ii Between January 1 and March 31, 2011, 91 clients received brief legal services at the Legal Access Point Clinic (LAP), of which 48 (or 53%) responded to our requests for information. iii All references to our website are to this page: http://www.volunteerlawyersnetwork.org/volunteer/brief iv All legal aid factsheets referenced are available at http://www.lawhelpmn.org. v This study was completed prior to the conclusion of some clients’ matters.
Submitted by Melanie Wimmer, VISTA Attorney
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August Tip of the Month – Helping Victims of Identity TheftBrief Legal Services at Clinics – Making a Difference in Your Clients’ Lives
Limited scope legal services for pro bono clients, including making a phone call, drafting a pleading, or writing a letter, provide access to justice to many struggling families and individuals in our community. Studies show that limited scope services can, with a limited amount of attorney time, provide clients with concrete outcomes to their legal matters. However, limited scope services are not right for every situation. Below is a checklist to ensure that a given limited scope service complies with the Minnesota Rules of Professional Conduct (MRPC) and can genuinely advance the client’s case.1
1. Keep an eye out for conflicts. The standard for pro bono limited scope services is “actual knowledge.”2 If you know that you or someone in your firm represents the client’s adverse party, do not give any legal advice to the client.
2. Assess the extent to which the client’s issue is both legal and has merit.3 If not, consider other alternatives for problem solving, including moral, economic, and social factors that may be relevant to the client’s situation.4 Consider litigation alternatives (neighborhood dispute resolution resources, mediation, informal requests for relief, etc.), if appropriate and likely to assist the client. If the client simply does not have a legitimate grievance or is unlikely to obtain any relief, you should be clear in advising the client that there is no merit to their position and you will not be assisting them.
3. Communicate clearly to the client about the scope of your representation, including:5
a. What services you will provide
b. What services you will not provide6.
c. What the client must accomplish on their own in order to achieve objectives.
At VLN clinics, (a) and (b) are handled in the Client Acknowledgement on the Clinic Data Sheet, although it may be necessary to also orally tell the client that you will not be representing them in court or help them on an ongoing basis. (C) is best provided on the Attorney Suggestion Form.
4. Evaluate whether the circumstances for unbundled services are reasonable, including the following criteria:7
a. Whether the client will be better off with limited services than without.
b. The nature of the matter in substantive law8 and complexity.9 Cases with a high level of complexity are probably inappropriate for limited scope services.
c. The sophistication and abilities of the client to continue pro se. For example, assess whether the client can understand what is being asked for in the pleading, whether the client could represent herself at a hearing on this matter and answer questions stemming from the pleading. The client does not need to have the same depth of understanding as a lawyer might, but should be able to understand and articulate the basic arguments.
d. Whether there is sufficient time to complete the brief services contemplated.
5. Ensure pleadings are brought in good faith, and have reasonable basis in both law and facts.10 The obligation to the client and the court to investigate whether the pleadings are well founded in law and facts requires a reasonable inquiry under the circumstances and is not substantially less than in full representation. One practical suggestion to prevent frivolous claims is to discuss potential allegations and counsel the client to not sign the pleadings until and unless he or she can gather more factual support for a particular allegation.
6. If at LAP, use the “Assisted at VLN’s Legal Access Point Clinic” stamp on each pleading.11 This gives transparency to the court about the circumstances of the drafting of the pleading, addressing potential concerns about ghostwriting.
7. Keep a copy of what you have done. At LAP, ask a clinic assistant to scan a hard copy and/or save electronic copy on the VLN flashdrive.
8. Maintain client confidentiality. Your obligation in limited scope services is the same as required in more traditional attorney-client relationships.12
For questions regarding applying the Rules of Professional Conduct to limited scope services, please call Pat Burns at the Office of Professional Responsibility at 651-296-3952.
2 Rule 6.5, MRPC. This applies to pro bono representation only.
3 Rule 3.1, MRPC.
4 Rule 2.1, MRPC.
5 Rule 1.2(c), MRPC: A lawyer may limit the scope of representation if the limitation is reasonable under the circumstances and the client gives informed consent. If it is reasonably foreseeable that the person receiving the advice will rely on the advice, an attorney-client relationship is formed. Pine Island Farmers Coop v. Erstad & Riemer, 694 N.W.2d 444, 448 (Minn. 2002), Togstad v. Vesely, Otto, Miller & Keefe, 291 N.W.2d 686, 693 (Minn. 1980).
6 Rule 1.2, MRPC.
7 Rule 1.2, MRPC, only permits limiting the scope of representation if it is reasonable under the circumstances.
9 Rules 1.2, MRPC, Comment : If a short-term limited representation would not be reasonable under the circumstances, the lawyer may offer advice to the client but must also advise the client of the need for further assistance of counsel. See also Rule 6.5, MRPC.
10 Rules 3.1, 3.3, and 11.02, MRPC.
11 The MRPC do not directly address ghostwriting pleadings and, around the country, there is split authority on the propriety of ghostwriting.
Many VLN clients are proceeding pro se, and have little or no legal experience. This presents specific challenges to attorneys wishing to provide tangible help in advice only or limited services settings. Below are some tips—gathered from our experienced attorneys—to maximize your impact:
First – set the expectation. Make sure the client knows that you have a finite amount of time for him or her. Setting this from the start makes it easier to enforce.
Give the client a chance to tell his or her story. Even though your time is limited, your empathy and kindness are so important to the client.
At some point, you may need to take control of the conversation. If the client is focusing on irrelevant facts, providing too much detail, or simply off track, interject with pointed questions that elicit the information you need. Ask for any paperwork that the client may have, as that can help focus the issue quickly.
Be proactive in providing whatever services time allows. Tasks that are easy for you can be very difficult for a client. Rather than advising the client to draft a letter, for example, provide some recommended language if you have time. Providing a brief service accomplishes much more for the client than telling him or her to take that action.1
If possible, provide specific written language for the artful portions of a pleading. If your client is pro se, a persuasive written pleading is critical, as the client has less ability to be orally persuasive. In most pro se cases, the papers are the case.
Write explicit instructions regarding next steps for the client to take, both to help him or her remember and convey it accurately later.2
VLN provides resource materials regarding the law and referral options. Use resources (including yours, such as knowledgeable colleagues) whenever helpful. If a law student is at the clinic, you may ask him or her to find relevant materials.
If you believe the client has no case, tell them so. It serves the client and the courts to provide clients with your frank assessment. Explain the reason behind your assessment—and remember that it is ultimately the client’s decision how to proceed.
Some clients do not have an issue that is legal in nature. For any social service issues, refer the client to United Way (phone number – “211”) or call yourself to facilitate correct information. In some situations, all you can do is empathize with the difficulty of the problem and acknowledge that it is beyond the scope of the clinic.
Thank you so much for your time and help to those in poverty!
1Studies show that more clients have favorable outcomes to their issues if attorneys provide a brief service, not just legal advice. Brief service includes making phone calls, writing letters, helping draft part of a pleading, etc.
2More clients have favorable outcomes with written instructions to follow.
The Rules of Professional Conduct (RPC) prohibit attorneys from filing frivolous claims or defenses. As a result, attorneys are required to counsel clients against pursing such claims. While money is not available as a means of influencing client decisions in pro bono cases, volunteer attorneys still have many tools with which to effectively advise clients against pursuing frivolous claims.” Here are some tips:
1. Set the stage. At the beginning of the representation, clearly review with the client:
Goals and objectives (and the extent to which they are attainable under applicable law)
What you will and will not do for them
Reasonable time frames for the various stages of litigation
How you will keep them informed of the status of the case
That he or she has the ultimate say on case objectives and settlement
That you have the ultimate say on case strategies
2. Establish in writing the legal issue with which you will be assisting the client. Clients often have more than one legal issue. Refer the client back to VLN for all other legal issues.
3. If a client’s request would violate a RPC, explain that you are unable to undertake the requested action and try to persuade the client to follow a meritorious claim.
4. If the client persists, you may need to withdraw. Paragraph 3 of the VLN Representation Agreement provides examples of situations under which you may withdraw, e.g.:
Rule 3.1 –Meritorious Claims and Contentions. (Paragraph 3G of the VLN Representation Agreement provides that you may withdraw if you conclude that there is very little chance of winning the case but the client insists on pursuing his or her claim.)
Rule 3.3 – Candor Towards the Tribunal. (Paragraph 3A of the VLN Representation Agreement provides that you may withdraw if the client has not told the truth.)
Rule 4.4 – Respect for Rights of Third Persons. (Paragraph 3D provides that you may withdraw if lawyer ethics prohibited you from continuing to represent the client.)
5. Empower your client. Explain the options and consequences. Your client may have goals that you would not. As long as they do not require you to violate the RPC, Rule 3.1 requires you to advocate with due diligence. Beware the tendency to second-guess your pro bono clients’ goals or to equate lack of money with an inability to know what is best for oneself.
Bottom line: just as with paying clients, Rule 1.16 (Declining or Terminating Representation) requires you to withdraw if the representation will result in violation of the RPC or other law. It also permits you to withdraw in many other situations. This provides you with some leverage to influence your pro bono client to not pursue a frivolous claim.
Submitted by Julie E. Bennett, Minnesota Office of Lawyers Professional Responsibility