Pro Bono Moments

In 1974 the work of providing legal services to all low income people in America became the responsibility of the federal government with the passage of the Legal Services Corporation Act of 1974. During the "war on poverty" days of the mid-sixties, urban offices were funded under the Economic Opportunity Act of 1964. Prior to that, the work of providing legal services for the poor was left, largely, to locally funded legal aid societies and the good works of attorneys who saw it as their duty to help.

With a shrinking middle class and a federal system already adequate only to provide a small part (by federal estimation, only 20% ) of the legal service need, legal communities around the country are now responding with imaginative and innovative initiatives to pick up the slack. In the year 2000, the State Justice Institute, a non-profit organization established to award grants to improve the quality of justice in state courts nationwide, awarded $70,000 to the Supreme Court of West Virginia to develop projects to assist self-represented litigants, including: a video and brochure explaining basic legal structure and practical tips for the pro se litigant; the compilation of data relating to the number and nature of cases brought by pro se litigants; and training for court personnel and law librarians who often need to discern the difference between providing legal information, which is permissible for a non-attorney, and legal advice, which is not. South Carolina's newly formed Access to Justice Commission might be a good forum to encourage and support such study in South Carolina.

Small claims and magistrates courts are designed to encourage pro se litigation. In the future, the role of such user-friendly courts is likely to grow as the limit of their monetary jurisdiction grows and potential litigants gain more access to legal advice and brief services about pro se litigation.

Programs such as the law student practice rule further expand access to legal assistance. In addition to their educational value for the student, such programs operate to serve clients by leveraging the services of a single attorney to serve many small claims or family court litigants.

As self-help in the courts becomes more prominent, ethical questions are presented for the attorney who assists the pro se client.

  1. Many of the approaches described above involve attorneys in relationships with clients that are piecemeal by their nature, in that the attorney might only agree to provide advice or a brief service relating to only a fragment of the litigation at hand. "Unbundling" of legal services is the term often used to describe the contract between an attorney and client by which the attorney sets out the limitations of the services which he or she intends to perform, although it may be only a small piece of the litigation. The limitation should be reasonable under the circumstances. Such agreements, not necessarily written with great formality, are generally acceptable and a good tool to assure that clients have given their informed consent to the arrangement. See Rule 1.2, R.P.C., Rule 407, SCACR.
  2. Where the attorney "ghost writes" a pleading for a client, courts have questioned whether the involvement of the attorney should be divulged to the court. In the case of In re Richardo Mungo 305 B. R. 762 (Bank. D.S.C. 2003), ghost writing was deemed an unethical practice under the Bankruptcy Rules and the Court held that an attorney should disclose involvement to avoid violating Rule 8.4(d), RPC. At the same time, the United States District Court for the District of South Carolina web site provides a pro se manual for pro se litigants. Pro se practice is allowed in virtually all family court proceedings, where there appears to be no requirement that lawyers assisting pro se litigants divulge their involvement to the court. There appears to be little guidance available as to the specific ethical responsibilities of an attorney advising a client who is about to appear pro se in a trial or motion hearing.

One might expect that the burgeoning use of the innovative approaches described above would prompt further examination into the number, nature and ethical requirements of cases brought and defended by pro se litigants.

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