The Pro Se Quandary

by Robert L. Jeffs
On October 13, over 300 new attorneys were admitted to practice in Utah. With the economic downturn, many law firms have curtailed hiring and, in some circumstances, laid off attorneys. As a result, the numbers of unemployed and underemployed attorneys, as well as attorneys who are trying to establish a new practice, have swelled.

While the decision of firms to limit their hiring may be due, in part, to decreases in demand for certain types of legal services, the demand for legal services in Utah in areas such as divorce, bankruptcy, etc. is actually increasing, as reflected in the substantial increase in court filings. In addition, the courts are being inundated with pro se litigants. That flood of pro se litigants bogs down the courts as the clerks’ offices and courts try to shepherd cases without the expertise of attorneys. Other areas of practice such as foreclosures, loan workouts and modifications, collections, and business liquidations, to name a few, have also experienced increased demand. Yet, those same potential clients see our services as unattainable and beyond their means.
Programs and services like public defenders, Utah Legal Services, Legal Aid of Utah, the Disability Law Center, and Tuesday Night Bars throughout the state provide some limited legal representation for the poorest members of our community. But, for a large segment of the middle class, obtaining affordable legal services is more difficult. To an increasing segment of society, we are becoming less relevant.
Real or imagined, we are increasingly perceived by consumers as a service only available to the wealthy. I do not believe that the public perceives that attorneys are not needed to access the judicial process. On the contrary, the judicial system, with its abundant rules and procedures, as well as the mass of laws that govern a particular dispute, makes the services of an attorney exceedingly valuable, if not essential. But, therein lies the frustration of the public. Steve Burt, a perceptive public member of the Bar Commission, expresses this frustration well with the observation that the judicial system is the only branch of government that “requires” an attorney for public access. Even if it does not “require” an attorney to access the courts, it is difficult without an attorney. There is a real danger that this frustration may result in changes to allow non-lawyers to represent individuals and businesses in areas currently requiring attorney representation.
I believe that our profession has an obligation to provide a means for the public to obtain more affordable legal services, and to assist the public in accessing the judicial system. Society is better served if our profession provides counsel and direction in the formation of business arrangements, in the formulation of estate plans, and in the myriad of other services that we provide. Our profession will reap long-term benefits by broadening the base of clients that enjoy legal representation. In addition, the efficiency of the courts would be improved if more litigants before them had attorneys representing them. I am not suggesting that the public has a right to legal representation without the obligation to pay a reasonable amount for those services. Rather, if we want to preserve our judicial system, and our right to practice our profession, we should have programs in place that make available reduced-cost legal representation for those with modest or limited means.
The public, the profession, as well as the judicial system would suffer if public frustration with the cost of legal services evolved into a movement to allow non-lawyers to represent individuals or businesses in areas previously limited to representation by attorneys. I have discussed with Bar leadership from other states their experiences with the nightmare of expanding representation of litigants to non-lawyers. The public becomes easy prey for quasi-professionals who have no actual knowledge or expertise. The courts experience similar, if not heightened, difficulties dealing with non-lawyer representation that they struggle with from pro se litigants. The non-lawyer “professionals” are not subject to discipline or the rules of professional conduct like attorneys. Additionally, the clients of these supposed “professionals” are subjected to further injustice when being represented by individuals who are unable to effectively navigate the system and actually do harm to their clients’ causes. The resulting harm merely breeds further distrust of the judicial system.
Like many of the members of our Bar, I am a member of a small firm whose clientele has always been predominated by middle class individuals and small businesses. Creative fee structures such as contingent fees or blended fees of reduced hourly rates combined with a contingent fee component, flat fees, and discounted legal services have long been a part of how we serve our core clientele. The rules adopted by the courts for limited-scope representation are an additional tool available for Bar members to use to provide legal services to a broader range of clients who may not be able to afford comprehensive representation.
The current market forces with increasing numbers of underemployed attorneys provide us an opportunity to reassess how we deliver our services, how those services are priced and to try to match those underemployed attorneys with the unmet needs of the public for more affordable legal services. The Bar intends to take a leadership role in forging a process or program to expand the availability of affordable legal services to the members of the public with modest means. I welcome your thoughts and suggestions.

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