Bar’s Special Committee on Greater Public Access to Legal Services report sent to the court
The Supreme Court is weighing a Florida Bar panel’s recommendations for improving access to legal services, proposals that run the gamut from a commission to coordinate access for self-represented litigants, to expanded use of certified legal interns and better promotion of pre-paid legal service plans.
“This report sets forth pragmatic and realistic efforts that can be implemented with relative ease and speed to make meaningful progress on access issues in the near term,” the report states.
The Special Committee on Greater Public Access to Legal Services was formed last year after the Supreme Court, at the Bar’s urging, declined to adopt most of the recommendations of its “Special Committee to Improve the Delivery of Legal Services” — including testing non-lawyer ownership of firms, fee-splitting, and broadly expanding the work paralegals can perform.
In a March 3, letter, justices set a December 30, 2022, deadline and directed the Bar to develop alternative proposals for improving the delivery of legal services that assure “Florida lawyers play a proper and prominent role in the provision of these services.”
Former President Mike Tanner and then President-Elect Gary Lesser formed a 16-member panel and appointed veteran board members Jay Kim and Wayne Smith as co-chairs. The panel includes Florida Bar board members, Young Lawyers Division board members, and legal aid representatives.
The panel gathered data from The Florida Bar Foundation, the Florida Court Clerks & Comptrollers, and the Office of State Courts Administrator. It studied the highest-ranking jurisdictions listed in the Justice Index of the National Center for Access to Justice, which puts Florida at No. 34 on a list that includes other states, Washington D.C., and Puerto Rico.
The panel identified three “distinct areas” to study and formed “Pro Se,” “Pro Bono and Legal Aid,” and “Affordability of Legal Services” subcommittees.
To further narrow its focus, it identified a handful of challenges. The list includes lack of funding and resources for courts and legal aid organizations; not enough lawyers handling pro bono matters; legal aid organizations with differing priorities; “SLRs” or self-represented litigants finding courts too difficult to use; lawyers costing too much; and consumers not knowing when to hire a lawyer.
“After a relatively brief seven-month period of information collection and assessment of the various opportunities and obstacles to the provision of access to legal services, the Special Committee has narrowed the broad concepts relating to the improvement of such access to those described in this report,” the report states.
The panel acknowledged that justices and Florida Bar members would look more favorably on some of the recommendations than others.
One recommendation sparked a lengthy discussion before the Board of Governors voted to approve the report — awarding CLE credit for pro bono service performed in conjunction with a legal aid program.
Supporters cited a successful Arizona program, and responses to Florida Bar member surveys that suggested it would increase pro bono service.
Smith, the committee co-chair, noted that the proposal is conceptual and would be narrowed by rule should the Supreme Court agree with the recommendation.
“It was not intended to be a recommendation of an hour [of CLE] for an hour [of pro bono service,] it was a concept,” he said.
President-elect Scott Westheimer noted that the Program Evaluation Committee studied a similar proposal before rejecting it.
“We have to make sure attorneys are educated so they are up to date on the practice of law,” he said. “At some point, I have to wonder if we’re doing our main job, which is to protect the public.”
Here are the final recommendations, as they appear in the report’s executive summary:
- To address issues faced by self-represented litigants (SRLs):
a. Permanent Committee or Commission on SRLs — comprised of representatives from the various stakeholders to serve as the central organizing body for SRL access to the court. This committee would oversee the development and implementation of standardized SRL forms to ensure uniform statewide application and create a well-defined court policy that includes how forms are developed, piloted, and It would also track data on cases involving SRLs to propose or develop pilot programs that are crafted to specific areas of law where SRLs predominate.
b. Standardized Pro Se Litigation Forms — the proposed standing SRLs committee would develop and implement SRL forms to ensure uniformity for statewide application, with the ability to be filled-in and fileable electronically. These standardized forms should be translated for non-English speaking The forms could include tools for self-guided navigation, Q&As, referrals, and links to other resources, such as legal aid organizations.
- Uniform Pro Se Cover Sheet — A uniform pro se cover sheet for SRLs on the forms proposed in (b) above would permit every pro se litigant in the state to receive the same information concerning the perils of self-representation, as well as direction to The Florida Bar’s self-help website (discussed below) for information on how to obtain a lawyer and how to be a pro se litigant. It would also permit the courts, clerks, and The Florida Bar to have a consistent method to collect critical information concerning pro se litigants.
c. Self-Help Website — With the explosive growth of for-profit websites offering legal “consultations,” it is imperative that a verified, trusted, not-for-profit website be maintained for Florida pro se litigants to ensure they have access to up-to-date information and resources without the risk of financial exploitation. Infrastructure currently exists at FloridaLawHelp.org but requires updates, curation, and ongoing maintenance. Opportunities to offset the cost include sponsorships, payments in lieu of pro bono service, and grants.
d. How-To-Videos and other Educational Materials — The Florida Bar’s Communications Committee and Young Lawyers Division should develop and disseminate educational materials to assist SRLs. These materials could be maintained on the Florida Law Help website. Voluntary bar associations should be encouraged to give opportunities for lawyers who are subject-matter experts to host webinars and other community-based training for SRLs.
e. Additional training — for judges, judicial staff, clerks, and court staff on ensuring SRLs have access to the court.
f. Pro Se Dockets — may be used in certain types of cases that have at least one SRL as a party. Procedures on this docket could be relaxed and the rules of evidence simplified, unless the judge finds the rules are necessary in a particular case to ensure a fair process. Mediation could also be required at the beginning of the case before any costly discovery has taken place. The subcommittee considered the idea of an entirely separate court, like the Texas Justice Courts, to serve certain types of cases with at least one SRL, but the formation of an entirely separate court system may be prohibitively expensive and constitutionally problematic.
g. Online courts as suggested by the Special Committee on Changes to the Practice of Law, assuming that an appropriate infrastructure for such a platform is developed for the court system.
h. Negotiated rates for online interpreters and translation services, collaboration with the courts and their current language access providers for lower rates, and captioning for online court proceedings.
i. Enhanced funding and use of a court navigator, and other similar programs through the Clerks’ offices or otherwise to assist SRLs.
- To address issues regarding pro bono legal services and legal aid organizations:
a. Legal Aid
- Given that civil legal aid programs produce $7 in economic impact for every dollar of funding, expand funding sources, including direct appropriation from the State of Florida: Florida is one of only 3 states that does not provide state funding to legal aid programs through legislative appropriations and/or court fees and fines. Funding is critical to the operations of all of the state’s legal aid The Court, The Florida Bar, the Legislature, and the Executive branch should work collaboratively to secure dependable funding.
- Expand programs that support low- income businesses. Under the Florida Community Development Legal Project, for example, five legal aid programs in the state represent businesses eligible for legal aid in transactional issues, providing potential to allow low-income communities to build wealth.
- Facilitate the increased use of certified legal interns by rule change if necessary.
- Clarify the rules to encourage legal aid programs to advertise and encourage clients to seek legal assistance earlier in the progression of their case. This might include removing the requirement of Florida Bar review of advertisements from legal aid programs and acknowledging that solicitation by a legal aid program inherently is not for pecuniary gain. This would permit legal aid programs to assist clients more proactively ahead of default deadlines, evictions and foreclosure sales and help clients avoid litigation.
- Create an office within the Court or The Florida Bar to work with legal aid programs to conduct test programs.
- Allow sole owners of corporate entities or limited liability companies to represent the entity pro se.
b. Pro Bono
- Continue to support a strong pro bono culture with court and voluntary bar recognition of pro bono contributions by Florida lawyers, as a cornerstone of professionalism.
- Partner with all of Florida’s law schools to provide pro bono legal services to low-income residents.
- Expand The Florida Bar’s communication efforts to make pro bono opportunities easier to access by featuring them on The Florida Bar website.
- Expand funding sources for the curation and maintenance of technology tools developed by The Florida Bar Foundation, including the gateway triage software currently situated on the Florida Law Help website at https://www.FloridaLawHelp.org.
- Consider encouraging pro bono participation by:
- Increasing aspirational hours for all Bar members from the current level.
- Increasing aspirational per-lawyer monetary contributions from the current level to account for inflation and provide parity with the aspirational hours.
- Providing CLE or professionalism credit for pro bono participation if done in conjunction with a legal aid program.
- Expanding The Florida Bar’s communication efforts to make pro bono opportunities easier to access by featuring them on The Florida Bar website.
- To address issues regarding the affordability of legal services:
a. Amend Rule 11-1.3 of the Rules Regulating the Florida Bar (concerning certified legal interns) to allow a level 2 background check by The Florida Bar, as opposed to character and fitness clearance by the Florida Board of Bar Examiners, and to decrease the credit hours required for participation from 4 semesters to 2 semesters.
b. Promote the use of prepaid legal services plans and continue to evaluate the accessibility of prepaid legal services plans by the public.
c. Consider whether Chapter 9 of the Rules Regulating the Florida Bar should be amended to give clearer guidance to Florida Bar members to establish and receive approval for prepaid legal services plans.
d. Develop a limited-scope representation toolkit for Florida lawyers, as provided for currently in the rules.
e. Enhance The Florida Bar’s online lawyer directory to allow lawyers to indicate if they provide limited-scope representation, reduced fee services, or pro bono services (inclusive of information regarding the type of services provided, areas of practice, and fees for such services).
f. Develop a website for the public with the answers to everyday legal problems (e.g., https://www.peopleslawschool.ca/).
h. Develop a limited pilot program that would allow Florida Registered Paralegals to provide additional limited services to otherwise unrepresented litigants. This limited pilot program would be conducted within an existing legal aid organization and would also limit the paralegals’ activities to residential landlord tenant law, on behalf of the tenant, and debt collection defense.
i. Develop a statewide online court platform for small claims cases.
Recognizing that the volume of available information regarding access to legal services far exceeds its capacity to collect and analyze it prior to the deadline for its findings and recommendations, the Special Committee suggests that continued and additional data gathering efforts would help to supplement its review.