For Juneteenth.

There have been a lot of developments in legal ethics both nationally and in Tennessee over the last few weeks, and I hope to be catching up on discussing those in posts over the coming weeks.

But not today.

Tennessee like most jurisdictions has a version of RPC 6.1 about pro bono service and calls for an aspirational goal for each lawyer to deliver 50 hours of such service and while those hours are supposed to be primarily directed at actual legal representations, the rule does also address the ability to do so by participating in activities for improving the law, the legal system, or the legal profession.

In a small, personal effort to do a little bit of that today. I want to do two things.

First, with full awareness that it includes within its recitation of shameful events that have been whitewashed from the teaching of history a massacre in my home city of Memphis, I encourage everyone who is reading this to go take 6 minutes to watch this video that has been put together by the Equal Justice Institute in connection with the release of its Reconstruction in America report: https://youtu.be/HRj35PtXnLs

If it moves you to do so, you can, through the www.eji.org website get a copy of the full report to read.

Second, to highlight just one vein of examples of how these problems are still ongoing, it is hard to pay attention these days to all of the important news – as it is constant – but a story that is not yet getting the scrutiny it deserves is that there have now been 6 people of color found dead hanging in trees over the last several weeks in locations spanning from California to Texas to New York to Oregon. Each of these has been initially reported by police to have been suicides.

You can read one of the most recent articles about this here.

I can only speak for myself, but I do not believe at all that any black man, woman, or child in 2020 in the United States who commits suicide would do so by hanging themselves from a tree.

When you look around at what is happening in this moment in history, the Occam’s Razor answer to this is not to believe the contents of the initial police reports but to reach the conclusion that it much more likely that these are homicides.

They deserve justice.

A timely reminder about the importance of pro bono efforts

On March 31, the Tennessee Supreme Court prudently decided not to turn Tennessee’s mechanism for lawyers to provide information about how much pro bono they perform each year into a mandatory obligation.   Mandatory reporting could have placed lawyers at risk of the administrative suspension of their license for being unwilling to provide such information.  Some might see it as a counter-intuitive statement, but declining to turn this into a mandatory obligation was the best thing the Court could do in the long run for pro bono participation in Tennessee.

Just like many other jurisdictions across the United States, our bench and bar has put a significant amount of effort over the last few years into attempting to encourage lawyers to do pro bono and, for those lawyers already doing so, to try to do more of it.  Tennessee has, for several years, given CLE credit to lawyers for their pro bono efforts – an approach that has gained more acceptance in other states as well, including Louisiana most recently.

As part of the effort, and to get a better sense of how much pro bono is being performed, Tennessee adopted a voluntary pro bono reporting system to ask lawyers on their annual registration statements to provide some data about how much pro bono they performed in the prior year.  Our ethics rules, in RPC 6.1, set a target goal of 50 hours each year, and the rule provides several categories of activities that can qualify.  (RPC 6.1, however, is the only purely aspirational ethics rule we have; failure to perform pro bono is not something for which a lawyer could be disciplined.)

The March 31 order came in response to an effort by the Court’s Access to Justice Commission to require lawyers to report how much pro bono they did (even if it was 0 hours) and that would have made the failure to report the kind of misstep that, like not performing required CLE, not paying annual registration fees, or not certifying IOLTA compliance, could lead to administrative suspension of a lawyer’s license.  The Tennessee Bar Association opposed such an effort, in part, on the basis that the idea of a lawyer losing the right to practice even temporarily merely for not providing information about efforts made in a realm that is entirely voluntary and aspirational was quite troubling.

Despite a complete lack of proof that there was reason for concern, a strong undercurrent exists within the bar that the end game is to eventually make pro bono a mandatory requirement for lawyers.  Hopefully, the Court’s order will go a long way toward quelling such concerns as unfounded while, simultaneously, allowing the Access to Justice Commission, and others who dedicate their time and talents toward increasing pro bono participation, to find new ways to better communicate to lawyers both the need for, and the benefits of, voluntarily providing information about the good work they do in our state.

A little more insight into the issue of LLLTs – California

Pretty quick on the heels of this prior post, we now have a further development from the West Coast on the potential utility of limited license legal technicians, i.e. “nurse practitioners for the legal profession,” in providing better access to justice.  The California State Bar has now put out for public comment a number of proposals contained in a Civil Justice Strategies Task Force Report and Recommendation focusing on ways California might reduce its own “justice gap.”

The report and recommendation covers quite a few topics, but I think it worth knowing that it does specifically call for studying how to design an LLLT pilot program.  The pilot would be focused on one subject matter area of the law, the report does not pick one definitively but mentions that family law, landlord/tenant, and certain consumer cases were discussed.  The California task force also recommends another pilot program that would explore another approach to expanding access to justice that would use “navigators” who would help self-represented litigants and would even permit them to sit at counsel table though not speak to the court during proceedings.  To give this something of a frame of reference for Tennessee lawyers, a comparison that would not be “apples to apples” but would at least still involve comparing “apples” to something else that is, at least, a fruit would be like CASA but for grown ups.

A little over a year ago, New York launched such a program in landlord/tenant matters and consumer debt cases, which lists among the things that these specially-trained non-lawyer navigators will provide to self-represented parties – “moral support.”

For those who might be so inclined, the public comment deadline out in California is May 11, 2015.

Washington and Its LLLTs

One likely future facing the practice of law in the U.S. is now on display in the State of Washington and getting some high-profile publicity this week.  This article in The Washington Post tells you almost all you need to know about the introduction of Limited License Legal Technicians (or “nurse practitioners of the legal world” as the article denominates them) into the legal marketplace.

Whether this kind of initiative would ever obtain approval in Tennessee is less than clear, but many aspects of what drove this result in Washington are equally true in my state.  It is undeniable that Tennessee also has too many lawyers on the one hand and not enough services being delivered to people in need of legal help on the other. Our Supreme Court has pushed and pushed access to justice and increasing pro bono participation as its primary initiatives for several years now.  (In fact, so much so, that if you surveyed lawyers around the state of Tennessee, you’d likely hear some real sniping and disenchantment about what some feel is browbeating at this point.)  Yet, the justice gap in Tennessee is still very, very real.

Perhaps the most revealing news is the statement that California, Oregon, Colorado, and New Mexico may already be exploring following Washington’s lead.  It is difficult to argue, in a vacuum, that the imposition of the lawyer ethics rules on LLLTs wouldn’t be just as likely to provide significant protections to clients as the imposition of those rules on lawyers is.  As the piece reveals, most of the new LLLTs in Washington are people who were serving as paralegals – a group we already count on to some extent to be expected to be able to comport their conduct with the professional obligations of lawyers (or else, we couldn’t really justify a rule such as RPC 5.3).

Perhaps more importantly, from a practical perspective, it seems hard to believe that those clients — who otherwise end up adrift on their own trying to handle their own legal needs — wouldn’t consider it to be a risk well worth undertaking to pay lower fees for the services and take their chances that the equivalent of nurse practitioners can provide them with competent services at least as ethically as many lawyers would do.