Articles
Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Unmet legal needs aren’t going away

In the spring of 2018 I was asked to appear in front of the Minnesota Supreme Court Advisory Committee on Rules of Civil Procedure. Our MSBA President, Sonia Miller-Van Oort, was not available, so the task fell to me. The purpose of my appearance was to support the MSBA’s request to amend the rules to require 50 percent of cy pres funds in state court class actions to go to civil legal services. The proposal was unanimously supported by the MSBA Assembly in 2016. The Court amended the rule to require notice to qualified legal services programs and gave the district court judges the authority to notify other potential recipients. 

In order to prepare for the meeting I met with Cathy Haukedahl, who was then the executive director of Mid-Minnesota Legal Aid. She provided me with an education on the unmet legal needs in our state. 

At that point I had been practicing in the areas of workers compensation and insurance defense for 34 years. In almost every case I defended, the plaintiff was represented by an attorney. When I encountered the occasional pro se plaintiff, it was clear they faced severe challenges navigating our legal system. Cathy told me that 60 percent of clients who qualified for legal aid were turned away. They weren’t turned away because their case lacked merit. They were turned away based on lack of capacity. If they got turned away by legal aid, what do you think the chances are they hired a private attorney? We all know the answer to that question is zero. 

Civil Gideon?

But even if they are not represented, they still need to deal with their legal issue. This means that they go it alone. This explains, in large part, why our courts are flooded with pro se litigants. This brings me to a question that we as lawyers need to answer. How do we provide legal representation to everyone in our legal system? Put another way, do we need the civil version of Gideon vs Wainwright? 

From 2015 to 2018, the MSBA asked two task forces to look for ways to provide services to people who can’t afford a lawyer and don’t qualify for legal aid. In the spring of 2018 proposals to allow Designated Practitioners (AKA Legal Practitioners) or Limited Liability Legal Technicians came before the MSBA Assembly. (You can read the task force report at www.mnbar.org/ALM.) After a long and spirited debate, the proposals were voted down. Issue resolved, right? Wrong.

The need persists

At the MSBA convention in June 2018, Chief Justice Gildea gave her State of the Judiciary speech. She is so concerned about the number of pro se litigants in the judicial system that she wants to take another look at alternative legal models to solve that problem. Just because we declined to move forward on two proposals does not mean others will sit still and refrain from providing their own solutions for the problem. It could be in the form of Limited Liability Legal Technicians, or computer-based legal services, or mandatory pro bono services, or increased lawyer registration fees dedicated to legal aid. 

I do not have a solution to this problem. I am writing this article to make everyone in our bar association aware of the issue. Our system has a problem. I hope that our members can lead the way in finding creative solutions before solutions are thrust upon us.

 

PAUL GODFREY is the Managing Attorney for the Twin Cities Branch Legal Office for Farmers Insurance. He is a trial attorney. He has tried more than 40 cases to jury verdict, with issues ranging from claims for whiplash to claims for wrongful death. 

Leave a Reply

Articles by Issue

Articles by Subject