REMOVING THE LAWYER FROM THE LAW: BOLSTERING INFORMATION AND TOOLS FOR PRO SE LITIGANTS.

• Date: 01 July 2023
• Author: McGuire, Hayden
• Published date: 01 July 2023

I. Introduction

The ability to represent yourself in a judicial proceeding, a process intended to determine what is just and true, is necessary to American society and participatory democracies at large. (1) A right to self-advocacy is read through the Sixth Amendment; its primary association is with criminal litigants after denying a court-appointed attorney. (2) Only associating self-represented litigants ("SRLs") with the criminal system is taking a narrow view. (3) Throughout many jurisdictions, the frequency of SRLs in civil disputes has increased tremendously over the years. (4) Unfortunately, the outcomes for SRLs appear worse than those who have representation. (5) Their rising frequency and disparate outcomes have led those most familiar with the situation to call the current situation a crisis. (6)

For instance, SRLs are common in Massachusetts housing courts; the vast majority of tenants appear pro se while most landlords have an attorney. (7) This difference in representation is emblematic of the preexisting power disparity that exists between tenants and landlords. (8) In Massachusetts, using the courts to remove a tenant is formally and procedurally called a Summary Process. (9) Like all judicial proceedings, a core principle of summary process evictions is judicial efficiency. (10) One consequence of a desire for efficiency in cases involving SRLs and their housing is the potential to create rapid homelessness due to litigants not being aware of their rights; from when a landlord files to removing a tenant can take as little as seven weeks. (11)

It was a 'no fault' eviction because the family--who had lived in the
                same three bedroom apartment in Weymouth for 14 years--had done nothing
                wrong.... [According to O'Connor, six days after getting the eviction
                notice, she received a text explaining that the apartment was being
                renovated and then the rent would go up by nearly 60%. She couldn't
                afford the rent hike or, she soon discovered, the price of apartments
                across her city. The eviction notice gave her family just 30 days to
                find a new place to live
                

The reality is, nine out of ten tenants are self-represented, and they operate in a fast-acting system designed for the professional lawyer, not them. (12) There have been a variety of efforts and programs developed to assist pro se tenants, one of note is Massachusetts Defense for Eviction ("MADE"), developed by Greater Boston Legal Services. (13) MADE is an internet-based tool that assists SRLs facing evictions with drafting responsive pleadings and helps them attempt to dismiss and delay complaints. (14) Its goal is to turn a set of complex forms and procedures into questions written in plain language, removing legalese from the processes and providing basic next steps for tenants to follow. (15)

A similar scenario was playing out with SRLs in New York's small claims courts. (16) There, litigants often defaulted due to an inability to respond adequately, stemming from a lack of information and advice. (17) This was and continues to be, an access to justice crisis. (18)

To combat the growing number of defaults among SRLs, a non-profit called Upsolve designed a program where non-lawyers would assist self-represented litigants with responsive pleadings and provide them basic legal advice on their case. (19) Typically, drafting documents and the provision of legal advice requires a license to practice law and is reserved for attorneys. (20)

Due to concerns about potential violations of the unauthorized practice of law ("UPL") regulations in New York, Upsolve sought injunctive relief in Upsolve Inc., et al. v. James. (21) Upsolve claimed that the conduct of their program was speech, and therefore had first amendment protections. (22) The injunction was granted allowing

Upsolve to start its program without being stopped by UPL regulations, a monumental moment for pro se advocates. (23)

The rate of self-representation is rising in civil courts around the United States and the outcomes of appearing pro se are almost always worse than their represented counterparts. The programs in Massachusetts and New York supply examples of effective ways non-lawyers can use technology to give legal assistance in a specific way to mitigate the effects that a lack of representation has on litigants. By making our system more accessible to pro se litigants, we can create a procedural structure where individuals engage more directly and effectively with one of our core law-making systems, likely improving their systemic trust. National adoption of these types of programs likely face barriers to being implemented due to regulations on the practice of law in many jurisdictions. Efforts to empower SRLs must be encouraged by regulators by creating avenues for these types of tools and programs. Though, this push for an inclusive legal industry must be tempered against the risks of litigants receiving incomplete information and advice. With proper limits, those potentially disastrous outcomes could be mitigated and the litigant's autonomy and access to the state's dispute resolution mechanisms increased.

II. History

A. The Unauthorized Practice of Law and Free Speech

The unauthorized practice of law is a regulation that exists in all jurisdictions within the United States that restricts the ability of unlicensed persons to "practice law". (24) Because every jurisdiction defines and justifies what constitutes the "practice of law," the definitions and scope can vary greatly. (25) However, there are common touchstones, with the most prominent being the concern for consumer protection. (26)

The value of consumer protection leads to rules that attempt to minimize litigants accidentally foreclosing legal remedies, and creating awareness of the impacts that enforcement of rights could have on others. (27) This goal is necessary, as legal services that are inadequately delivered can have devastating ripple effects on other aspects of a person's life and liberty. (28) The disastrous effects of this are particularly salient in immigration settings when litigants work with Notarios: individuals who misrepresent themselves as able to provide legal advice on immigration law, who can inadvertently or maliciously create problems for litigants. (29) Still, disasters happen when individuals receive inadequate advice from licensed attorneys. (30)

The robust protections provided to speech conflict with UPL laws. (31) Free expression and exchange of ideas are long respected and appreciated principles within American society. (32) Due to the extreme importance the United States places on the freedom of speech, strict scrutiny--the highest standard of judicial review--is applied to regulations that limit the content of speech. (33) Common justification courts use for maintaining the validity of UPL statutes is by interpreting practicing law as conduct, not speech, meaning it does not require a strict scrutiny analysis. (34)

There is no jurisdictional cohesion on how to define what it means to "practice law." (35) You find fragments of what it means throughout case law and statutes in each state, but there is no uniformity. (36) Both litigants and those with legal knowledge face difficulty in understanding when providing someone with legal information become the practice of law. (37) The American Bar Association's descriptions of what constitutes practicing law provide little assistance in drawing distinctions between what is permitted and what is not; the Model Rules of Professional Conduct even states "the practice of law is established by law and varies from one jurisdiction to another. Whatever definition, limiting the practice of law to members of the bar protects the public against rendition of legal services by unqualified persons." (38)

Providing "legal information" is an activity some states allow individuals to do. (39) This has resulted in attempts to create distinctions between information and advice, often geared toward court employees. (40) The idea of information and advice can be thought of as existing on a spectrum, with information being devoid of specific context and advice being very fact specific, forming some subjective conclusions to the litigant. (41) This difference that sounds simple in the abstract breaks down quickly when you consider scenarios court staff, the audience for those guides, will face. (42) This led commentators to describe the distinction between information and advice as "hazy." (43)

B. Self-representation in the Massachusetts Housing Courts

Housing courts within Massachusetts were created to provide a forum exclusive to housing proceedings. (44) They hold concurrent jurisdiction with District Courts on issues involving housing law, which are often landlord-tenant disputes, although it also includes foreclosure proceedings. (45) Housing court is typically viewed as the more tenant-friendly forum due to the resources available, like the Lawyer for the Day Program, and the experience the judges have on housing issues. (46)

The rate of inequality in representation between litigants in housing court is stark--with one report finding tenants are represented in less than nine percent of cases while landlords are represented in almost eighty percent. (47) There have been efforts to get representation and information to more litigants by many organizations. (48) However, due to the high caseload of just summary process complaints in the state, this is an insurmountable task, leading to a large number of defaults. (49) Although many of the efforts are geared towards tenants and promoting housing stability, landlords can also receive assistance when appearing pro se. (50)

Representing litigants directly is not the only way to provide assistance and improve their access to justice. (51) For example, with the development of a tool like MADE, a self-represented tenant can effectively respond to a complaint for summary process with many forms critical to the...