PRESIDENT’S PAGE
James I. Stealey, President
The WV State Bar

OH JOY!!! ANOTHER SERMON!!!

"A lawyer is a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice"

Preamble, Rules of Professional Conduct
"A lawyer should render public interest legal service. A lawyer may discharge this responsibility by providing professional services at no fee or a reduced fee to persons of limited means or to public service or charitable groups or organizations, by service in activities for improving the law, the legal system or the legal profession, and by financial support for organizations that provide legal services to persons of limited means."
Rule 6.1, Rules of Professional Conduct
"I don't like work - no man does - but I like what is in work - the chance to find yourself. Your own reality - for yourself, not for others - what no other man can ever know. - Joseph Conrad
Recently, I had the pleasure of attending a conference in New Orleans sponsored by the State Justice Institute, an organization involved in the provision of pro bono legal services and assistance to pro se litigants. It was an enlightening experience, and I very much appreciate the invitation from Justice Larry Starcher to attend as a representative of the West Virginia State Bar. The conference lasted two days, and focused upon "collaboration", which was defined in this particular context as different groups working together to solve the myriad of problems associated with providing adequate pro bono services and assisting those who cannot afford a lawyer in representing themselves. I must say that I came away from the conference with an entirely different perspective on pro bono and pro se litigation, and mixed feelings. Although there were many positive aspects of the conference and the various sessions I attended, there were some things that troubled me greatly. In addition, the conference opened my eyes to some other matters which I believe the members of this Bar should contemplate.
I realize at the outset that the words "pro se litigation" are frightening to many lawyers. We see images of hoards of unrepresented litigants clogging our court system; people obtaining forms via the Internet, or directly from the courthouse, and handling their own divorces, bankruptcies and real estate transactions; doing their own wills; in short, representing themselves in legal matters in which we, as lawyers, would normally be involved (and charging a fee for our services). From the perspective of the quality of justice, we also see the potential for disaster when untrained persons attempt to represent themselves, sometimes with the help advice of non-lawyer social or community service workers, such as in the case of domestic violence and emergency child custody matters. In short, we see pro se litigation as not only fraught with problems, but as a direct attack on our profession and our ability to support our families.
This brings me to the first issue which troubles me as I reflect upon the SJI conference. Although representatives of legal service groups, courts, social service and community service agencies were well represented at the conference, the legal community was not. In fact, I was one of only a handful of lawyers in private practice in attendance at the conference, and, if I'm not mistaken, the only State Bar President, or other officer for that matter, in attendance. I simply don't see how the difficulties associated with pro bono and pro se representation can be adequately addressed without the meaningful input of lawyers in meetings such as this one. I made the point during the closing session of the conference that if the courts and legal, social and community service agencies want lawyers to accept pro se litigation as a fact of life, and lend their support to the idea, then they should not be excluded, albeit unintentionally, from such conferences. Afterwards, a number of people came up to me and told me that they agreed with my concern, and felt that in the future, lawyers should play a larger role in these meetings. It is no wonder that lawyers feel threatened by pro se litigation when they are excluded from the so-called "collaborative" effort to provide effective pro bono and pro se assistance where needed.
Second, I was astounded and alarmed by the statistics regarding the number of people who are in need of legal assistance, and the number of people who can't afford to pay a lawyer to help them. Perhaps my astonishment and alarm is the product of my own unwillingness to think about the problem. More likely, it is a product of simply not having enough time or energy, in the midst of my busy practice, to focus on the problem. Many of you may be in the same boat. In fact, I'd like to think that we're all well intentioned; that we try to follow the requirements set forth in Rule 6.1 of the Rules of Professional Conduct; but that we honestly feel we don't have the time or the energy. Of course, with regard to pro bono work, many lawyers and law firms take the obligations of Rule 6.1 very seriously, and they are to be commended for it. Hundreds of lawyers donate thousands of hours to providing legal services for the poor, for public service and charitable organizations. The State Bar is proud to recognize such contributions from individual lawyers and law firms each year with appropriate awards. The State Bar, itself, also supports pro bono legal services by operating the Lawyer Information Service, the Lawyer Referral Service, and by administering the IOLTA Program. The State Bar has historically supported legislation designed to increase funding for legal services for the poor, has provided assistance to the Supreme Court in the context of pro bono mediation of family law disputes, and has actively encouraged its members to participate in pro bono work. Although we can always strive to do more, we should be very proud of what we have already accomplished.
It seems to me that where we're falling short is in the area of pro se litigation. Perhaps out of fear or misunderstanding of the importance of assisting people who simply can't afford our services in representing themselves, we have buried our heads in the sand, or worse yet, constructed an impenetrable wall between our profession and those who advocate the need for pro se legal assistance. As I previously stated, pro se litigation is fraught with potential problems. But who, may I ask, is in a better position to solve those problems than us? Who is in a better position to judge when pro se representation is advantageous, and when it will likely be disastrous?
You know, it came to me in reviewing the results of our last State Bar Lawyer Survey that although, on average, we make a decent living at our profession, there are a sizeable number of us, particularly younger lawyers, sole practitioners and those in small firms, who, if they got into a hotly contested divorce or a complex legal dispute, could probably not afford to hire a lawyer to represent them on an hourly basis without severe hardship. Now consider the fact that there are thousands upon thousands of people in this State, hard-working, decent people, who have found themselves in the midst of a legal problem, perhaps even a relatively simple one, who cannot find competent counsel that they can afford. How many of you, for example, have turned away an hourly fee case because either the client doesn't have enough money to pay you, or the dispute, although legitimate, doesn't justify your fee in your own mind? Yet, is not that legal matter of the utmost importance to that person? Is he or she not entitled to justice? Are we not charged with insuring the quality of justice for those people?
All I ask is that you think about these facts before dismissing pro se litigation out of hand as the potential cause of the complete destruction of our profession as we know it. There ought to be a way to assist those in need, those who simply cannot afford our services, without causing our own demise. We must face the fact that pro se litigation is here to stay, that it isn't going to go away, and that we can't continue to fight it. We must embrace it; we must not be afraid of it; and we must be directly and heavily involved in the process by which assistance to pro se litigants is provided, primarily so that the quality of justice can be preserved and secured.
In summary, we know that the right thing to do is to follow the guideline contained in the Preamble to the Rules of Professional Conduct and accept responsibility for the quality of justice, not just for those who can afford it, but for those without any means whatsoever, and for those with limited means. For if they have no justice, then we have no justice. Moreover, I think we'll find along the way that insuring justice for those who might not otherwise be able to afford it will add meaning to our work and to our lives. True, no one likes to work, but there is a special pleasure in seeking, and achieving justice; in helping those in need find justice; thereby serving our fellow man, improving and protecting the legal system, improving our public image, and in just doing the right thing.
So I simply ask you, as we approach the New Year, to re-dedicate yourselves to providing more pro bono legal services for the poor than ever before. I ask you to keep an open mind on the question of pro se litigation, to get involved in the "collaborative" process by which pro se services are delivered by, for example, volunteering your time at a domestic violence shelter in your community, and by keeping up on developments in the manner in which pro se assistance is provided. I can assure you that your State Bar Officers and Board of Governors will stay on top of this situation, and will insist that we, as a profession, are given more of a voice in how the problems associated with pro se litigation and the solutions to those problems should be identified and addressed. Perhaps along the way, we'll each find our own reality. And we'll also find that ignoring these problems or putting up roadblocks will not solve them.
Oh, and by the way, Happy New Year to my friends in the Bar, their families and friends.