|Oregon State Bar Bulletin DECEMBER 2006|
By Janine Robben
Maureen McKnight has seen the view from the bench. In some ways, it isn’t much different from when she was a legal aid lawyer, scrabbling to provide representation for low-income clients. Only now those people are appearing before her, and she’s worrying about their lack of representation while wearing a robe.
"I had a child custody case last week where the child’s primary caretaker for the last four to five months had very good facts that he could not bring out," says McKnight, who has been a Multnomah County family law judge since 2002. "He might have prevailed, but he was at the mercy of the lawyer on the other side. I hear cases, at least two to three a week, where the outcome might have been different if the person had a lawyer. And I’m just one judge."
McKnight hasn’t just fretted about this issue: she helped to set up a clinic where volunteer lawyers provide free legal services to unrepresented litigants.
While some judges fear that such involvement in the provision of pro bono services might violate their judicial code of conduct, McKnight is not alone in her work. Other Oregon judges are speaking at bankruptcy clinics, enlisting attorneys to help children caught between warring parents, and even using listserves to line up counsel for unrepresented litigants who appear before them.
According to a 1999 report to the legislature on family law,1 unrepresented litigants pose a problem to more than their own interests: They cost litigants who can afford to hire attorneys money, because their attorneys often spend more time resolving legal matters when the other side is unrepresented. In addition, the report said that "Ultimately, the general public also bears the costs, providing law enforcement and social services to address problems that did not reach the family court or that the court could not adequately resolve."
But it is concern for the unrepresented litigants themselves — not their wealthier opponents or the general public — that motivates judges to encourage pro bono.
"I went to Jesuit schools," explains McKnight. "They have a very strong tradition of social justice. I was always just very interested in law as a vehicle for helping people."
Family law leads the way
Nowhere has the need for pro bono legal help been more clearly identified — and more actively sought after by judges — than in McKnight’s own field of family law.
"There is no doubt that the number of self-represented litigants in Oregon is burgeoning, particularly in the area of domestic relations proceedings," concluded a report written by Oregon Judicial Department Family Law Staff Counsel BeaLisa Sydlik in March.2
In fact, according to the report, an informal statewide study showed that in 2002 and 2003, the most recent years for which such information was available, at least one party was unrepresented in approximately two-thirds of Oregon’s most-common types of domestic relations cases.
"Clearly, Oregon is in need of more attorneys who are willing and able to provide pro bono services," wrote Sydlik. "(And) current literature resounds with a similar theme: to increase pro bono services, judicial participation and encouragement is essential."
Enter McKnight, who practiced family law for 22 years, all of them with Oregon legal aid programs, before she was appointed to the bench.
In the late ’90s, McKnight had also served as staff to the Oregon Family Law Legal Services Commission, which looked at potential solutions to the problem of unrepresented litigants in family law cases.
In 1999, the commission recommended what McKnight calls a "three-legged approach" to providing assistance when a litigant can’t afford full representation. The "legs" were: 1) the provision of model forms and instructions; 2) procedural assistance at the courthouse, called "facilitation;" and 3) at least some attorney involvement in such facilitation.
As the result of the commission’s report, the legislature passed ORS 3.428, a law allowing family law department judges to establish programs in which non-legal courthouse staff assist unrepresented litigants in family law matters.
But McKnight, and others, felt that more needed to be done.
"At least 75 percent of family law cases in Multnomah County have one or more unrepresented litigant(s)," says McKnight. "Some don’t want to be represented, but the great majority, in my opinion, lack the ability to afford to be represented or to keep paying for representation.
"Not having a lawyer involved in explaining things that do need legal advice, i.e., preparing judgments, has been a big problem, historically, with non-represented litigants," McKnight continues. "If the litigants actually make it all the way through the system, they don’t understand that the judge’s ruling is not effective until it’s written up.
In 2003, McKnight, who by then was on the bench, got together with Catherine Keenan, supervising attorney of the Volunteer Lawyers Project at the Multnomah County Office of Legal Aid Services of Oregon (LASO), where McKnight had worked previously.
"I knew the timing was right to combine LASO’s interest in classes — it had offered self-help divorce classes for years — with what courthouse facilitators were doing," says McKnight. "Having the attorney component was the third leg of the stool."
McKnight and Keenan then developed a proposal for a pro bono clinic and obtained sign-off from all nine Multnomah County family law judges.
The resulting Pro Se Assistance Project, co-partnered by the Multnomah County courts and LASO, provides volunteer attorneys at the courthouse two afternoons a week to help litigants who are representing themselves on family law cases.
"In family law, it’s difficult to find attorneys to handle full representation," says McKnight. "It’s tough to recruit from the standpoint of the emotionality and duration of the case. There are some lawyers willing to take a whole case, but not enough."
Instead, the project has adopted the "unbundled legal services" approach, using a volunteer attorney to help an unrepresented litigant understand what actions he might bring, or to write up a ruling he has already received from a judge.
McKnight, who added the project to an already-full plate of judicial and mothering duties, says the effort has been worthwhile.
"When I was at LASO, we always did a lot of domestic violence cases," she says. "We always used to struggle with how to do intake, because there was always more demand than resources. Once I had a domestic violence trial. I worked on it all weekend. I’d told my client to stay in touch, but her phone was busy whenever I called. When I met her Monday at the courthouse café, I was trying to concentrate on the issues, but couldn’t help mentioning that her phone had been busy all weekend. She told me that she had a neighbor who needed legal help who had no phone. She’d loaned her phone to her neighbor so she could call Legal Aid, and her neighbor had let the phone ring at the Legal Aid office all weekend so she would be first in line on Monday a.m. I was just so humbled by that. It has always stayed with me that she had the grace and compassion to focus on someone else."
One-of-a-kind program helps children
From two floors above McKnight’s chambers, another Multnomah County judge, Susan Svetkey, and her staff are running a different pro bono program, the only one of its kind in the country.
The program, called Children’s Representation Project, pairs volunteer attorneys with children in contested custody and parenting time cases. Unlike cases in juvenile court, representation for children in these cases is not mandated by statute.
"In the vast, vast majority of these cases, one or both parents are unrepresented," says Svetkey, who practiced for 22 years, focusing on representing children in various kinds of proceedings, before being appointed to the bench in 2000. "Typically, there’s either very high conflict between the parents or issues or allegations of drug abuse, mental illness or neglect, and the judge wants a lawyer to represent the best interest of the child."
Prior to the existence of the program, says Svetkey, "Family law judges were not, in many cases, able to tell what was going on. If two parents came in on domestic violence allegations, for example, there was no way for us to know how to make a decision, or how the decision might impact the child. We didn’t know what was in the child’s best interest."
Svetkey, who says the four-year-old program was inspired by a now-defunct and under-utilized program of the same name run by other agencies, says it currently has a list of 92 volunteer attorneys. Each of them typically handles one case per year.
"This is the only such program run out of a court in the country," says Svetkey. "It can be emotionally very difficult: the lawyers’ interpersonal skills are really called on. (But) my sense is that the lawyers feel good about doing the work, and cases are being resolved with the children’s welfare as the highest priority. I think it’s a tremendous success."
Bankruptcy Clinic Draws Judges
Elsewhere, other judges are involved in trying to expand pro bono representation for litigants involved in a different kind of personal crisis — bankruptcy.
The judges participate in a Bankruptcy Clinic that serves people from a six-county Northern Willamette Valley area who have filed, or are considering filing, bankruptcy under Chapter 7 to discharge their unsecured personal debts.
The clinic, which is co-sponsored by the bar’s Debtor-Creditor Section and LASO, is one of two LASO projects that were inspired by judges, says LASO’s Volunteer Lawyers Project Supervising Attorney Catherine Keenan.
"The bankruptcy bench saw all the difficulties pro se filers were having and approached the bar," says Keenan. "U.S. Bankruptcy Court Judge Elizabeth Perris is spectacular."
Perris credits debtor-creditor practitioner Valerie Tomasi with creating the clinic: "She was really the driving force, and she’s our leader to this day."
The clinic, which was started in 1997, runs for one hour every Thursday evening at rotating locations in Beaverton, Gresham and downtown Portland.
It starts with a general lecture about bankruptcy by Perris, another bankruptcy judge or a volunteer lawyer from government practice. "It’s those of us who can’t see private clients because of our jobs — and occasionally somebody in private practice — as a way of contributing," says Perris."
The lecture is followed by consultations by volunteer attorneys with clients who previously have made appointments through LASO.
Perris says she usually attends two to three times a year. "The whole design of the clinic is that nobody should necessarily go every month, but collectively we provide a fair amount of services," she says. "The Debtor-Creditor Section can feel good about it."
Perris, who had a bankruptcy practice representing businesses and trustees, also was a bankruptcy trustee before becoming a bankruptcy judge 22 years ago. In addition, she says, she’s been active in the Debtor-Creditor Section "for what seems like forever."
Even at this senior stage of her career, Perris says she doesn’t begrudge the time her clinic work adds to her workload. "When you’re a professional," she says, "you make a commitment to provide more than services for money. I like to think that part of our job is community outreach."
Judges’ work raises concerns
The issue of whether judges can be involved in efforts to expand pro bono representation without violating their states’ codes of judicial conduct has been discussed at judicial conferences across the country.
The Oregon Judicial Department’s Sydlik, who wrote the report on "Judicial Involvement in Promoting Pro Bono Services in Oregon" that was released in March, found that the supreme courts in many states had considered and adopted many rules changes to accommodate such efforts.
As a result, wrote Sydlik, judges in various states are allowed to solicit and recruit attorneys through such means as: education; creating lists of volunteer lawyers to which court staff can refer litigants; helping to train and publicly recognize volunteers; and serving as advisers to pro bono programs.
They also, in some states, are allowed to specially accommodate pro bono attorneys by providing flexible scheduling (i.e., setting all pro bono cases on one day and/or, if possible, before the same judge, giving the cases calendar preferencing, and/or setting them at other than the court’s usual hours); providing courthouse space for clinics; ordering automatic waiver of filing fees; permitting depositions to be taken without a stenographic record or by phone; and recruiting volunteer court reporters and experts.
However, according to Sydlik, "The Oregon Code of Judicial Conduct does not specifically address whether judicial conduct that supports the provision of pro bono services is permissible. For example, can judges write letters encouraging lawyers’ participation in a pro bono program? Can judges adopt calendaring strategies that accommodate pro bono attorneys?"
Sydlik also noted that there is no formal written opinion from the Judicial Conduct Committee of the Oregon Judicial Conference to provide judges with guidance.
As a result, Oregon judges vary widely in their views of whether and — if so — how much judicial involvement in pro bono efforts is appropriate.
"Judges are sometimes frustrated when they look for ‘permission’ to engage in certain activities and can’t find it in our Oregon Code of Judicial Conduct," says Oregon Court of Appeals Judge Ellen Rosenblum. "That is probably because, unlike some states, we have a rule-based code, (meaning that) if it’s not prohibited, it’s allowed."
Svetkey, who runs Multnomah County’s Children’s Representation Project, says "nobody has ever expressed concern about the existence of this program" to her.
"I can’t figure out why anybody is concerned about this," she says. "It seems clear to me than an effort to provide pro bono representation for children in these cases can only serve to promote justice in the family law courts. It’s a program that works, and I don’t know why anybody wouldn’t think it’s a good idea."
But Multnomah County Judge McKnight says she personally heard some negative feedback when she helped to start the Pro Se Assistance Project in 2003.
"I trained at the organizational meeting and recruited attorneys," she says of her early project involvement. "I was very new on the bench, very enthusiastic. Then some more-senior judges mentioned to me, informally, that there were some opinions and feelings that this kind of particular support for pro bono might not be appropriate because of the possible or perceived advantage to an attorney or his client."
Clackamas County Judge Steven Maurer, who is chair of the Judicial Conduct Committee of the State Judicial Conference, agrees that judges have to be particularly wary of the preferential treatment of pro bono attorneys and/or cases that the judicial conduct codes in some other states now allow.
"We have to be careful not to move too far into a situation where we create the appearance of favoring some litigants at the expense of others," he says. "The integrity of the process requires that we be blind to the compensation, or non-compensation, of the lawyer."
And U.S. Magistrate Judge Janice Stewart says that judges have to be careful not to overuse their influence. "Normally, judges are very reluctant to call attorneys and ask them (to do pro bono)," she says. "It can be perceived as putting pressure on them." (Instead, Stewart uses the Oregon Women Lawyers’ and Federal Bar Association’s listserves to send out requests for "assistance…in finding an attorney" when the federal court’s pro bono panel fails to produce a volunteer.)
Meanwhile, McKnight now chairs a committee — the Self-Representation Subcommittee of the State Family Law Advisory Committee — that is studying whether changes to Oregon’s judicial code are necessary.
"It would," she says simply, "be helpful to get clarity."
1. Oregon Family Law Legal Services Commission Report.
2. "Judicial Involvement in Promoting Pro Bono Services in Oregon: Considerations and Nationwide Perspectives," March 27, 2006.
ABOUT THE AUTHOR
Janine Robben is a frequent contributor to the Bulletin. She has been a member of the Oregon bar since 1980.
© 2006 Janine Robben