Bring On the Pettifoggers: Revisiting the Ethics Rules, Civil Gideon, and the Role of the Judiciary

Abstract

This article focuses on a judge’s inherent authority to appoint pro bono legal counsel for civil litigants and the tension between the Model Rules of Professional Conduct and the Model Rules of Judicial Conduct. This paper is rooted in the American Bar Association’s Commission on the Future of Legal Services 2016 report, referred to as the “Future’s Report” (found at http://abafuturesreport.com). This report addresses the changing needs of the indigent population and the legal profession’s special obligation to provide accessible and affordable legal services. In addition to summarizing the findings in this report, I capitalize on the judge’s authority under ABA Model Rule 6.2 to appoint counsel to represent indigent individuals. I also address the ABA Model Code of Judicial Conduct which permits judges to encourage pro bono activities but not explicitly to appoint lawyers in indigent cases, in contrast to the Model Rules of Professional Conduct. I also discuss the moral and professional responsibility of lawyers to provide pro bono legal services. Many scholars have argued that mandatory pro bono is unconstitutional. I offer other recommendations to increase access including adopting limited practice rules, developing pro bono appointment systems, creating incentives to encourage rural practice, and amending the Model Rules of Judicial Conduct. To that end, the article also explores the historical use of a “pettifogger,” a licensed professional who is trained and licensed to handle small, routine claims in magistrate courts. Additionally, I cover the requirements for Limited License Legal Technicians in Washington State and how other states could license non-lawyers for certain legal matters. The article analyzes other profession’s use of paraprofessionals such as in the medical profession which certifies “physician assistants” and “nurse practitioners” who provide limited patient treatment. This is a timely discussion as several states have recently filed suit against their state bar associations challenging annual bar dues. In Fleck v. Wetch, 139 S. Ct. 590 (2018), the United States Supreme Court remanded a First Amendment challenge to the mandatory fees that attorneys pay to their state bar of North Dakota. The Court requested briefing on the effect of the U.S. Supreme Court’s decision in Janus v. AFSCME, 138 S. Ct. 2448 (2018) in which the Court overruled precedent and concluded that requiring a monetary contribution to a union violates the member’s constitutional guarantees under the First Amendment. Other states have submitted amicus briefs so this will be an interesting issue to incorporate, even peripherally. I would like to situate this paper within this discussion since the notion of mandatory judicial appointments for indigent clients has also drawn constitutional criticism. I have argued that judges should be using their inherent authority to appoint counsel for indigent civil clients, particularly in the class of cases embodying “poverty law” issues, such as housing, child support, and government assistance. This argument obviously has “Civil Gideon” overtones -- the doctrine delineating when, if ever, indigent civil litigants are legally entitled to counsel appointed and paid for by the state. Gideon v. Wainwright, 372 U.S. 335 (1963).