Washington Lawyer

From the President: ‘Low Bono’ Lawyers Fill Void in Family Court Proceedings

From Washington Lawyer, February 2014

By Andrea Ferster

president_fersterFamily law is often mentioned as an area that exemplifies both the challenges of and opportunities for addressing the access to justice gaps for people of modest means. Many of the programs implemented by bar associations to make reduced-fee or “low bono” legal services available to persons of modest means focus on family law matters such as divorce, custody, and child support.

Here in the District, nearly one-third of the self-represented parties who visited the Self-Help Center at the family court of the D.C. Superior Court in 2013 self-reported that their income exceeded 200 percent of the federal poverty guidelines.[1] These parties do not qualify for pro bono legal services, but they can’t afford a market-rate lawyer. This is where private lawyers providing reduced-fee or low bono legal services are needed.

In fact, low bono lawyers have an established and respected place in the family court. The fees paid by the District of Columbia to lawyers serving on the family court panels for child abuse and neglect, juvenile delinquency, mental health, and special education cases are statutorily capped at an hourly rate of $90, with an overall cap on fees depending on the complexity of the case.

Why do lawyers do this work? As Deborah Cason Daniels, president of the Family Court Trial Lawyers Association, points out, “because they are committed to public service and to helping families who are struggling.” Julie Petersen, executive director of the Montgomery County Bar, also says that “the desire to perform a public service” is one of the reasons lawyers participate in Montgomery County’s reduced-fee lawyer referral service.

And Rule 6.1 of the D.C. Rules of Professional Conduct confirms that providing professional services “at a substantially reduced fee, to persons and groups who are unable to afford or obtain counsel” is one way for lawyers to discharge their “pro bono public service” responsibilities.[2]

Connecting lawyers willing to charge reduced fees with modest-means clients is only part of the solution to the access to justice problems facing moderate-income parties in family court. Promoting access to justice for all in our diverse community also requires innovation.[3] 

One such innovation is a proposal by the D.C. Bar Pro Bono Program and the D.C. Access to Justice Commission to expand the D.C. Superior Court’s rules to formalize the practice of “limited scope representation,” or “unbundled” legal services.[4] If adopted, rule changes would allow a party to reduce legal costs by retaining a lawyer for only a limited phase of a proceeding.

Collaborative practice, a successful mechanism for out-of-court dispute resolution, is another way to make legal proceedings more affordable. Collaborative law is a form of limited scope of representation—the lawyers represent the parties only for settlement purposes; it is a holistic approach, bringing a variety of professionals together to help the parties reach resolutions that work for the entire family. According to Barbara Burr, a collaborative lawyer, collaborative practice has a 90 percent to 95 percent success rate because the lawyers’ focus is on settlement.

Even though costs are reduced, a collaborative approach may still be too expensive. This is where the Collaborative Project of D.C. would step in. Modeled after the highly successful approach in Maryland,[5] the Collaborative Project of D.C was formed to link low- and moderate-income parties with collaborative professionals willing to provide services on a pro bono and reduced-fee basis.

Many of these innovations also will improve access to justice for those living in poverty. The D.C. Bar Pro Bono Program continues to make legal resources available to help pro se litigants in family court. In addition to the Pro-Se-Plus Divorce and Custody Clinics, in January 2014 the Pro Bono Program rolled out six exciting interactive “A2J” (Turbo Tax-like) family law interviews for self-represented litigants. People will now have 24/7 access to these interactive pleadings, which answer frequently asked questions along the way. The interactive interviews will allow litigants to use pro se model pleadings so that the Self-Help Center staff can focus their energy on more complicated issues and assist even more individuals. Recognizing the need to expand access to pro bono counsel in the area of family law, the D.C. Bar Pro Bono Program also placed 25 percent more family law cases with lawyers this past year.

The D.C. Bar is also working collaboratively with the D.C. Superior Court to help ensure that our family court continues to remain a national model of excellence that affords prompt and efficient access to justice for all parties. In April 2013, the D.C. Bar Family Law Task Force released a comprehensive report with recommendations to expand access to justice and to improve the administration of justice in the Domestic Relations and Paternity and Child Support branches of the family court. That report is based on years of surveying litigants, practitioners, and other jurisdictions’ best practices, as well as on fruitful conversations with the Superior Court. We are pleased that the court has been acting expeditiously to implement the task force’s recommendations.

There are no easy answers to closing our access to justice gap in the District, but we must constantly explore and develop new models. In this way we can safeguard our court’s worthy mission to be “open to all, trusted by all, and to provide justice to all.”

Reach Andrea Ferster at aferster@railstotrails.org.

[1] See “Justice for All?” available at http://bit.ly/KmnICH.
[2] See Rule 6.1 of the D.C. Rules of Professional Conduct.
[3] See “District of Columbia Courts State of the Judiciary 2010,” available at http://www.dccourts.gov/internet/documents/DCC2010AnnualReport-StateOfTheJudiciary.pdf.
[4] Tom Williamson, “Limited Scope Representation: Progress and Prudence,” Wash. Law. June 2013, at 6.
[5] Collaborative Project of Maryland, available at http://collaborativeprojectmd.org/.