Have your clients had their legal checkup?

by Hinshaw & Culbertson LLP

In August 2014, the ABA's Commission on the Future of Legal Services set out to improve the delivery of, and access to, legal services in the United States. (Report on the Future of Legal Service in the United States, p.4)   

Now, after two years of extensive outreach, research and study, the Commission released its Report on the Future of Legal Services in the United States containing its findings and recommendations for improving how legal services are delivered and accessed in the United States.  Id.

Not surprisingly, the Commission found that "despite sustained efforts to expand the public's access to legal services, significant unmet needs persist." Id. at 11.  However, contrary to what might be expected, the lack of basic civil legal assistance is not limited to the poor.  According to the Report, "numerous studies show that the majority of moderate-income individuals do not receive the legal help they need." Id. at 12.  In fact, "moderate-income individuals often have even fewer options than the poor because they do not meet the qualifications to receive legal aid." Id.

One of the Commission's recommendations set forth to address this need was that "individuals should have regular legal checkups."  Id. at 43.  The Commission also recommended that "the ABA should create guidelines for lawyers, bar associations, and others who develop and administer such checkups" to help inform people of their legal needs and to identify legal assistance that might be available. Id. at 43-44.      

The Report equates legal checkups to medical checkups, wherein "sometimes a person is aware of a problem, for instance, receipt of a summons or complaint," while other times legal issues are only discovered after a discussion with a professional who can help identify legal needs that would be best solved with legal assistance. Id.

The Commission suggests that all individuals should have legal checkups "on a periodic basis, especially when major life events occur" such as a marriage, divorce, the birth of a child or those individuals who may be in a situation which may require a medical health directive or a will. Id.

To protect the public and increase access to legal services, the Commission suggests that "legal checkups should meet certain basic standards and recommends the ABA adopt guidelines that are consistent with the following:

Proposed ABA Guidelines for Legal Checkups

Preamble: The purpose of legal checkups is to empower people by helping them identify their unmet legal needs and make informed decisions about how best to address them. Legal checkups should be easy for individuals to use, and the results should be easy to understand.

1.    Ease of Understanding: Legal checkups should be designed using plain language so that people who do not have legal training can easily understand the language used. Any words that are not easily understand- able by someone without legal training should be defined and explained using plain language.

2.    Candor and Transparency: The promotion, distribution, and content of legal checkups must not be false, misleading, or deceptive.

3.    Substantive Quality: Legal checkups should be created by or in consultation with individuals who are competent in the applicable law that the checkup addresses.

4.    Communication: Legal checkup providers should clearly communicate to users that the quality and effectiveness of the check- up depends on the users providing full and accurate information.

5.    Limits of the Checkup: Legal checkup providers should give users conspicuous notice that a legal checkup is primarily designed to identify legal issues, not to solve them, and is not a substitute for legal advice.

6.    Resources: If a legal checkup identifies legal needs, it should direct the user to appropriate resources, such as lawyer referral services, legal self-help services, social services, government entities, or practitioners. Users should be informed that they are not obligated to use the services of any particular resource or service provider.

7.    Affordability: Legal checkups should be available free of charge or at low cost to people of limited or modest means. If providers charge for legal checkups, the price should be commensurate with the user’s ability to pay and clearly disclosed in advance.

8.    Accessibility:

a. To the extent feasible, legal checkups should be accessible to all users, including people who do not speak English and people with disabilities.

b. Legal checkups should be available to the public in a wide variety of venues (for example, public libraries, domestic violence shelters, social services offices, membership organizations, etc.).

c. Web-based legal checkups should be available on a wide variety of electronic platforms, including mobile platforms.

d. The content of legal checkups, and their terms of use and privacy policies, should be accessible, written in plain language, and easy to navigate.

9.    Jurisdiction: Where legal checkups are state-specific, the provider should identify the relevant state law. Where legal check- ups are not state-specific, but implicate state law, the provider should indicate that not all content may apply in the user’s state.

10.  Compliance with Law: The development and administration of legal checkups must comply with all applicable law including laws and rules regarding the unauthorized practice of law.

11.  Privacy and Security of Personal Information: Providers of legal checkups—whether web- or paper-based—should take ap- propriate steps to protect users’ personal information from unauthorized access, use, and disclosure. Providers should not disclose such information, or use it for any purpose, apart from the purpose of providing  the legal checkup, without the user’s express authorization, except as required by law or court order.

12.  Provider Information: Legal checkups should include the provider’s contact in- formation (e.g., name, address, and email address) and all relevant information about the provider’s identity, including legal name.

13.  Dating of Material: The legal checkup should include a prominent notice of the date on which the legal checkup was last updated.

A copy of the report can be found here.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Hinshaw & Culbertson LLP | Attorney Advertising

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