Oklahoma Bar Journal
The Oklahoma County Courthouse Access Clinic
By Sara Murphy Bondurant
As the director of the Oklahoma County Courthouse Access Clinic, I routinely witness the desperation of people walking the halls seeking legal help. It is common for a pro se litigant to wander the courthouse hallways asking for help from anyone that “looks” like a lawyer. These brave souls go from clerks and bailiffs to the law library trying to solicit any legal advice while being turned away with only a packet of paperwork often with outdated instructions. If the litigant even makes it to the courtroom, more often than not they leave with no resolution to their matter.
After arguments and pleas of the litigants for the judge to alter the legal requirements of which they do not understand, judges often provide the time-honored request – “hire a lawyer.” Most often, as attorneys, we think this is the obvious answer – for the pro se to hire a lawyer. This assumption that a litigant refused or forgot to hire a lawyer and now can quickly remedy this error is an apparent oversight to the much larger problem they are facing.
The majority of these litigants either cannot afford an attorney or cannot wait months for a pro bono volunteer attorney. Their matters are urgent and life-altering. They are so desperate for help that they are willing to attempt navigation of a system designed for them to fail. Once they do fail, the message of inequality sent to these litigants makes them frustrated, angry and disillusioned with our legal system. The judicial system is full of barriers which disproportionately harm those without means. As a legal community, we have a responsibility to ensure access to the courts to litigants like these. We can and should do better.1
CHALLENGES WITH CIVIL ACCESS TO JUSTICE
In the United States
Before discussing the pro se clinic, some context is necessary. The United States has one of the highest numbers of lawyers per capita in the world, yet in 2019 it ranked 99 of 126 countries in the category of providing accessible and affordable civil access to the judicial system.2 In the measure of countries, the United States has fallen 30 spots since its 2015 ranking in this category.3 Not only is the court system designed to be inaccessible and unaffordable to the average low income individual, but a lack of education exists among the underserved populations which would create a remedy to the legal services gap.
A commonplace solution has been to provide limited legal assistance through not-for-profit programs such as Legal Aid.4 These programs have become the primary source of services to aid in the service gap to the poor. However, these pro bono clinics have barely scratched the surface in the unmet need for legal services among the poor. The gap is consistently growing, and clinics are unable to meet the needs of the poor. Legal Services Corporation published studies in 2005 and 2009 finding over 50 percent of individuals requesting legal aid services did not receive aid due to insufficient resources.5 In 2016, the number rose to 86 percent with 71 percent of low-income households experiencing at least one civil legal issue that year.6
Oklahoma has mostly the same challenges with civil access to justice as the other states across the nation. Yet, Oklahoma has been slow to tackle the issues due to lack of funding. The Oklahoma Supreme Court has taken a keen and timely interest in civil access to justice. In a 1990 landmark case for Oklahoma,7 the court indicated that the Oklahoma Constitution affords due process to indigent individuals in civil litigation matters.
Twenty-four years later in 2014, the Oklahoma Supreme Court established the Oklahoma Access to Justice Commission that was designed to develop and implement policies to expand civil legal services to low-income individuals. A commission website8 was developed which provides information on legal aid in Oklahoma. The mission of the commission is to study successful clinics across the country and implement effective programs in Oklahoma.9 Primarily, the commission is seeking programs that use inactive, retired or attorneys licensed in different states to serve as pro bono attorneys.10 The significant challenges for Oklahoma for access to justice are lack of resources and lack of qualified volunteers.
To combat these challenges and complexities of navigating the courthouse, attorneys in Oklahoma County created the Oklahoma County Courthouse Access Clinic (OCCAC)11 on Feb. 1, 2019. OCCAC is the first of its kind incubator project in the largest county in Oklahoma. The legal volunteers assist with minor guardianships, adult guardianships and probates.12
The distinction between other legal aid clinics and OCCAC is that OCCAC is permanently housed inside the courthouse where clients have daily, immediate access to attorneys and law student volunteers on a first-come, first-served basis. Attorney and law student volunteers have assembled to combat a growing gridlock occurring in the probate and guardianship docket. Due to complexities in the law such as the requirement for three separate background checks for adult members of a household for a minor guardianship proceeding13 or the Department of Human Services (DHS) referral of families to obtain a guardianship in order to divert children from DHS custody, pro se litigants are often confused and unprepared for their hearing dates. To complicate this situation further, with online and paralegal services, pro se litigants are given a false sense of the “user friendliness” of the legal system.
OCCAC’s purpose is to ensure civil access to Oklahoma County residents and those with current cases in the Oklahoma County District Court involving minor and adult guardianships and probates. Attorneys and law students who participate in the pro se clinic are given an instructional manual created by OCCAC. The manual includes detailed instructions concerning pro se filing requirements for adult guardianship, minor guardianship and probate matters.14
The clinic utilizes multiple resources including self-help services, pro bono programs and technical tools to assist individuals unrepresented by legal counsel. In its first three months of providing services, OCCAC volunteers assisted 114 families.15
Initially, the OCCAC clinic did not have rigid income qualification requirements for adult and minor guardianship clients.16 The board’s reason was that if the pro se litigant was already attempting to navigate the courthouse without representation, legal advice from a clinician would streamline the process and allow for less congestion in the courtroom. During the first months of the clinic, it became apparent while mostly utilized by client’s without means to retain an attorney, the occasional prospect attempted to circumvent the need to hire an attorney while having the means to do so. The OCCAC board determined that an income requirement was necessary for all aspects of the clinic in order to preserve the delicate balance between pro se assistance and the attorney franchise.
Court Advisor Program
If a client is unrepresented in an uncontested matter and in need of legal guidance in an adult guardianship, minor guardianship or probate matter in Oklahoma County, he or she may seek the assistance of a court advisor housed in the courthouse.17 Attorneys with experience in these areas are available during a three-hour shift. Most attorneys volunteer one or two shifts per month in order to limit volunteer fatigue rates. The attorney answers questions, assists with pleadings, provides legal advice, and may even appear pro bono on behalf of the individual. The attorney volunteer has complete discretion regarding courtroom appearance when the attorney deems the appearance appropriate. Each of the attorney volunteers is provided training with the possibility of MCLE credit.
Court Navigator Program
Under OCCAC supervising attorneys, the Court Navigator Program was created to support and assist unrepresented litigants. Specially trained and supervised nonlawyers called “court navigators” provide general information, written materials and one-on-one assistance. Also, court navigators provide moral support to litigants, help them access and complete forms, assist them with keeping paperwork in order, help them access interpreters and other services including explaining what to expect and the roles of each person in the courtroom. Court navigators are also permitted to accompany unrepresented litigants into the courtroom in Oklahoma County. While these court navigators cannot address the court on his or her own, they can respond to factual questions asked by the judge. Each court navigator is required to attend at least three separate shifts with a licensed lawyer before assisting clients alone. The OCU School of Law recently granted an externship opportunity for its law students to volunteer as court navigators at the clinic while gaining course credit at the law school.
Judge Pro Tem
Modeled after a successful program in California, the judge pro tem (judge for a day) aspect of the clinic allows attorneys to review filing requirements for certain matters and report to the judge whether the requirements have been met. Due to the voluminous cases requiring accountings in Oklahoma County, it is nearly impossible for each judge to track, review and respond to each party not meeting the accounting requirements required by statute in both adult and minor guardianship cases. Under this program, attorneys would be allowed access to courthouse cases biannually and provide notifications to the appropriate judge of those cases not meeting statutory requirements.
OCCAC Awareness Program
OCCAC volunteers provide education to attorneys, courthouse staff and the public about the clinic and its services. Courthouse staff training is essential so individuals may be identified and properly referred to the clinic. Community education is the means to empower litigants. The more education provided to community members the higher the demand will be for appropriate legal services.
Limited Service Agreements
Rule 33 of the Rules for the District Courts of Oklahoma authorizes limited scope services agreements. Limited scope agreements allow an attorney to provide piecemeal services in a legal matter rather than requiring a traditional, full-service representation agreement utilized by lawyers. Types of services could include legal advice, document preparation or single courtroom appearances. The client represents herself or himself in all other aspects but can receive legal representation on a limited basis.
The purpose behind these types of agreements is to lower attorney costs for the client while limiting malpractice exposure for the attorney. OCCAC clients are required to sign a limited scope services agreement before receiving clinic services. This agreement delineates what legal services are to be provided by the clinic and notes the clinic’s lack of responsibility for failures of the case outside of the clinic’s purview. When the clinician deems a matter too complex or contested, he or she will refer the client to a legal aid service that will be better able to meet his or her needs. Comment 7 to Oklahoma Rule of Professional Conduct 1.2 states the limited representation must be “reasonable under the circumstances.”18 The clinician has a time limitation goal of 20 minutes per client; therefore, complex and contested matters are not appropriate for the clinic at this time.19
Reports of the success of legal aid clinics should be viewed with a skeptic’s lens. Simply providing legal volunteers to answer questions and provide basic pleadings is based on a failed patchwork system.20 While legal aid clinics are intended to supplement the gap of inequality in the judicial system, these pro se clinics can also be viewed as imposing self-representation with minor legal assistance on poor people. In order to empower pro se litigants, we must not only provide services, but we must educate and nurture access to the courthouse. Furthermore, pro se clinics alone are not the appropriate response to the Sixth Amendment right to equal protection under the law. Greater emphasis must be placed on streamlining pleading processes, simplifying statutory requirements and eliminating vagaries in the judicial system.
Uniform and simple fill-in-the-blank forms must be created. Judges should be educated about the barriers caused by unnecessary continuances and appearances. They should also be free to provide instruction about resources available to pro se litigants and what information is necessary for the judge to make a decision. Attorneys should not be satisfied with limiting the discussion of access to pro se clinics. Instead, the legal community must commit to creating a holistic, user-friendly system that accommodates all levels of litigants.
ABOUT THE AUTHOR
Sara Murphy Bondurant is a senior attorney at Graft & Walraven PLLC in Oklahoma City and Clinton. Her practice focuses on estate planning, elder law, tax planning, probates and adult guardianships. Ms. Murphy Bondurant received her J.D. from the OU College of Law. She is a member of the OBA Access to Justice Section and Estate Planning, Probate and Trust Section. She has received the OBA Outstanding Pro Bono Service Award, Oklahoma Lawyers for Children Outstanding Attorney Volunteer, Journal Record 50 Most Influential Women in Oklahoma recognition and OCBA Leadership in the Law Award.
1. OCCAC would like to recognize and thank Judge Richard Kirby and Judge Allen Welch in their innovation and support for civil access to justice. Both judges recognize the barriers within their courtrooms and have taken a proactive approach in implementaing various programs designed to alleviate the legal services delivery gap.
2. “U.S. Rank On Access To Civil Justice In Rule Of Law Index Drops To 94th Out Of 113 Countries,” National Coalition for a Civil Right To Counsel (Oct. 27, 2016), //civilrighttocounsel.org/major_developments/217; See Agrast Et Al., “The World Justice Project,” Rule Of Law Index 175(2016).
4. By an act of Congress in 1974, Legal Services Corporation was created to provide a national program to provide legal services to the poor. See Pub. L. No. 93-355, 88 Stat. 378 (1974) (codified as amended at 42 U.S.C. §2996 (1994).
5. “Documenting the Justice Gap In America: The Current Unmet Civil Legal Needs of Low-Income Americans,” Legal Services Corporation, September 2005 (Updated June 2007 and September 2009), //www.lsc.gov/sites/default/files/LSC/images/justicegap.pdf and //www.lsc.gov/sites/default/files/LSC/pdfs/documenting_the_justice_gap_in_america_2009.pdf.
6. “The Justice Gap: Measuring the Unmet Civil Legal Needs of Low-income Americans,” Executive Summary, Legal Services Corporation, June 2017, //www.lsc.gov/sites/default/files/images/TheJusticeGap-ExecutiveSummary.pdf.
7. In re: D.D.F., 801 P.2d 703, 706 (Okla. 1990), the Oklahoma Supreme Court held that the rights at issue in a termination of parental rights case were fundamental to the family unit and protected by the due process clause of the Oklahoma Constitution, Art. 2, §7.
8. Oklahoma Access To Justice Commission sites.google.com/utulsa.edu/okaccesstojustice/home.
9. Kyle Schwab, “Oklahoma Access to Justice Commission looking at new ways to provide free legal help to the poor,” The Oklahoman, Jan. 29, 2018, //oklahoman.com/article/5581221/oklahoma-access-to-justice-commission-looking-at-new-ways-to-provide-free-legal-help-to-the-poor.
11. The OCCAC clinic can easily be replicated in other counties to assist with pro se litigants. To discuss starting a clinic in your county please contact the author.
12. Probate clients must receive a referral from an Oklahoma County probate judge to be eligible for OCCAC services. This referral system is designed to prevent nonincome eligible applicants from wrongfully utilizing OCCAC volunteer services.
13. 30 O.S. §2-101 (OSCN 2019).
14. The OCCAC instructors deliver the manual to all attorney and law student volunteers. Additionally, volunteers are asked to attend an orientation in which the manual is discussed. The manual has been approved by both judges assigned to the probate docket in Oklahoma County. The manual includes sample pleadings that are distributed by the Oklahoma County Court Clerk’s Office and the Oklahoma County Law Library.
15. Assistance includes in-office assistance and email assistance.
16. Due to the inherent nature of probates containing assets in which to retain an attorney, all probate clients have required a referral from one of the two Oklahoma County probate judges since the clinic’s inception.
17. This is true assuming the client meets strict income and asset requirements of the OCCAC.
18. 5 O.S. §1 Rule 1.2 – Scope of Representation and Allocation of Authority Between Client and Lawyer.
19. OCCAC has developed a referral source of pro bono and low bono attorneys willing to accept referrals from the clinic.
20. According to The Justice Index 2016, there are 6,953 civil legal aid lawyers in the nation out of 1.3 million lawyers. This translates to 0.64 civil legal aid attorneys for every 10,000 Americans living 200 percent below the federal poverty line. This is an unsustainable system. “Measuring Access to Justice (2016),” justiceindex.org.