By Daniel Morris
dmorris@centralmnlegal.org
Thinking about expanding your practice area or widening your client market? Know you can make a difference but need a venue to prove it? Volunteering as a pro bono attorney with greater Minnesota legal aid organizations can help you meet your professional and personal goals while providing necessary legal representation to Minnesotans in areas where attorneys are few in number. And innovations in communication technology and court rules have made it possible for lawyers anywhere in Minnesota to answer the call.
Legal aid offices across the state are stretched thin. The St. Cloud office of Central Minnesota Legal Services, for example, provides legal services to folks in 21 total counties spanning the state, from the Wisconsin border (Chisago County) to the South Dakota border (Big Stone, Lac qui Parle, and Yellow Medicine Counties). Even with limited staff, legal aid seeks to ensure that each of the counties in our service area feels like they have their own local office available to them, whether we have a physical presence there or not.
Legal Services Corporation (LSC), the federally created entity that oversees legal aid funding from the federal government, has invested resources in identifying and addressing service gaps. The latest Justice Gap Report,1 published in 2022 with surveys and interviews conducted throughout the pandemic year of 2021, noted that 77 percent of rural low-income households had experienced one or more civil legal problem in the past year. The study further noted that 92 percent of low-income Americans do not get any or enough legal help for their substantial civil legal problems—and that people living in rural areas are more likely than others to have low incomes and therefore less ability to hire private counsel.2 (The most reported types of legal problems included consumer issues, health care, housing, family and safety, and income maintenance.) Existing legal aid organizations, pro bono attorneys and leaders, administrators, and judges have worked on addressing many of these issues over recent years, but the need continues.
With pro bono help, Minnesota has the capacity to meet the legal needs across the state. Minnesota has one of the highest numbers of active and resident lawyers per capita in the nation. The 2022 ABA National Lawyer Population Survey reported that Minnesota has 26,065 active attorneys as of 2021, up about 9.6 percent over the preceding 10 years, for a per capita rate of 45.67 attorneys per 10,000 people.3 Minnesota has frequently ranked in the top 10 among states for highest number of attorneys per capita.4
Remote courts help rural clients
Besides the daunting ratio of legal needs to available attorneys, other complications in offering rural legal aid include conflicts of interest among a smaller and less diverse client pool, fewer support staff, and far-ranging travel needs.5 A bigger pool of pro bono attorneys would ease these limits. Adapting changes implemented by the judicial system in response to the covid–19 pandemic, such as expanding remote or zoom hearings, can help to address the gap in legal services in rural Minnesota.
The Minnesota Supreme Court, under Chief Justice Gildea’s supervision, has prioritized the legal needs of rural populations. And we now know that remote hearings are one of those changes that is here to stay under the Minnesota Supreme Court’s oneCourtMN Hearings Initiative Policy. The policy outlines hearing locations (remote versus in person) going forward in Minnesota, including the continuation of many civil, non-evidentiary hearings in a remote format.6 A lot of the work that comes up in pro bono matters, such as criminal expungement and housing expungement, requires one or two hearings that can now be held remotely. Nearly all the administrative appeals that civil legal service providers address, such as unemployment benefits and public benefits appeals, have been remote or by phone and will continue to be in the future.
This pivot to technology has increased capacity for legal aid and expanded the way pro bono work can be done. In years past, it was not unusual for a legal aid attorney in our office to spend two hours in a vehicle to appear for a short ICMC or pretrial hearing, and two hours in return. With remote hearings, legal aid is able to increase legal capacity by turning those four hours in the car into time spent advising clients, drafting motions, or performing legal research. There is also hope that remote hearings make it possible for private attorneys and law offices to be much more efficient, potentially freeing up more time for pro bono activities.
“There is room now for pro bono work in different counties because of remote hearings,” says Alexander Gutnik, an associate attorney at the Heller & Thyen, P.A. law firm who practices in the areas of family law and criminal defense. Having been a former legal aid attorney and current volunteer attorney through the Volunteer Attorney Program, Mr. Gutnik has expanded his caseload to matters venued all over the state—from Beltrami to Olmsted counties, and Chisago to McLeod. “I’ve had four hearings in different counties all in one day, and there would be no way to do that if I had to drive to each hearing,” he notes.
More ways to help low-income clients
The recent update to the Rules of Professional Conduct providing for mandatory reporting of pro bono time and financial support of pro bono and legal aid services has dual goals.7 The first is to use the reporting data to craft targeted programs to devote more resources to underserved communities, typically in rural Minnesota. The second is to raise awareness among licensed attorneys about how close to the aspirational goal the profession is coming. When attorneys see that a few more hours of volunteerism can mean reaching that goal, the hope is that they take on that challenge.
The Legal Paraprofessional Pilot Project was created in part by the increased need for legal assistance. The pilot allows a legal paraprofessional to provide limited legal advice, and in some cases represent a client in court, under the supervision of a licensed Minnesota attorney. The project aims to focus on those proceedings in which one party typically appears in court without representation.8 The pilot project thus far has focused on housing and family law cases.9
Judge Korey Wahwassuck,10 a district court judge in the Ninth Judicial District (Itasca County), sees the opportunity for the Legal Paraprofessional Pilot Project to increase pro bono access for low-income Minnesotans in rural areas through the use of advice and brief services. “Brief services” can include help with filling out court forms for family law and/or child support cases and explaining the court process to pro se litigants—even if the legal paraprofessional does not ultimately represent the client in court.
With her experience on the bench, Judge Wahwassuck says she sees the greatest need for pro bono representation in court in family law, specifically with the initiation and process of the case. Judge Wahwassuck noted that many low-income people face significant barriers in accessing the courts and understanding the legal process. “We see a lot of people trying to represent themselves [by using] the Self-Help Centers,” she observes. Judge Wahwassuck notes that if attorneys are hesitant to jump into full representation cases pro bono, there are many other useful services they might offer—such as advice and brief services, completing forms, and outlining the rules for evidence admission at contested hearings.
Legal advice clinics, which are held in several different counties throughout the state, are another way to provide service to low-income clients without seeing cases through from start to finish. Many of the legal advice clinics have options for remote or telephone consultations, thereby allowing volunteers to help remotely in areas where the need is greatest. (And any documents discussed in these remote consultations can easily be forwarded to the attorney electronically.)
Mediations are another opportunity for a pro bono attorney to get involved in a case. Mediation is both high-impact and limited in scope and time. Pro bono attorneys can choose to volunteer a half day or full day of their time to provide free mediations to those who qualify. Mediation resolves cases efficiently, saves limited court resources, and reduces the need for pro bono attorneys to handle contested matters later. Volunteer mediations are often held remotely by Zoom, and using the breakout room feature provides confidentiality between attorney and client even when there are miles between the two.
Pro bono attorneys can also co-counsel a matter with a legal aid office. This type of service includes handling remote hearings, discovery, and litigation work while a local legal aid office attorney provides support and handles any necessary in-person hearings or meetings with the client. Legal aid provides training, counseling, and ongoing resources to pro bono attorneys regarding poverty law issues that a pro bono attorney practicing in a new area of law may not be familiar with.
The introduction of Legal Aid Kiosks (www.legalkiosk.org) at the beginning of the pandemic has also facilitated remote connections between low-income clients, their attorneys, and courts. Over 250 legal kiosks have been installed around the state. The kiosks give low-income clients the technology needed to remotely connect with a pro bono attorney, most often by Zoom. The kiosks also feature a screen-share capability that allows client and attorneys to review documents, complete forms, and access online resources. Clients can also print the legal documents they create at the kiosk. With this technology, a client in Hackensack, a northern Minnesota town with a population of 294, could drive 15 minutes to the nearest kiosk location and have a sit-down, face-to-face virtual consultation with an attorney who is sitting at their own desk 180 miles away in Bloomington.
Appearing in unfamiliar courts
Judge Wahwassuck readily acknowledges that it can be daunting for attorneys to appear in courts outside of their usual practice area; local courts in smaller jurisdictions sometimes project a level of familiarity between attorneys and the court that appears unfavorable to parties appearing for the first time. “As a judge, it’s important to greet everyone equally and be aware of those perceptions,” says Judge Wahwassuck. “If you go to a dance and don’t know anyone, you are less likely to get on the dance floor.”
Judges have some responsibility in addressing this issue, she says. She advises attorneys preparing for an appearance in an unfamiliar court to contact the law clerk or court administration and ask about a judge’s preferences—and to consult any local practice manuals that may exist. Preparing your client properly for a Zoom hearing is also important. Prior to the hearing, test out a client’s technology and make sure it works. Review the proper demeanor for court hearings with your client. “It is still court,” says Judge Wahwassuck, “so the Zoom hearing should be respected as much.” Mr. Gutnik says he often logs in to his Zoom hearings early to observe the court and become familiar with the judge’s style and the pace of the hearing happening before his hearing is scheduled. “I’ll also look at a judicial profile, talk to opposing attorneys, and look up recent district court opinions authored by the judge on Westlaw,” he adds.
The demand for pro bono legal services statewide, and especially in greater Minnesota, has never been higher, and we all owe a duty to ensure that all Minnesotans have access to justice regardless of where they live. Judge Wahwassuck recognizes that many attorneys are already stretched thin, so any pro bono work they do is very appreciated by the bench. “A lot of personal satisfaction can be derived from pro bono work,” she says. “You are serving people that don’t have any other options and it makes a huge difference in people’s lives.” As a pro bono attorney, she stresses, “Your work has a [broad] impact…. It impacts the whole judicial system.”
DANIEL MORRIS, a 2010 graduate of the University of St. Thomas School of Law, is the managing attorney at Central Minnesota Legal Services in St. Cloud.
Notes
1 https://justicegap.lsc.gov/resource/executive-summary/
2 https://justicegap.lsc.gov/resource/section-2-todays-low-income-america/
3 https://www.americanbar.org/content/dam/aba/administrative/market_research/2022-national-lawyer-population-survey.pdf
4 In 2018, to take a recent survey year, Minnesota ranked eighth in the nation in lawyers per capita. https://lawschooltuitionbubble.wordpress.com/original-research-updated/lawyers-per-capita-by-state/; https://www.lawyersofdistinction.com/lawyers-by-capita-per-state/
5 Introduction to Rural Pro Bono Project ABA https://www.americanbar.org/groups/probono_public_service/projects_awards/rural_pro_bono_project/)
6 See Order Governing the Continuing Operations of the Minnesota Judicial Branch, ADM20-8001, Minn. Sup. Ct., 4/19/2022.
7 Minn. Rul. Pro. Conduct, Rule 6.1.
8 In RE Implementation Committee for Proposed Legal Paraprofessional Pilot Project, ADM19-8002, 3/8/2019.
9 Order Implementing Legal Paraprofessional Pilot Project, ADM19-8002, September 29, 2020.
10 Judge Wahwassuck was appointed to the district court bench in 2013, having previously served as an associate judge for the Leech Lake Band of Ojibwe Tribal Court, where she helped to initiate and presided over the first joint tribal-state wellness court in the nation.