MARQUETTE VOLUNTEER LEGAL CLINICS

Volunteer Attorney Training Professional Responsibilities of Limited Scope Representation SCOPE OF TRAINING

• Provide overview of MVLC model including limits of services, policies, and procedures.

• Provide information about the professional responsibilities of limited scope representation in the context of a brief clinic.

• In person training qualifies as 1 Ethics CLE credit. Online training does not.

• www.marquettelegalclinic.org MVLC MISSION

To serve the Milwaukee community in Marquette’s Jesuit tradition of service by increasing access to while providing learning and mentoring opportunities for students. MVLC QUICK FACTS

 Over 30,000 clients served since we began in 2002. Now serving ~4,300 annually.  ~ 300 volunteer attorneys involved each year.  ~ 250 law student volunteers involved each year.  77% of our clients live at or below 115% of the federal poverty level ($18,320 annual gross income for a household of two—the average size of household we see)  Common Legal Issues: , housing, debtor, small claims, employment, wills, , . VOLUNTEER SUPPORT

 Marquette University provides professional liability insurance for trained clinic attorneys.  Free monthly CLE presentations cover areas most frequently seen at the clinic. You may attend in- person at the or view live online. (1 credit)  Archived presentations also available online.  Visit our website: www.marquettelegalclinic.org SCR 20:6.1 Voluntary service

Every has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least 50 hours of pro bono legal services per year. New Rules: SCR 31.05(7)

Petition 15-05 approved by the in April 2016:  Attorneys will be able to get up to six CLE credits per reporting period for doing “qualified pro bono work” which includes work sponsored by a law school.

Took effect January 1, 2017. WISCONSIN PRO BONO SOCIETY FOR

 An honorary society for Wisconsin Lawyers who provide 50+ pro bono hours each year.  Self-report your eligibility on the Wisconsin Access to Justice Commission website: http://wisatj.org/projects/probonosociety  The MVLC keeps record of your pro bono hours with us. “The opposite of poverty is not wealth. The opposite of poverty is justice.”

- Bryan Stevenson, Founder & Director, Equal Justice Initiative DO YOU NEED MONEY TO ACCESS JUSTICE?

 Filing Fees Filing and service fees may be  $198 for divorcewaived with children with a “Petition for Waiver of  $188 for divorce withoutFees” and children proof of Food Share or poverty at or below 100% FPL.  $98 for small claims  Service Fees  $60 for three service attempts by Milwaukee Co. Sheriff’s Office No attorneys fees for  Attorneys Fees representation from Legal Action of Wisconsin or the  Often hourly. Sometimes with a retainer. Society of Milwaukee. Proof of poverty at or below 125% FPL. LOCAL POVERTY

• Milwaukee ranked the seventh most economically distressed city in America with nearly 30% of residents living at or below federal poverty level. • Wisconsin poverty on the rise. 46th most dramatic increase among all 50 states between 2009-2014. • Nearly 20% of WI children living in poverty • Racial disparities in poverty bigger here than nationally. 39% poverty among black people, 28% among Latinos, 11% among white people. What is the “federal poverty rate” and how is it determined?

2016 Federal Poverty Guidelines (FPG)

Household Size 100% 125% 150% 200%

1 $11,880 $14,850 $17,820 $23,760

2 16,020 20,025 24,030 32,040

3 20,160 25,200 30,240 40,320

4 24,300 30,375 36,450 48,600

5 28,440 35,500 42,660 56,880

6 32,580 40,725 48,870 65,160

7 36,730 45,913 55,095 73,460

8 40,890 51,113 61,335 81,780

33% of Milwaukee Free Legal Food Share Residents living at or Services ceiling below 100% qualifier Wisconsin’s State Funding

From 2012 to July 2015, Wisconsin was one of only three states that did not provide funding for civil legal services for low-income individuals.

$500,000 each year for abuse victims. WISCONSIN’S LEGAL SERVICES LANDSCAPE

 Other Midwestern states budget an average of $7.6 million per budget cycle for civil legal services to the indigent.  How are Wisconsin’s Legal Services programs funded?  Federal dollars via the Legal Services Corporation  Attorney trust account interest income (IOLTA)  Part of dues (PILSF)  Pro hac vice admission fees  Coming soon: unclaimed class action awards  How can we work toward creative solutions?  Develop a continuum of services. MILWAUKEE’S LEGAL SERVICES CONTINUUM

Full, Ongoing Representation

Brief Representation

Brief Legal Advice Clinics

Pro Se Help Desks

Websites Designed for Pro Se Litigants MVLC LOCATIONS & HOURS

House of Peace 1702 W. Walnut St. Tuesdays, 3-7

Milwaukee Justice Center 901 N. 9th St. Room G9 Thursdays & Fridays 2-4pm Family Law Advice: Mon., Tues., Wed. 1:30-3:30 United Community Center Veterans’ Service Office 730 W. Washington St. 6419 W. Greenfield Ave Wednesdays, 5–7 1st & 3rd Mondays, 4-6 MOBILE LEGAL CLINIC

Operating various Tuesdays, Thursdays, and Saturdays at isolated urban areas in Milwaukee. www.marquettelegalclinic.org CLINIC FOR NONPROFITS

– Marquette Legal Initiative for Nonprofit Corporations (M-LINC) www.m-linc.org – Mission – To help provide Wisconsin 501(c)(3) nonprofit organizations with access to free legal advice, while providing learning and mentoring opportunities for law students. – Model – Clinics at Marquette Law School in the Eisenberg Suite – Overseen by Assistant Director Katie Mertz – Generally transactional legal issues – Corporate, tax, employment, , real , and employment law questions Project Homeless Connect

One-day, one-stop annual event where homeless people in Milwaukee can come to access the multiple services and resources they need, all under one roof.

Event takes places every year on a Thursday in October at Marquette’s Alumni Memorial Union. You will be invited to participate by email.

Common legal issues: municipal tickets, child support, expungement, driver’s license recovery. Estate Planning Clinic

Offers basic estate planning services to low income individuals and veterans and their spouses/partners. Documents created: will, living will, power of attorney for finance/property, power of attorney for healthcare. By Appointment: Mon., 4-6PM and Tues., 5-7PM. Law students call clients to gather information prior to the appointment to confirm eligibility and what type of documents will be prepared. Law students and attorneys use software program to develop documents and client leaves with executed and notarized documents. Software and basic estate planning training provided. CLINIC MODEL

 Law students are paired with volunteer attorneys  Law students greet clients, escort them to conference room, and introduce you to the client (first names only)  Law student explains the parameters of the service  Law students and volunteer attorneys conduct a client interview together  Volunteer attorneys provide brief legal advice

 Civil legal issues only  Client meetings typically last 30-45 minutes ROLE OF LAW STUDENTS

 The student volunteers participate in the conversation with the client by taking notes both internally for our records of the issue as well as for clients to take with them regarding the advice the attorney offers.  The student volunteers help with research. Their research levels vary as we have students volunteering at various points within their law school careers.  The student volunteers are familiar with our clinic resource pages.  The student volunteers explain the clinic services at the beginning of the meeting. LAW STUDENT ADVISORY BOARD ROLE

 The Student Advisory Board members (SAB members) staff almost every clinic.  The SAB members provide assistance to both the student and attorney volunteers, mainly by assisting in additional research or providing knowledge of other resources and sources of referral.  The SAB members are a useful tool to help both student volunteers and attorney volunteers. ROLE OF THE ATTORNEY

 You have full discretion to guide the interview as you see fit.  Attorneys usually listen, ask questions to develop a complete understanding of the legal issues, and do their best to provide the client with the basic steps needed to begin to address the problem.  Students are encouraged to participate by asking questions of their own to help develop the facts.  Invite the student to ask questions of you during (and after) the interview.  Network with the law student about your practice, working as an attorney in Milwaukee, etc. ROLE OF THE ATTORNEY, Cont’d.

 Some clients will not have a legal problem, but might need help reading a letter, completing a form, or finding a resource. Be prepare to pitch in on these kinds of issues.  Consult with clinic supervisor and other attorneys at the clinic when you encounter an issue about which you are unfamiliar.  Our goal is to provide someone with as much as we can in just one visit. When time permits, we strive to help someone complete a court form rather than refer them to another location for assistance with the form. But on occasion, a client will be better served at one MVLC location over another.  Take care when providing a referral! We want to avoid giving clients the run-around. ROLE OF THE ATTORNEY, Cont’d.

 Sometimes the best advice we give is telling someone they do not have a legal claim, are very unlikely to prevail, and should consider moving on in their life.  Often the client just wants to be heard and have their feelings validated (“That sounds like it was really tough.” “I can understand why you are frustrated.” “You have described some really difficult circumstances.”)  Validate first, then deliver the legal advice. EXPECTATIONS

 There is never any requirement or guarantee that we will be able to solve a client’s problem.  There is no expectation that you take a case for representation – though you are welcome to do so.  Some legal matters are beyond the scope of our services.  These include commercial real estate transactions, complex litigation, school law, , and employment discrimination.  Criminal does not include municipal cases (which encompass noncriminal traffic and ordinance violations).  Commercial real estate transactions relate to the complex (not brief!) procedures of financing, drafting, and negotiating a real estate transfer.  Do your best to refer a client to another resource, including the MBA and WisBar LRIS.  Please consult with a clinic supervisor to find other appropriate referrals and resources.  Bring your notary stamp! WORKING WITH AN INTERPRETER

 Look at the client, not the interpreter while speaking. Body language should be directed towards the client as well.  Talk slower, not louder. Take breaks as necessary.  Allow extra time for the client to listen to the interpreter and read materials since both cannot be done at the same time.  Do not ask the interpreter for his/her opinion or to perform any tasks other than interpreting.  Communications between the interpreter and client are privileged if the interpreter is acting as an agent of the attorney.  While using a family member as an interpreter may seem easiest initially, be mindful of potential conflicts of interest, such as in estate planning, or in a potential elder abuse situation. MVLC ETHICAL CONSIDERATIONS

Special Rules for Limited Scope  Limited Scope Representation SCR 20:1.2(c)  Informed Consent 20:1.0(f)  Competency considerations: Comment 7 SCR 20:1.2  Conflict Free Representation SCR 20:6.5  Ghostwriting considerations SCR 20:1.2 (cm) General ethics rules apply - Competence SCR 1.1 - Confidentiality SCR 1.6 - Communication with person represented by SCR 4.2 LIMITED SCOPE REPRESENTATION SCR 20:1.2 (C)

 A lawyer may limit the scope of the representation if the limitation is: Reasonable under the circumstances and The client gives informed consent. “REASONABLE UNDER THE CIRCUMSTANCES”

What is “reasonable under the circumstances?”  If competency is compromised by limiting the representation, it is ill-suited for brief advice.  Comment 7 to SCR 20:1.2  Although an agreement for limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.  See Competence Rule 1.1 “REASONABLE UNDER THE CIRCUMSTANCES”

University’s liability insurance provider does not cover certain areas of law that include, but are not limited to,  commercial real estate transactions  complex litigation  school law  employment discrimination.

Use your discretion at the clinics to determine whether the answer to a legal question goes beyond “brief legal advice.” LIMITED SCOPE REPRESENTATION SCR 20:1.2 (C)

 A lawyer may limit the scope of the representation if the limitation is: Reasonable under the circumstances and The client gives informed consent. CLIENT MUST GIVE “INFORMED CONSENT” TO LSR, Cont’d.

SCR 20:1.0(f) defines informed consent with three essential elements, all of which are included in our Explanation of Clinic Services, provided to every client at the outset of services.

1. Explanation of facts and circumstances “Our purpose is to provide you with basic legal advice and appropriate referrals if needed. The clinic cannot accept your case or represent you in any legal action.” CLIENT MUST GIVE “INFORMED CONSENT” TO LSR, Cont’d.

 SCR 20:1.0(f) defines informed consent with three essential elements, all of which are included in our Explanation of Clinic Services. 1. Explanation of facts and circumstances 2. Explanation of the material advantages and disadvantages of a proposed course of conduct “It is usually a good idea to have an attorney represent you, and it may be difficult to proceed without one. We will provide as much assistance as we can today, but you may be more successful if you have an attorney.” CLIENT MUST GIVE “INFORMED CONSENT” TO LSR, Cont’d.

 SCR 20:1.0(f) defines informed consent with three essential elements, all of which are included in our Explanation of Clinic Services. 1. Explanation of facts and circumstances 2. Explanation of the materials advantages and disadvantages of a proposed course of conduct 3. An explanation of available options and alternatives “If we are aware of any reasonable available alternatives to our service, we will refer you to them. We recommend that you contact any legal resources to which we refer you.” CLIENT MUST GIVE “INFORMED CONSENT” TO LSR

Informed consent need not be given in writing if the representation is provided by a lawyer … participating in a program sponsored by … an accredited law school, or a court and lawyer’s representation consists solely of providing information and advice or the preparation of court-approved legal forms. SCR 20:1.2(c)(1)

No written consent required for clinics such as MVLC, but our practice is to obtain written consent through signature on client intake form (a responsibility of the law student). CONFLICT FREE REPRESENTATION

Special rule for lawyers who want to participate in advice- only legal clinics with protection from unintentional conflicts of interest.  SCR 20:6.5. Nonprofit and court-annexed limited legal services program.  (a) A lawyer who, under the auspices of a program sponsored by … an accredited law school … provides short-term limited legal services to a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter: (1) is subject to Rules 1.7 (conflict with current clients) and 1.9(a) (duties to former clients) only if the lawyer knows that the representation of the client involves a conflict of interest; and (2) is subject to Rule 1.10 (imputed disqualifications) only if the lawyer knows that another lawyer associated with the lawyer in a law firm is disqualified by Rule 1.7 or 1.9(a) with respect to the matter. (b) Except as provided in paragraph (a) (2), Rule 1.10 is inapplicable to a representation governed by this Rule. CONFLICT FREE REPRESENTATION, Cont’d.

 Bottom Line:  KNOWN conflicts pertaining to the attorney, the attorney’s firm, or the law student, would preclude that individual from providing advice to the client.  In this occurs, advise the clinic supervisor and another attorney and/or student will be assigned to the client.  Do not inform the client why you are withdrawing. GHOSTWRITING 20:1.2 (cm)

Ghostwriting is the practice of a lawyer drafting pleadings, briefs, or other documents to be filed with the court by a pro se litigant without disclosing who drafted the document.  SCR 20:1.2 (cm)  A lawyer may prepare pleadings, briefs, and other documents to be filed with the court so long as such filings clearly indicate thereon that “This document was prepared with the assistance of a lawyer.” A lawyer shall advise the client to whom the lawyer provides assistance in preparing pleadings, briefs, or other documents for filing with the court that the pleading, brief, or other documents must contain a statement that it was prepared with the assistance of a lawyer. GHOSTWRITING, Cont’d.

 If you draft a document for a client at the MVLC, you will find a stamp on your work station containing the words “This document was prepared with the assistance of a lawyer.”  Please use the stamp when appropriate.  You may also type the phrase directly into the document prepared.  Disclosure is not required on court forms which have been drafted by the Wisconsin system. General Ethics Rules Apply

 Competence SCR 20:1.1  Confidentiality SCR 20: 1.6  Communication with Person Represented by Counsel SCR 20: 4.2 Competence SCR 20:1.1

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Rule comments include: A newly admitted lawyer can be as competent as a practitioner with long experience. Some important legal skills, such as the analysis of , the evaluation of and legal drafting, are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. Confidentiality SCR 20:1.6

A lawyer shall not reveal information relating to the representation of a client unless: - The client gives informed consent - The disclosure is impliedly authorized to carry out the representation (“Am I disclosing this to advance the client’s stated objective?”) - A court order requires the disclosure

Whether information is contained in the public record does not matter. Communications with Person Represented by Counsel SCR 20:4.2

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. Rule comments include: Nor does this Rule preclude communication with a represented person who is seeking advice from a lawyer who is not otherwise representing a client in the matter. Example #1

 Client and three others rented a storage locker. Client’s guns, medical records, and other items were stored there. One of the other renters threw away some of client’s belongings and took the guns and other items.  Client presents forms already completed.

1) Review client’s forms. Re-do them if necessary. 2) Rely on student to find small claims forms and procedures. Assess whether a fee waiver is needed. Example #2

 Client hopes to have criminal record expunged. CCAP shows a felony weapons possession. Client says the charge was not a felony.

1) Send student to get an Expungement Guide or look for our electronic version. 2) Talk through eligibility as laid out in the . 3) Deliver the bad news and talk about practical approaches to fixing the potential CCAP error. Example #3

 Client had a bill sent to collections. He believes he paid it in full. He is receiving regular calls from the collections agency.

1) What records does the client have of payment? 2) Draft a letter (use legalese!) to help the client advocate for himself. You can use our clinic stamp: “This document was prepared with the assistance of an attorney.” Example #4

 Client wants to draft a will. He has a house with no mortgage and a car. He wants to leave everything to his daughter. 1) Basic wills are available in our clinic resources. If you are comfortable drafting a will with the client, do it. 2) A house may be transferred at death through beneficiary designation. The form is available in our resources. 3) Unsure? Practical advice / State Law Library and State Bar resources/ Call a colleague Example #5

 Client got a bad haircut 2+ years ago. Tried to have it fixed by the same stylist. Stylist used a product that made her skin itch. Her hair had not grown back since. Concerned a chemical inhibiting growth was used on her hair. Hairdresser is the salon owner.

1) Treat client with respect. Listen with empathy. Validate frustrations. 2) Provide legal analysis to support your conclusion that there is not a . Making Civil Legal Referrals

 Legal Action of Wisconsin  Very specific Milwaukee office intake procedures  Legal Aid Society of Milwaukee  Very specific intake procedures  Centro Legal  Sliding fee scale  Other sliding fee scale providers  LRIS of the MBA and State Bar  Referring to a colleague Questions? Comments?

Angela Schultz, [email protected] Assistant Dean for Public Service

Katie Mertz, [email protected] Assistant Director of Public Service

Mary Ferwerda, [email protected] Executive Director of the Milwaukee Justice Center

Kyla Motz, [email protected] Legal Director of the Milwaukee Justice Center