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June 12, 2006

On April 6, 2006, the Task Force on Pro Se and Indigent Litigants submitted its report to the Ohio Supreme Court. The report runs 45 pages (128 including the appendix, which contains the results of a survey on pro bono work, and an Iowa court manual on how to handle pro se litigants). It contains no fewer than 52 recommendations, and can be found here.

If its recommendations were adopted, they would have a profound effect on the practice of law in Ohio.

They would substantially increase the power of the Ohio State Public Defenders Commission: it would have the authority to establish standards for appointed counsel, including "performance-based" standards, it would have the power to set minimum funding levels, and eventually it would take over the management of all appeals of indigent defendants. The Task Force also recommends that the rules of discovery in criminal cases be substantially liberalized.

The provisions regarding pro bono work essentially track the recent recommendation of the OSBA that each lawyer provide 50 hours of free legal service annually, or alternatively contribute $500 to "agencies providing legal services to the poor." (This setup is vaguely reminiscent of the "bounty system" available in the North during the Civil War, when those who were drafted could avoid service by paying $300 to someone to serve in their stead.) The Task Force assures us that neither the 50 hours nor the $500 is mandatory. It does part ways with the OSBA in requiring that the hours or contributions at least be reported; the OSBA does have a provision for reporting it as part of the biennial registration for attorneys, but does not make reporting mandatory.

The third part of the report deals with recommendations for making things easier for pro se litigants. Actually, many of the recommendations would make things easier for attorneys, too: the Task Force suggests that the Supreme Court develop standardized forms for many areas of practice, such as divorce and probate, and that such forms be available through a central web site, and be capable of being filled out on-line and printed.

This dovetails with the next recommendation of the Task Force: that attorneys be allowed to provide "limited" services to pro se litigants. As it stands now, representation is an all-or-nothing game: an attorney who, for example, simply prepares a divorce complaint and gives it to a client to file and pursue on her own risks certain consequences, not the least of which is getting to be on a first-name basis with his malpractice carrier. The Task Force recommends numerous modifications to the Disciplinary Rules to allow a lawyer to limit his representation to the preparation of certain documents, or even appearance at certain hearings, with the ability to terminate the representation once those have been accomplished.

The last area concerns funding for indigent services, and the Task Force calls not only for additional sources of funding, but for higher general funding by the state as well. The Task Force notes that, on previous occasions, when some alternative source of funding was developed - added courts costs, for example - the legislature simply reduced the general funds available by the amount that the new procedure was anticipated to produce. The Task Force calls for a halt in that practice, and also proposes numerous new funding mechanisms, most of which can be distilled to a simple warning not to get traffic tickets. Or parking tickets, for that matter; the Task Force recommends added charges there as well.

All this is not to suggest that attorneys start searching the web for downloadable forms or revising their calendars to accommodate pro bono work. Few of the Task Force's recommendations contain more than a smidgen of detail, as is pretty much acknowledged by their last recommendation: that the Supreme Court select a committee to draft and implement the recommendations. The Task Force itself mentions that a number of its recommendations were made by a similar group headed by former Supreme Court Justice Craig Wright back in 1992, to no apparent avail. While the Task Force makes several good recommendations and a number of others which merit discussion, those of a more cynical bent might conclude that the Commission's major accomplishment will be to give added strength to the old observation that a committee is an alleyway down which ideas are lured to be strangled.


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