(Don’t) Fill in the Blank Programs Can Help Utahns Access Legal Services

By Peri Kinder

Utah Business, March 6, 2014

Chances are, if you have an intense pain in your side, you don’t research “appendectomy” online and perform your own surgery with a paring knife on the kitchen table. But many Utah residents do the legal equivalent of operating on themselves when they try to handle their own court cases or create legal documents from online sources.

While the consequences of performing your own surgery are much more calamitous than filling out your own legal documents, the mistakes caused by do-it-yourself legal representation can have long-lasting and devastating results.

James D. Gilson is the litigation chair at Callister, Nebeker & McCullough and is president elect of the Utah State Bar. He has practiced law for 25 years and has witnessed many people try the DIY legal program, with distressing outcomes. He often wonders why individuals believe they can figure out the legal system without professional help.

“It’s probably the perception that they can’t afford to hire an attorney,” Gilson says. “We’re trying to get the word out as a Bar that hiring a real-life Utah lawyer is something people ought to do—that they have value and they should consult with a real lawyer before turning to the internet.”

Gilson has seen too many people who have been scammed or have botched their own representation by not contacting an attorney. And while the cost can be intimidating, he believes the self-help clients will cause escalating trouble for themselves, until they finally realize they need to hire professional help.

“People go to a licensed, trained doctor when they have a health issue. But if you have a significant legal issue like a divorce or a business contract dispute, or you’re facing a criminal charge, by the same logic, one should seek advice from a trained professional.”

And people who represent themselves often get taken advantage of, or end up settling for much less than they were entitled to. “The other side has an attorney representing them, and if you don’t, you’re going against a trained lawyer, and the odds are stacked against you,” says Gilson.

The Utah State Bar is out to educate the public about accessing legal services. It has found the average person is intimidated by the court system, worried about prohibitive legal costs and unaware of the programs available that can minimize the costs of talking with an attorney.

Pro Bono Assistance

The Utah State Bar offers several programs for low-income people, including free legal assistance. In fact, attorneys are encouraged to perform at least 50 hours of pro bono services every year as part of their obligation to society. It is considered part of a lawyer’s responsibility to represent those who cannot afford legal costs.

The state’s Pro Bono Commission matches up requests with the right attorney and the best public assistance program to meet that client’s needs. Organizations such as Utah Legal Services, the DisabilityLawCenter and the Crime Victim’s Legal Clinic provide help with issues ranging from housing disputes and consumer protection to immigration matters and domestic violence.

Another pro bono service includes legal clinics held on a regular basis so people can get advice at no charge. The Tuesday Night Bar is held every Tuesday from 5 to 7 p.m. at the Utah State Bar. This forum has no financial requirements, and individuals can discuss any legal topic with a licensed attorney.

Lawyers from several different fields including divorce, bankruptcy and injury are available to talk with clients for 20-30 minutes, giving advice about legal issues, reviewing contracts or pointing people in the right direction if they don’t know where to turn for legal help.

Attorneys hope having this resource available will dissuade people from turning to online sources and reduce the number of pro se (do-it-yourself) court cases.

“Because of the internet, there’s so much information out there and they think they can do it alone,” Gilson says. “They look up articles or they go to some website offering legal forms for free, or for a nominal cost, and they think this is just as good as going to a real live lawyer. And I feel that’s very shortsighted, because in the long run it’s going to cost those people a lot more.”

Modest Means Program

People who fit into the pro bono requirements can easily find the legal representation they need, but there is a significant segment of the population who don’t qualify for free legal aid because they make too much money or have too many assets, but they still can’t afford to hire a lawyer at regular rates.

For those individuals, the Modest Means Program comes into play. This new program matches clients with attorneys willing to work for a reduced fee—usually between $50 and $75 an hour. In the last year, lawyers took on more than 200 cases through this program.

With many attorneys underemployed and looking to expand their client base, the Modest Means concept is a winning situation for both parties. Nearly 200 lawyers have signed up and are willing to take Modest Means referrals.

While most of the cases in the program are in the family law area, such as divorce or custody issues, there are a broad range of situations that can be addressed including criminal defense, wills and trusts, contract review, bankruptcies and foreclosures. Interested parties fill out a form online, making sure they meet income qualifications.

“We’re not for people who can afford to hire a lawyer, but for people who can’t afford to pay regular rates,” Gilson says.

Other Ways to Save

“All the time I have lawsuits caused because people didn’t want to spend $1,000 with a lawyer the first time,” says Thomas W. Seiler, partner at Robinson, Seiler & Anderson and commissioner for the Utah State Bar. “Now they’re going to spend a lot more money and a lot more heartbreak in order to fix the problem.”

If you find yourself in a situation where you think you need legal advice, don’t hesitate to contact someone with more professional legal experience than you. In fact, getting short-term advice can be an inexpensive option. Under Utah law, the Supreme Court allows limited-scope representation, meaning a client can hire an attorney for just a portion of the case. The lawyer might appear at a hearing, file documents or simply coach behind the scenes. A creative billing structure or flat fee can be fashioned to cover the limited assistance rendered by the attorney.

For wrongful death or injury cases, attorneys usually never charge for the first consultation, and then they take cases on a contingency basis. This means if their client wins a settlement, the attorney will take 30 to 40 percent of the reward. But if the client loses, the attorney gets nothing.

While some might feel that percentage is too high, it covers costs that include investigators, gathering records, expert witnesses and depositions. Often, an attorney is into a lawsuit for thousands of dollars before it even goes to court.

Another way to find an affordable attorney is to ask around. People active in a church, club or organization could easily get an attorney referral, or even free advice, from other members in their group. Getting a referral from someone you trust is better than going online and taking your chances.

“I would encourage them to ask around, because lawyers are very much people,” says Curtis Jensen, president of the Utah State Bar and managing shareholder at Snow, Jensen & Reece.

When you do sit down with an attorney, don’t waste time, says Jensen. Have all pertinent documents organized, labeled, filed and copied for your lawyer to review and determine what’s relevant. Organization can save a client lots of money by saving the attorney lots of time.

Also, be up-front about the fee structure. Make sure you understand how you’re being charged to get a sense of what the cost will be. Knowing what to expect going into a situation will help ease the discomfort or nervousness that arises when dealing with legal issues.

Legal Benefits

More often, companies are offering voluntary legal benefits to their employees. Employees pay a nominal amount into the program and are then able to use a plan-specific attorney to address any legal needs like reviewing closing documents for a home, family law issues, estate planning, bankruptcy or misdemeanors.

Companies like Hyatt Legal Plans and ARAG provide these services, which often include an online education center, a phone line for legal advice from attorneys and even comprehensive legal insurance.

Jensen isn’t convinced these voluntary plans will catch on and become commonplace like auto or health insurance, but for employees who take advantage of the program, he sees a definite benefit. “A prepaid legal service has its niche. It’s a pretty good plan—if you’re going to use it.”

DIY Danger for Businesses

Seiler has seen first-hand how difficult it can be for the average person, with no legal background, to win a court case.

A businessman contacted Seiler regarding a situation where he was being sued for a construction loan on a home that went into foreclosure. Instead of contacting an attorney immediately, this client decided to go online and found a similar complaint in another state. He patched together a response to the suit, submitted it to the court—and received a judgment against him for more than $400,000, the most allowed for his case.

Knowing he couldn’t afford to pay that amount, he finally contacted an attorney who got the matter settled, leaving the client responsible for only $80,000. “That’s a massive difference,” Seiler says. “It’s still a bite, but it’s not going to bankrupt him. It will be manageable.”

Unfortunately, it’s a situation that attorneys see all the time. Sometimes it’s drafting business contracts, other times it’s drawing up an estate planning document, like a will or a trust. The internet has thousands of sites ready to prepare cheap business documents, grant quick divorces or draft inexpensive wills, but it still baffles attorneys that people think they can figure out these procedures without sound legal advice.

“I know there are all types of forms on the internet. People can pull down a $49 will,” Gilson says. “And whether it’s in compliance with Utah law, who knows? Maybe once they’re dead, they’ll find out it was defective. But that leaves the family to deal with it.”

Small business owners often try to go it alone by drafting their own contracts or entering into agreements without having the documents reviewed by an attorney. But a little preventative advice could save hundreds of thousands of dollars—and a lot of stress.

A skilled attorney can create documents customized to a client’s individual circumstances and can help people from falling victim to scams when dealing with issues like foreclosure.

Seiler warns that there is a lot of bad information out there, and he encourages anyone to pick up the phone and ask an attorney questions. Because each state has its own laws, if you don’t have a clear understanding of the issues you can’t make an informed decision.

“There are plenty of [attorneys] who are happy to talk to you. We kind of have a corner on information, and we’re glad to help that way.”