There is a tremendous need for civil legal assistance for indigent populations. Likewise, thousands of Michiganders who are not categorized as indigent still cannot afford to hire an attorney. In an effort to bridge the gap between legal needs and limited resources, the Michigan Supreme Court (through its Justice for All Commission), the State Court Administrative Office, and the State Bar of Michigan have worked to enact changes to the Michigan Court Rules and the Michigan Rules of Professional Conduct that make legal services more accessible to those unable to pay for access. This column highlights some of those recent changes and spotlights unique challenges to consider when serving clients with low incomes.

CHANGES TO THE MICHIGAN RULES OF PROFESSIONAL CONDUCT

In May 2024, Rule 1.8 of the Michigan Rules of Professional Conduct covering attorney transactions prohibited by conflict of interest was amended to increase the level of financial assistance attorneys may offer pro bono clients.¹ This change helps remove practical barriers that indigent litigants may face, such as transportation to hearings. The previous iteration of Rule 1.8 allowed lawyers representing indigent clients to “pay court costs and expenses of litigation on behalf of the client” but made providing court-appropriate clothing a breach of professional conduct.² The recent amendments support a more holistic view of court access and recognize the day-to-day struggles of individuals living in poverty. The new rule allows lawyers who engage in critically needed pro bono work to provide transportation, lodging (if it is less costly than providing transportation for multiple days), meals, and clothing.

Assistance may be provided under this subrule even if the indigent client’s representation is eligible to be paid by the losing party under a fee-shifting statute.³ The rule also outlines restrictions on attorneys who choose to provide additional financial support to low-income clients, stating that:

Any assistance provided under subrule (3) must be delivered at no fee to the indigent client, and the lawyer may not:

i. promise, assure, or imply the availability of such assistance prior to retention or as an inducement to continue the client-lawyer relationship after retention;

ii. seek or accept reimbursement from the client, a relative of the client or anyone affiliated with the client; and

iii. publicize or advertise a willingness to provide such assistance to prospective clients.⁴

These changes will undoubtedly have a significant positive impact on low-income clients. Ensuring that clients can attend in-person hearings by covering their transportation or lodging costs could be the difference between maintaining housing stability and eviction. Similarly, the ability to assist clients with purchasing court-appropriate clothes can help them feel less like outsiders in court settings, reduce levels of anxiety, and result in judges and juries having a more positive impression of the litigants.

LEGAL AID ORGANIZATIONS MAKE PRO BONO WORK EXCEEDINGLY EASY

The changes to MRPC 1.8 are specific to attorneys serving pro bono clients. If you are considering doing pro bono work for the first time or for the first time in several years, connect with your local legal aid/legal services office. Michigan has six regional legal aid programs:

• Lakeshore Legal Aid
• Legal Service of South Central Michigan
• Legal Aid of Western Michigan
• Legal Service of Eastern Michigan
• Legal Services of Northern Michigan
• Michigan Indian Legal Services

Each program has a pro bono coordinator or a similar staff member dedicated to connecting clients in need of pro bono assistance with private attorneys. You can tailor your pro bono experience by identifying what types of cases you would like to work on (family, consumer, housing, etc.), the level of complexity you are comfortable with, and time commitment you are willing to give. Many legal aid offices also provide training and support so you feel more confident practicing in an unfamiliar area of law or if you are new to the profession.

In addition to direct representation opportunities, legal aid offices organize legal clinics or fairs that need volunteers. These events allow private attorneys to volunteer a few hours of time on a specific day without committing to anything more than giving clinic participants advice or helping draft simple documents. Some of the most common legal clinics focus on expungements, driver’s license restoration, and giving basic advice in family law cases. Offices have participants sign waivers that eliminate the liability of volunteer attorneys, address and remove concerns related to conflicts of interest, and, of course, set expectations appropriate for the particular clinic so participants know that no attorney-client relationship is created between a volunteer attorney and a clinic participant.

BENEFITS OF LIMITED SCOPE REPRESENTATION

Another significant change for low-income clients who cannot hire a lawyer to litigate the entirety of their case are the amended limited scope representation (LSR) rules — MCR 2.117(D) and MRPC 1.2(b) — that went into effect in January 2018. The expansion on an attorney’s ability to unbundle services can be transformative for clients. It allows litigants to access a lawyer’s skill and expertise for a critical moment in their case at a fraction of the cost.

Now, attorneys can provide limited scope document drafting services to clients, which can have a significant outcome in a case. Pro se documents can be confusing, and important facts or arguments are omitted because the drafter lacks legal experience and knowledge. That is why limited scope document drafting is mutually beneficial to the attorney (who is getting paid) and clients. Courts can also benefit by receiving better quality documents.

Attorneys may enter into LSR agreements with clients if doing so is reasonable under the circumstances and with the informed consent of the client. In the majority of cases, potential clients (and the courts) benefit from having an attorney’s assistance with even just one aspect of the case.

For an LSR relationship to be a fruitful one, it is always important to communicate clear expectations. For this reason, initial consultations focusing on understanding a client’s objectives, their budget, your LSR work in their case, and a plan for the client to represent themselves once LSR has ended are critical. The State Bar of Michigan has a limited scope toolkit for attorneys to use. It includes forms like engagement letters, retainers, and an end of representation letter. It can be found at michbar.org/limited-scope/toolkit.

REMINDERS ABOUT NOTICE AND WITHDRAWAL

Under MCR 2.117, limited appearance must include or be accompanied by a notice that identifies the scope of the limited appearance by date, time period, and/or subject matter.⁵ Notice of entry of a limited scope appearance follows the same rules as filing a notice of appearance with the court and serving all interested parties. It is important to remain within the scope defined by the notice of limited appearance.

When you have fulfilled your obligations under the limited scope agreement, you must file a notice of withdrawal with the court and serve it on all parties of record.⁶ The notice must state that you have fulfilled all obligations required by the LSR agreement and you are now withdrawing from the case. The notice must also state the client’s current service address and phone number.

If the notice of withdrawal is signed by the client, it is effective immediately. If the notice is not signed by the client, it becomes effective 14 days after its filing and service.⁷ Be aware that clients can object to the withdrawal on the grounds that you did not complete the agreed-upon services. Communication throughout the case, such as reminding the client of your limited role and when your services terminate, is a great tool to reduce potential confusion regarding your eventual withdrawal.

UNIQUE CHALLENGES WHEN SERVING LOW-INCOME PEOPLE

Clients with low incomes face unique challenges. These challenges often lead to actions that can be mistaken for non-cooperation, neglect, laziness, stupidity, lack of capacity, or defiance. Every seasoned legal aid attorney has had to respond to allegations leveled by opposing counsel seeking to weaponize our client’s poverty.

It is critical for practitioners and courts alike to step back and check our biases when confronted with the challenges faced by clients with low incomes. Developing court orders that account for finite access to resources, the need for accommodations, and realistic limitations on time are key.

A classic example is frequent adjournments. A common hardship indigent litigants (particularly single parents who are hourly wage earners) face when having to attend multiple hearings is a lack of paid time off. Taking multiple days off from work for multiple hearings could not only put a single parent on a path towards increased instability by leading to utility shutoffs and eviction because they lack the money to pay for all their bills, but even simply requesting time off could jeopardize their job if the employer is not flexible when it comes to schedules.

Similarly, low-income litigants (particularly older adults) unfairly have capacity concerns levied against them despite only struggling with lack of money or resources. Nicole Shannon, systemic advocacy attorney with the Michigan Elder Justice Initiative, authored the article “Poverty Masquerading as Incapacity”8 published by the American Bar Association. Shannon highlights the struggles indigent individuals face when simply seeking to retain their civil rights because of implicit biases about age, disability, and access to resources.

One way to combat the challenges outlined above is increasing the number of attorneys who assist with cases involving low-income people. The more attorneys who help with these cases, the more likely it is that our judicial system will change to become accessible to all.

It is essential for the private bar to continue to increase its involvement in cases involving clients with low incomes so just outcomes are achieved for all, not just those who can afford legal assistance.