This is a draft of a forthcoming article in the Maryland Bar Journal.
This article briefly explores (a) logistical challenges encountered by legal services providers during the COVID-19 pandemic; (b) technological challenges frequently experienced by low-income clients; and (c) the pros and cons, from these clients’ perspective, of remote court hearings. It includes several recommendations for courts to provide due process for low-income Marylanders.
It is well known that over 80% of low-income Marylanders do not have access to basic necessary legal services. In the pre-COVID environment, much of the assistance provided by attorneys took the form of brief advice, information, and referrals (usually delivered by telephone or internet) or through in-person courthouse and community-based legal clinics and self-help centers. But in nearly all cases, the only way to participate in court proceedings was in person.
Since the early days of the COVID crisis, while attorneys have turned to high-tech solutions to serve paying clients, many low-income clients still rely exclusively on the telephone. Any remote-access solution implemented by the courts requires clarity about the due process implications for litigants without access to the technologies used to replicate court processes or access court-based services at a distance.
Lawyers at home: The logistics of providing legal services remotely
Following the Governor’s March 5, 2020 declaration of a state of emergency and the Maryland Court of Appeals’ March 12 Suspension of Non-Essential Judicial Activities, many legal clinics within the state were shut down or forced to operate remotely. Though legal services were considered essential, courts closed for most purposes, many lawyers started working from home, and large gatherings became unworkable.
This affected legal clinics, like the community-based Tax Sale Prevention clinics offered by the Pro Bono Resource Center of Maryland (PBRC) and Maryland Volunteer Lawyers Service (MVLS). These clinics allow clients to meet with volunteer attorneys to receive advice and resources on the spot, and request additional pro bono services.
With each client, volunteer attorney, and program staff attorney in a separate location, PBRC moved quickly to recreate the interactions using a variety of technologies. They gave volunteers online training and resources; confidential Google accounts for chat and email communication with mentors; Google Voice accounts to allow reliable contact with clients; and an online form system to manage intake information and remote client signatures. Other clinics and programs across the state used an even wider range of tools to manage remote volunteers and keep help available.
Clients at home: The challenges of receiving services at home
While the lawyers, volunteers, mentors, interpreters, facilitators and trainers had to come up to speed on a wide range of technology tools, many clients still rely on exactly one tool – the plain old telephone.
For example, the Women’s Law Center’s (WLC) Judicare project asks potential clients if they can (a) receive email, (b) print a form, (c) fill and sign it, (d) scan a copy and (e) email it back. WLC estimates that over half of their clients do not have this technological capacity. For those clients, WLC staff members read the forms to the client over the phone and fill them out on the client’s behalf.
Similarly, PBRC’s Home Preservation Project (HPP) uses a simple web-based form to gather information from clients. Those with internet access fill out the form themselves. For others, program staff read the form over the phone and transcribe the clients’ verbal answers.
Either way, HPP has been forced to loosen its standards for accepting client signatures. Clients filling out their own forms sign by typing their name. For phone-based clients, program staff document the client’s verbal agreement. Both approaches conform to the Rules of Professional Conduct, but both are stark departures from ordinary practice.
HPP observes that they cannot count on clients, or even volunteers, having access to video chat. Not all lawyers are tech savvy, and some of the most active volunteers are retired lawyers whose practices have not focused on cutting-edge technology. Moreover, even if both clients and volunteers do have access to video technology, they may not have access to the same platform – and are thus unable to connect in that way.
Mid Shore Pro Bono serves clients in an unusually challenging technological environment. In broad swaths of the multi-county service area, no broadband internet service is available. (The Congressional Research Service reports that over 324,000 rural Marylanders are without access to high-speed internet.) On the Shore, already a remote area, are many small pockets of low-income residents. The long distances make it even more challenging to get to a wi-fi hotspot or other internet accessible location.
Court hearings from home? Challenges, opportunities, and due process concerns for low-income litigants
Court hearings in person
Low-income Marylanders, and particularly those in rural areas of the state, often have great difficulty arranging transportation and taking time away from precarious home or work situations to come to court. For some, remote hearings could prove a boon.
On the other hand, legal assistance resources are frequently accessed at the courthouse itself. Any closure of the courthouse provides a barrier to accessing these services, particularly when citizens are not informed by the courts of telephone-based alternatives.
In the 2019 fiscal year, Maryland’s District Court Self-Help Resource Centers provided over 22,000 instances of walk-in service. An additional 5,600 instances of service took place at the Frederick County courthouse, and court law libraries provided over 146,000 in-person instances of service.
Beyond brief advice, many low-income debtors and tenants receive day-of-court representation and settlement negotiation assistance through programs funded by the judiciary. These programs exist because of the tremendous level of need, and lawyer representation has been shown to greatly improve client outcomes. However, litigants often become aware of the help available only when they show up to court.
The strides Maryland courts have taken in recent years to increase access to justice will be tremendously undercut if litigants cannot access these resources. This problem would be significantly mitigated if the court would send to all litigants, with the summons, the contact information for all legal services that were available in the courthouse prior to the COVID crisis.
If an effective remote implementation of certain court processes and court-based services can be found, it could help solve a long-standing challenge – transportation. However, any such solution must ensure that litigants can (a) understand the proceedings, (b) interact confidentially with counsel, (c) effectively provide evidence, and (d) readily access the full range of assistance that was available at the courthouse prior to the COVID crisis.
Court hearings by video
Based on the experience of legal service providers, there is little hope that most low-income Marylanders can participate meaningfully in court hearings by video. Indeed, Maryland Volunteer Lawyers Service (MVLS) reports that most of their clients are not interested in trying to communicate via video chat.
MVLS connects pro bono lawyers with clients in need throughout large areas of Maryland. During the shutdown, one category of MVLS cases that still proceeded with remote court hearings was guardianship. Based on feedback from volunteers, MVLS reports that clients often have limited mental capacity, and many do not even understand that they are participating in a hearing because of the video format.
Court hearings by audio telephone
Because the telephone is often the only remote technology available to clients, we consider its effectiveness in court proceedings. While a telephone may facilitate useful interaction with a trusted advisor or advocate, it is unclear that it can reliably support meaningful participation in an evidentiary hearing.
Most cases involving self-represented and low-income clients deal with family law, housing, and consumer law. When these cases go to court, the evidence frequently involves emails and text messages, digital photographs, or piles of crumpled receipts. This is the documentary evidence on which these cases often turn, and this is precisely the evidence that cannot be readily presented by telephone. Indeed, it would be difficult for any but the most sophisticated litigants to effectively present such evidence by any remote means.
Remote audio hearings also provide challenges for judicial credibility assessments. Such assessments are critical in cases involving strong emotions and in cases where judges exercise significant discretion or are forced to proceed quickly through a large docket. Finally, any remote solution must allow confidential communication between client and lawyer during the proceeding.
Recommendations for Maryland Courts:
- Inform litigants about court-funded services, including sending, with any summons, phone numbers for legal services that were available in the courthouse prior to the COVID crisis.
- Provide a telephone-only option for any remote proceeding.
- Do not enter any judgment, including a default judgment or judgment for possession, in any case in which a party has not had an opportunity to be heard in person.
- Do not hold remotely any proceeding in which a party would have an opportunity to present evidence unless the party affirmatively consents.
- Clarify that a litigant who, with the intent to sign the document, types their name in the signature block of a document and files that document with the court has met the signing requirement of Rule 1-311.
- Provide, for courts in non-MDEC jurisdictions, an email address to which self-represented litigants can email court filings, in lieu of mailing them.
- Provide outdoor free public wi-fi zones in which citizens can securely and reliably access the internet.
- Adopt a standard menu of communications technology options for remote proceedings, including options most frequently available to low-income litigants. Ensure that each option supports confidential remote communication between clients and attorneys, including during remote hearings.
- Provide clear printed training for any technologies used.
* Dave Pantzer serves as the Director of Education, Outreach, and Technology for the Pro Bono Resource Center of Maryland