A Question of Ethics

A Portal to the Future?

I admit I was intrigued by a recent news story about a court employee who was fired for providing legal information to a prisoner. The scenario below is based on that news item. The intriguing part for me was not the employee’s situation, a sad tale of someone who paid dearly for a tragic mistake, but the question of whether the circumstances that form the basis for the scenario are slowly changing in the courts. By the way, the names (and most of the other stuff) about the scenario have been changed from the original news story to protect both the innocent and the guilty.

The Scenario

A court employee provided a copy of a “winning” motion seeking post-conviction DNA testing that helped a prisoner win a reversal in a rape conviction for which the prisoner had been sentenced to a long prison term. By doing so, the court employee lost his job after court officials determined that he had crossed a line and provided legal advice about a case, among other claimed violations of court rules.

The employee admitted to giving a copy of a successful motion requesting a DNA test to his sister, who in turn gave it to the prisoner to use as a template in drafting his own motion. The court granted the test. When it was performed, the test showed that the prisoner’s DNA was not a match.

The court employee was fired less than a year before retirement. Initially distraught over the prospect of losing his pension, he became more philosophical once he learned that his pension was secure. “I lent an ear to my sister, and maybe I did wrong, but if it was my friend in prison, I would do just about anything to help. I think I might have been the answer to his prayers.”

The Twist

Let’s change the circumstances just a little. Instead of a court employee scouring the case management system (CMS) for a DNA-request motion that had been granted, imagine a hypothetical private litigant portal (we’ll call it DNAFreedom.com). Having paid for the court’s full CMS data dump, the portal conducted a word search for DNA or deoxyribonucleic acid. It found several motions requesting post-conviction testing, and then posted copies of the successful motions on the website.

Now for a paltry $4.99 anyone can access the motions and use the information as they please. Critics have claimed DNAFreedom is practicing law without a license by posting the motions. The portal responded that all the documents on the website are public. In fact, Westlaw does more or less the same thing. Critics countered that DNAFreedom is far closer to the website, “YouCanBeatThisDUI.com” than to Westlaw. Now every prisoner in the state’s correctional system has a real shot at getting a DNA test. We can’t forget that ultimately in the original news story, with the court employee’s help the prisoner was exonerated. Justice prevailed, right?

The Respondents

Here to comment on the scenario are Sheldyn M. Himle, chief court administrator for the Municipal Court in Milwaukee, Wisconsin; Renee L. Danser, deputy director and Zorza Fellow for the Self-Represented Litigation Network; Kip Anderson, court administrator for the Mohave County Superior Court in Kingman, Arizona; and Alyce Roberts, special projects coordinator for the Alaska Court System in Anchorage.

The Questions

Did the court employee give legal advice? Was the offense serious enough to warrant firing?
Alyce Roberts (speaking for herself, not as a representative of her court system) thought the employee was not giving legal advice and certainly should not have been terminated. “If a customer asks to see a public post-conviction relief case in which a motion for DNA testing was granted and the clerk is able to identify such a case, the clerk can make the case available for inspection. Simply making a public file or document available for inspection does not constitute legal advice.” Alyce reserved judgment over the “other claimed violations of court rules” mentioned in the news article.

Kip Anderson and Sheldyn Himle agreed with Alyce that the employee did not give legal advice. Kip noted, “The information he provided were public records that could have been obtained by members of the public and the employee’s sister could have obtained those on her own. The concern here is that the employee most likely made the copy on court time and probably using court resources. This would be a violation of his ethical duty to perform work impartially and not use court resources. I don’t think it rises to the level of firing the employee, but certainly would warrant some type of disciplinary action. Written reprimand and perhaps some unpaid leave.”

Sheldyn qualified his agreement. “If the document was provided or shared by someone who specifically represented to another person that it would help them with a legal matter, I would perceive that as legal advice.” That would qualify as an offense serious enough to warrant firing. “In this scenario, the devil is in the details. Whether the court employee should have been fired depends on the circumstances surrounding how the defendant’s sister came to have the document.”

It is not legal advice to provide templates to court users and allow those users to modify the templates to suit individual needs. In Renee Danser’s opinion, the employee’s action was the same as providing a form. However, she did think it was inappropriate for a court employee to provide information merely because of the ease of access to that information, regardless of whether it was a public record, to help a friend. “I once had a situation in which an employee knew the victim in a matter and would regularly call the victim with case updates, such as when things were filed or scheduled. This is all public record and something victims could look up on their own; however, the employee had easy and regular access to this information. It is difficult to explain to an employee why this is wrong because the information is all public but ultimately this is not a service the court offers every litigant, the employee didn’t regularly work with this information, and the employee was doing a favor for a friend, thus this probably crosses a line of impartiality.”

In the hypothetical, is DNAFreedom giving legal advice? Should DNAFreedom be prevented from doing this?

In the opinion of both Alyce and Kip, DNAFreedom was not giving legal advice and should not be prevented from conducting their business. Alyce responded, “DNAFreedom is simply making public documents accessible in a content searchable format.”

Kip saw this as offering legal information, forms, and pleadings, all of which are contained in court records. “Since this information is available to the general public, the fact that DNAFreedom is performing a search of the database and then charging for it is not any different than someone performing that same search individually on their own time.”

Sheldyn thought there should be some parameters placed around requests for information and documents. “For instance, the municipal court I work in has a retention schedule for its records. Once that retention timeline passes, records are purged. The law intends those matters to no longer be public record or available to others seeking such a record.” Wisconsin laws specifically prevent courts and agencies from asking requesters what their intended purpose is for having the records; however, Sheldyn suspects the laws surrounding this topic will be challenged in the coming years.

Renee notes DNAFreedom is simply providing a template, which is similar to the court providing court forms. “DNAFreedom is not precluded from giving legal advice because it has no duty of impartiality and is not affiliated with the judicial branch of government. The court really doesn’t have the ability to prevent DNAFreedom from doing this. If there were no electronic docket and no data dump, DNAFreedom could still send a human to the courthouse to look through all files and make copies of successful motions to give out as templates for its users. Ultimately, whether a litigant copies someone else’s work or not, the court will weigh the facts and evidence in each case individually and make a determination.”

If multiple portals started popping up offering a wide variety of successful evidence-based court processes for reasonable prices, could you see a time when court self-service centers would become superfluous? Could you see this model of private litigant portals being widely used in the future?

Sheldyn and Kip could see this business model initially becoming a very popular service. Sheldyn predicted, “I also think there would be a rash of failed attempts at success, due to the complexities of the law and individual cases. Nothing can take the place of someone truly learned in the law standing by your side and representing your best interest.”

Kip pointed out that the ability to pull up information or examples of motions that the public could use will certainly reduce people coming to the court and using the self-service centers. “However, with the recent emphasis on more access for pro per litigants, the self-service centers will want to expand and make available more online information as well.”

Renee reported that the Self-Represented Litigation Network conducted a study of remote delivery models used throughout the United States. That study found that remote delivery itself is a best practice, but that it depends upon the jurisdiction. Remote delivery is most often used in conjunction with either telephone or walk-in services, or both. “I do think that there may come a day in the future where we will be able to eliminate walk-in services of all kinds in courthouses, but I don’t think we are there yet and I don’t think that will be soon. We are still thinking critically about remote service delivery and have not yet come across a single method that addresses all needs. More importantly, people going through a traumatic time in their lives, which is often the case when someone must interact with the court, often want another person to help them through the process. This is such an essential service provided by a self-help or self-service center and one that should not be taken lightly or underestimated.”

Alyce could possibly see a time when the demand for services from court self-help centers might diminish, but given the choice she thinks most consumers would opt for the court’s free service unless the fee-based service was far superior. She could see fee-based litigant portals being widely used in the future, if they are proven to be highly effective, are offered at a reasonable price, and are strategically marketed to court users.

Ethically, is there really a difference between a private litigant portal and one of your own employees providing this information?

Renee said there was a difference. “Private entities are not held to the same code of ethics as court employees.”

Alyce did not see a difference between a private litigant portal and a court employee providing this information. She noted that many years ago, before the Alaska Court System had the numerous court forms available to court customers the system has today, it was common for clerks to inform litigants that they can look at public case files to find samples of pleadings and motions to use as templates for their case. “These litigants often could not afford an attorney and were in desperate need for legal information to help them navigate certain court processes such as filing an answer to a complaint, filing a motion, affidavit, or memorandum, requesting a court hearing, drafting a deed of trust, etc.”

Kip thought that as more information is available to the public, and as long as employees only provide facts about court procedures, timing, and resources, the argument about an ethical violation diminishes. “However, it is important to note that most of our employees are not tasked with researching or gathering specific information for the public. They should not be spending their time trying to provide advice or direction. Rather, those assisting the public should be providing access to the information and leave the searching up to the private entities engaged in that work.”

Sheldyn responded that court staff provide public documents to people every day, and it poses no ethical dilemma. “If one of my staff began selling those same public records for their personal gain, this would be a breach of ethics. So, if the question is, ethically, is there really all that much difference between a private litigant portal providing public documents for free vs. one of your own employees, I would say no.”

Thanks to Sheldyn Himle, Renee Danser, Alyce Roberts, and Kip Anderson for their insights regarding this important issue and possible bourgeoning business model. Could private litigant portals slowly replace self-service centers? Only time will tell. Be sure to visit the NACM ethics web page at http://nacmnet.org/ethics to see previous ethics columns and to download educational ethics modules your court or state association could use to present ethics training in your state. If you have an ethical issue you would like to discuss or if you have comments on this or any of the previous columns, please contact me at pkiefer@superiorcourt.maricopa.gov.


Peter C. Kiefer is the southeast regional court administrator for Maricopa Superior Court in Phoenix, Arizona. He has been questioning ethics for Court Manager since 1994.