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YOU WANT TO CHANGE BEHAVIOR? USE THE DRUGCOURT FORMAT ...........................................................................1

UNBUNDLED LEGAL SERVICES: BE AFRAID, BE VERY AFRAID ............9

ELY FAMILY LAW DETAILS .............................................................11

IN THIS ISSUE

VOLUME 17, NUMBER 1 MARCH, 2002

A startling innovationhit our courts aboutten years ago that has

had unprecedented success inthe battle to stop drug addiction.Although this concept was newto the court system, it has beenaround for years in our educa-tional systems. The Drug Courtformat is simply taking the psy-chological techniques of behav-ior modification and adaptingthem to the court. Studies showthat behavior can change if theappropriate model is in place. Ofcourse, the judicial officer mustbuy into the philosophy and bewilling to change his/her court-room procedure accordingly forthis model to be successful.

This technique can be appliedto other issues facing the court.In the Eighth Judicial District

YOU WANT TO CHANGEBEHAVIOR?USE THE DRUG COURT FORMATby The Honorable Robert E. GastonEighth Judicial District Court, Nevada

cont. page 3

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NEVADA FAMILY LAW REPORT is aquarterly publication of the Family LawSection of the State Bar of Nevada.

Subscription price for non-sectionmembers is $35 payable in advance an-nually from January 1 to December 31.There are no prorations.

The NEVADA FAMILY LAW REPORTis intended to provide family law relatedmaterial and information to the benchand bar with the understanding that nei-ther the State Bar of Nevada, Family LawSection editorial staff nor the authors in-tend that its content constitutes legal ad-vice. Services of a lawyer should be ob-tained if assistance is required. Opinionsexpressed are not necessarily those of theState Bar of Nevada or the editorial staff.

This publication may be cited as Nev.Fam. L. Rep, Vol. 17, No.1, 2002 at ____.

Nevada Family Law Report is supportedby the Family Law Section of the StateBar of Nevada and NFLR subscriptions.

Co-EditorsRandy A. Drake

Gregory G. Gordon

Family Law SectionExecutive Council

Ann Price McCarthy, ChairEdward L. Kainen, Vice-Chair Rebecca L. Burton, Secretary

Todd L. Torvinen, Financial Officer

Peter J. Bellon, Las VegasRebecca A. Burton, Las Vegas

Randy A. Drake, RenoDenise Gentile, Las Vegas

William G. Henderson, Las VegasPeggy Manes, Reno

E.A. "Bo" Pollard, Incline VillageHon. Deborah L. Schumacher, Reno

Hon. Cynthia Dianne Steel, Las VegasJeanne Winkler, Las Vegas

13th Annual Family Law13th Annual Family Law13th Annual Family Law13th Annual Family Law13th Annual Family LawAnnual ConferenceAnnual ConferenceAnnual ConferenceAnnual ConferenceAnnual Conference

March 14-16

Ely — Bristlecone Convention Center

14.5 CLE credits available (2 ethics)

Tuition:$350 Family Law Section members

$399 non section members

Request registration materials from

State Bar of NevadaCLE Department

(800) 254-2797

see details page 11

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March, 2002

Court, the Juvenile Drug CourtFormat was successfully appliedto a Dependency Drug Court, anAdoption and Safe Families ActPilot Program, and a delin-quency Parole Intervention Pro-gram. With imagination and ef-fort this model can be applied toother juvenile and family relatedissues if behavioral change is thegoal.

HISTORICALPERSPECTIVE

Although judicial attempts ataddressing drug addiction havebeen tried for years, the firstDrug Court under the behaviormodification model began inDade County, Florida in 1989.1

As of June 1999, Drug Courtshad been implemented in some361 jurisdictions, and an addi-tional 220 were in various stagesof planning.2

The federal government hasbeen instrumental in providingfinancial assistance to expandthis Drug Court model through-out the nation. Between 1995and 1997, the U.S. Department ofJustice, through its Drug CourtsProgram Office, provided a to-tal of $56 million in fundingDrug Courts, and an additional$40 million in fiscal years 1999.3

Why has the federal govern-ment been willing to financiallysupport this Drug Court modelover the past several years? Sim-ply because it works. Reportsfrom the GOA (The General Ac-counting Office) have foundthat, “Drug use rates (as mea-sured by urine test results) andcriminal activities (as measuredby re arrests) are reduced while

participants are in the program.In those evaluations that in-cluded a comparison group,post-program re arrest rates forgraduates are lower than forcomparison sample offenders,and lower than for those whodrop out or are terminated fromthe program. Overall, compar-ing all drug court clients withcomparison offenders, moststudies found lower post-pro-gram re arrest rates for drugcourt participants.”4 To sum itup, this model works to changebehavior. If it is effective forthose who are seriously addictedto drugs it can be adapted to helpothers who need to change theirbehavior.

DRUG COURT MODEL

Steven Belenko described theDrug Court Model as follows:

“The drug court model usuallyentails:

1. judicial supervision of struc-tured community-based treat-ment;

2. timely identification of de-fendants in need of treatmentand referral to treatment as soonas possible after arrest;

3. regular status hearings be-fore the judicial officer to moni-tor treatment progress and pro-gram compliance;

4. increasing defendant ac-countability through a series ofgraduated sanctions and re-wards;

5. mandatory periodic drugtesting.”

“The drug court model incor-porates a more proactive role forthe judge, who in addition topresiding over the legal and pro-cedural issues of the case, func-

tions as a reinforcer of positiveclient behavior. Although thejudge is the central player in theprogram, most drug courts seekto function as a team in whichprosecutors, defense attorneysand counselors work together tohelp offenders overcome theirdrug problems and resolve otherissues relating to work, financesand family.

Defendants who complete thedrug court program either havetheir charges dismissed (in a di-version or pre-sentence model)or their probation sentences re-duced (in a post-sentencemodel)”5

The Role of the JudicialOfficer

One of the key elements in theDrug Court model is played bythe judicial officer. Under thismodel, the judge must step outof his traditional role as society’sagent for retribution. Instead,the judge under this model,would monitor a team of serviceproviders who would examinethe underlying socioeconomic,psychological, and educationalissues that result in the antiso-cial behavior and recommend acourse of treatment.6

The judge’s role, under thismodel, is to be the one that pro-vides positive reinforcement forgood behavior and “natural con-sequences” for inappropriatebehavior. As opposed to tradi-tional methods of adjudication,the judge in the Drug Court set-ting maintains an active, super-visory relationship with theDrug Court Participants. In theDrug Court, for example, thejudge would be the one who re-wards the defendant for accom-plishing an objective. If the de-

Drug Court cont.

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fendant has had perfect compli-ance as to all of the goals for thatperiod of time, the judge wouldgive the defendant a reward. Forexample, a defendant who testsnegative on all his U.A.’s (uri-nalysis), and attended all of histreatment groups would be con-gratulated by the judge who,with the others present in theDrug Court, would applaud hisperformance. As this individualadvances to different phases inthe program he would be recog-nized with a certificate. Thejudge would praise this personin front of the treatment provid-ers and his peers. Tangible re-wards like a certificate of ad-vancement from one phase toanother, a gift certificate for a freecoke, or a gift certificate for amusic C.D. have been very effec-tive, especially dealing withteenagers. Demonstrative re-wards like applause, handshakes and even hugs can bevery meaningful to the partici-pants regardless of age.

On the other hand, if this per-son did not do well in his treat-ment program, the judge wouldbe responsible to impose “con-sequences” or sanctions.

The judge also has the respon-sibility of monitoring and super-vising the treatment team. Heshould make sure that they stayon track with appropriate treat-ment and assist the team in find-ing resources that might assistthe participants.

This Drug Court format workswell because the court inter-venes frequently. In a typicalDrug Court format, the courtwould see the defendant everyweek. This makes the defendantaccountable to the court on a fre-quent basis and it reinforces tothe defendant that the court is

truly interested in seeing himsucceed.

As the defendant progressesthrough the program, the judgecan see him less frequently, withthe understanding that if he re-lapses, one of the consequencescan be to place him back a phaseand require him to attend courtmore frequently.

It is essential that the partici-pants appear before the samejudge throughout the DrugCourt experience. “Only onecourt with one judge adjudicatesand monitors all the casesscreened and all the offendersadmitted to the treatment pro-gram.”7 Otherwise the programwill lack consistency for the par-ticipants and individualprogress may begin to unravel.

The Treatment Team

The Treatment Team is madeup of the judge, the public de-fender, the district attorney andall of those individuals who havean interest from a service ortreatment prospective. A mem-ber of the drug treatment staff, adrug counselor, the Drug Courtprobation officer, an educationliaison person as well as a voca-tional trainer should all be partof this team.

The team meets every week, justbefore court, and discusses eachindividual’s performance for thepreceding week. The teamcollaboratively determines what ac-tion should be taken in court thatday, with the final decision restingwith the judge. The team also ac-tively participates in evaluating anappropriate program for each indi-vidual and determines if there areother services that might assist theparticipant in reaching his objec-tives.

“Under this model, as mem-bers of the drug treatment team(including the judge, the publicdefender and the district attor-ney) remain constant, they de-velop a familiarity with eachparticipant in the program anda unique awareness of all of thefactors impacting the lives ofeach of these young people. Thisintimate knowledge of each situ-ation allows the team to effec-tively hold the juvenile partici-pant accountable for his or heractions, and reinforces them inways that will keep them intreatment, if appropriate.”8

APPLICATION OF THEDRUG COURT

FORMAT TO OTHERAREAS

It is the opinion of this writerthat the Drug Court format canbe used successfully in other ar-eas where the goal is to changebehavior. This format, as waspreviously mentioned, is a legalapplication of behavior modifi-cation used for many years ineducational and psychologicalsettings. From Pavlov to Skin-ner in the psychological and be-havioral sciences, to Glasser andothers in the educational arena,the stimulus response technique,or rewarding positive behaviortechnique, has proven to be aneffective way to achieve certaindesired behavior.

If the subject is given a rewardevery time the subject achievesthe desired behavior, the appro-priate behavior is likely to be-come established. It is essentialthat the intervention of rewardsoccurs frequently in order forsuccess to be achieved. The sub-ject can also respond to sanc-

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tions. If the subject receives asanction for every inappropriatebehavior and that sanction oc-curs frequently and consistently,the subject is likely to avoid thebehavior that is undesirable.

As the reader can see, by ap-plying these basic behavioralmodification concepts, asubject’s behavior can be posi-tively affected in many areas oflaw: delinquency prevention,parenting skills, abusive drink-ing, abusive gambling, etc. Theapplication is as broad as theimagination.

These concepts were appliedto court programs in ClarkCounty with very exciting re-sults. These programs and howthe Drug Court format was ap-plied will be briefly discussed inan attempt to give the reader anidea as to how the format can beapplicable to a wide variety ofprograms where the objective isto change behavior.

Dependency Court

A dependency Drug Courtwas started in Clark County inJanuary, 1999. Those partici-pants in this program were, forthe most part, referred by ChildProtective Services (CPS), as par-ents who had been identified ashaving a drug problem. Thechildren had either already beenremoved from their custody, orit was an ongoing concern dueto the parents use of drugs.

The format of the dependencyDrug Court was very similar tothat of the juvenile Drug Court.There were four different phasesand the program lasted for aboutone year for most of the partici-pants.

This program monitored par-ents who had been addicted to

drugs for years. These parentsshowed significant progress indrug rehabilitation during thecourse of the program. Anevaluation of the programshowed that there was a successrate of 97%. This means that 97out of 100 parents who gradu-ated from the program were notreported for subsequent druguse, either criminally or by CPS.

Drug free parents were unitedwith their children with a planof permanency.

A.S.F.A. Pilot Program

The Adoption and Safe Fami-lies Act (A.S.F.A.) is a federal actthat was, for the most part,adopted by the state of Nevada.This Act requires, among other

things, that children who are infoster care be ordered into a planof permanency within twelvemonths of removing them fromtheir home. In 1998 the averagestay for a child in foster care inNevada was 3.2 years, with agreat many children staying inmultiple foster homes for 8 to 10years. Historically, the courtwould review these cases everysix months.

A pilot program was estab-lished incorporating many of theideas and techniques establishedin other jurisdictions which hadsuccessful programs. In order toimplement these ideas and tech-niques, the Drug Court formatwas adopted.

Using this format, perma-

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nency was established with 85per cent of the families involvedwithin the first nine months. Thecase plans for the remaining 15per cent of the cases anticipatedpermanent placement within thetargeted time of 12 months. Thefactors that made this programsuccessful were:

1. frequent court intervention,

2. team work of the serviceproviders, case workers and at-torneys,

3. assignment of attorneys forthe parents and children at theonset of the case, and the abilityto have 30 to 40 minutes for eachhearing to thoroughly discussthe issues, so that everyone hada clear understanding of thegoals and objectives.

Parole Pilot Program

For years, there has been a veryhigh rate of recidivism for youthwho have been sent to state op-erated youth camps for delin-quent behavior. Recidivism na-tionwide is reported as being at85 per cent. This program wasestablished in order to reducethe number of youth paroledfrom the youth camp and SpringMountain.

The treatment team includedthe judge, the district attorney,the public defender, the paroleofficers, therapeutic interventioncoordinator, Aspen coordinator,Boys and Girls Clubs coordina-tor, Parenting Training person-nel, and vocational counselor.This team would meet everyweek prior to the weekly courthearing and discuss how eachyouth did that week. Recom-mendations would be made re-garding additional services ayouth might need, as well as re-

wards or consequences for theyouth in his court appearance.

Although the program existedfor about five months, the resultsappeared to be very encourag-ing. During those five monthsonly one of the approximatelyfifteen boys was sent back toSpring Mountain Youth Camp.The cessation of the programhad nothing to do with the qual-ity or success of the program, butsimply a change in the judicialofficer.

The Drug Court format wasutilized and the court met withthese boys and their parents ev-ery week. The parents were re-quired to remain in court andparticipate in parenting classeswhile the boys had group meet-ings with their parole officers. AFamily Intervention therapistmet with each family, each weekto assist that family with rela-tionship problems that werepresent in the home. Every boywas involved in school, or work-ing full time, and was involvedin their local Boys and GirlsClubs after school.

The program was successfulbecause of the teamwork con-cept, the consistency of the pa-role officers and the frequentcourt intervention that rein-forced the parole officers andservice providers and rewardedthe boys for their compliance.

THE LEARNINGPROCESS

The judicial system has re-mained relatively unchangedover the centuries, notwith-standing research findings thatmay challenge the process. Thejudicial system has been prima-rily punitive. Although such a

system may be needed in crimi-nal or civil proceedings, it ap-pears to be least effective withjuvenile or family law matters.

Neurologists tell us that thebrain is composed of over 10 bil-lion neurons. Learning occurswhen some of these neurons be-come linked in patterns. Asso-ciations are formed when eventsoccur together in time.9 Pavlovand Bechterev studied the rela-tion of learning to the closenessof events in time. They foundthat if an animal completes adesired task and at the time isrewarded, that animal forms as-sociations so that he is morelikely to complete the desiredtask again.10

B. F. Skinner of Harvard Uni-versity developed the learningprinciple he called, “operate con-ditioning,” wherein he describedhow learning takes placethrough positive reinforce-ment.11 According to Skinner’sprinciple, when an individualcompletes a desired act and heis rewarded, learning takesplace. This reward stimulatesthe “pleasure centers” in thebrain. In a learning environmentit may simply be a smile or a paton the back for a child. In a class-room, a teacher’s smile or frownis intended to stand for any ofthe stimuli that produce pleasureor punishment connections asexperienced by the child. A childmust have a number of similarexperiences in order to learn.

Although punishment leads toa learned reaction of avoidanceof the activity, it must be fol-lowed by positive reinforcementof appropriate activities for longterm learning to occur. Obvi-ously, if an individual is rein-forced for what society believes

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is negative or inappropriate be-havior, that too is learned.

Applying positive reinforce-ment techniques in a structuredprogram entitled, “RealityTherapy,” Dr. William Glasserhad an 80 per cent success ratewith delinquent girls in a Cali-fornia youth camp. These girlshad been in institutional settingsfor years for crimes ranging from“incorrigibility” to first-degreemurder. Out of a total popula-tion of 370 girls only 43 were re-turnees.12

Dr. Glasser found that onecommon characteristic the girlsshared was a lack of a deep feel-ing for themselves or anyoneelse.13 The continuous positivereinforcement in a structured,secure setting had amazing re-sults, considering the fact thatthe previous rate of recidivismfor this institution was 90 percent. This represented on a 10per cent success rate.

What these experts tell usthrough these many years of re-search is that behavior can bechanged. By applying thesetheories of learning to programsinvolving children and families,the court can make a positiveimpact on the underlying prob-lems.

CONCLUSION

The creation of the FamilyCourt is a recent phenomena inthe United States. It makes senseto provide a forum where ajudge can hear and understandstrictly family and children is-sues. However, we cannot as-sume that we will be able to ef-fectively meet the needs of thesefamilies and children by con-ducting business as usual. Weneed to be constantly lookingoutside the proverbial envelopefor new ideas and techniques tomore effectively serve thesefamilies.

The Drug Court is an innova-tion in our court system that hasprovided us with a new under-standing as to how we canchange behavior. We need totake advantage of these innova-tions and look for ways we canapply them to these troubledfamilies. Parenting skills, com-munication skills, disciplinarytechniques, and extended familymatters are but a few of the is-sues we could look at in startinginnovative programs in the fam-ily court.

Only by trying new programsand new techniques in an at-tempt to be more effective for theFamily Court clientele can we beassured that the families are bestserved by our court system.

ENDNOTES1 Belenko, Steven, Ph.D., “Research on

Drug Courts: A Critical Review,”National Drug Court Institute Review,Vol. 1, Issue 1, Alexandria, Virginia,Summer 1998, p.3.

2 Belenko, Steven, Ph.D., “Research on

Drug Courts: A Critical Review, 1999Update,” National Drug CourtInstitute Review, Vol. II, Issue 2,Alexandria, Virginia, Winter, 1999,p.1.

3 Ibid, at p.3.

4 Ibid, at p. 4.

5 Belenko, Steven, “Research on Drug

Courts: A Critical Review”, Vol. I,Issue 1, op. cit. at 5.

6 Babb, Barbara A., “An Interdisciplinary

Approach to Family Law Jurispru-dence: Application of an Ecologicaland Therapeutic Perspective,” 72Ind.L.J. 775, 779 (1997).

7 Hora, Peggy Fulton and Schma,

William G., “Therapeutic Jurispru-dence and the Drug Treatment CourtMovement: Revolutionizing theCriminal Justice System’s Response toDrug Abuse and Crime in America.”74 Notre Dame L. Rev. 438,449(1999).

8 Coyne, Patricia J., “Rehabilitating

Punishment of Youthful DrugOffenders in the Clark County JuvenileDrug Court,” A paper presented to theBoyd School of Law, U.N.L.V. (Fall,2000), citing Hora & Schma, supranote 7 at 472.

9 Thorndike, E. L., Educational Psychol-

ogy, vol. 2., New York: Teacher’sCollege, 1913.

10 Pavlov, I. P., Conditional Reflexes,

London: Oxford University Press,1927.

11 Skinner, B. F.., “Experimental Analysis

of Behavior,” American Scientist,1957, 45, p.p. 347-371.

12 Glasser, William, M.D., Reality

Therapy, A New Approach to Psychia-try, Harper and Row, Pub., New York,1965.

13 Ibid. p. 68.

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March, 2002

This article was not intendedto be comedic; not entirely, any-way. However, in drafting it, thearticle became an opportunity toexpress very real concerns aboutwhat I perceive to be the dangersassociated with the irresponsibleimplementation of the concept ofunbundled legal services. I amnot opposed to the “concept,”but I am unnerved by the dan-gers associated with the imple-mentation of a system of un-bundled legal services withoutearnestly addressing the seriousconsequences associated withthe same.

I had the distinct pleasure ofattending the National Confer-ence on “Unbundled” Legal Ser-vices, in Baltimore Maryland, inOctober of last year. This expe-rience gave me a whole new per-spective on the area of un-bundled legal services. At therisk of being offensive (those ofyou who know me, recognize thesincerity of this concern), the fu-ture is extremely scary!

The conference was opened bythe ABA President-elect, RobertHirshon, who had, what I per-ceived to be, the most rationalapproach of anyone who at-tended the conference. The im-port of his message was that,unbundled legal services are

“UNBUNDLED” LEGALSERVICES:Be afraid, be very afraidBy Edward L. Kainen, Esq.

coming and the concept must behandled responsibly. In retro-spect, his message contained agood deal of foreshadowing ofwhat I sense to be the ABA’swell-founded fear that this con-cept will be carried out withoutsufficient responsibility andforethought.

WHAT AREUNBUNDLED LEGAL

SERVICES?In order to illustrate the con-

cept of unbundled legal services,every participant was handedseven “ice-cream pop sticks”wrapped in a gold band. Each“ice-cream pop stick” had one ofthe following words printed onit:

1. Gather facts;2. Research law;3. Advise client;4. Negotiate;5. Discovery;6. Draft documents; and7. Court presentation.The concept the speaker was

attempting to symbolize by thedisplay was that lawyers couldbe hired for “discreet lawyertasks,” as illustrated by thenamed tasks above. In that re-gard, the concept of “un-bundled” legal services allow a

lawyer to be hired only to nego-tiate, or only to advise the client,or only for court representation;hence “unbundling” the tradi-tional aspects of full representa-tion.

The next concept introducedwas akin to a physician’s Hippo-cratic Oath, in that unbundledlegal services should “do noharm.” In that regard, discus-sion continued and it was sug-gested that unbundled legal ser-vices or “limited representation”should be permitted when, “un-der the circumstances,” the samewill do more good than harm.

From my perspective, many ofthe individuals who spoke at theconference were nothing lessthan unmitigated zealots for un-bundled legal services withoutany ability to give any seriousconsideration to the problematicaspects of the concept. In form-ing my opinion, it should benoted that private practice law-yers made up only a small por-tion of the attendees. The ma-jority of the approximately 200attendees were largely legal ser-vices related. In that regard,there were several legal servicesdirectors or staff members, courtadministrators, judges, law pro-fessors and only a few membersof the private bar.

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THE PROBLEMS WITH“UNBUNDLED”LEGAL SERVICES

The reality is that there are sig-nificant obstacles to fully imple-menting the concept of un-bundled legal services. Most ofthe obstacles are systemic, or anatural result of the way that lawhas been practiced for severalhundred years.

In the effort to fully implementa program of unbundled legalservices, many of its advocatesare championing the destructionof the practice of law as we knowit. To further that effort, severalother concepts were discussed,including abolishing conflict ofinterest laws, eliminating theconcept of the formation of anattorney-client relationship,various forms of immunity forthose practicing unbundled legalservices, and an overall changein the idea of the lawyer beingthe “director” of a case to sim-ply being a “resource” for liti-gants who otherwise direct theirown cases.

Throughout the conferenceparticipants were divided intofive plenary discussion groups.Each of the groups was chargedwith discussing and making rec-ommendations on various as-pects of unbundled legal ser-vices, such as general state-ments, system recommenda-tions, court-related recommen-dations, organized private bar-related recommendations, andlegislative-related recommenda-tions. All of the plenary discus-sion groups addressed the gen-eral statements involving un-bundled legal services and eachdiscussion group addressed oneof the other topics. My groupdealt with the legislative-relatedrecommendations.

In terms of the General State-ments, there seemed to be a con-sensus in our plenary discussiongroup, and apparently in mostothers, on two concepts:

(1) That unbundled legal ser-vices offer potential benefits tothe justice system; and

(2) Unbundled legal servicesare not a substitute for full attor-ney repre-sentation.

Beyondthese ba-sic state-m e n t s ,t h e r eseemed tobe a sig-n i f i c a n tf rac turebetweenthe zeal-ots in fa-vor of un-leashing asystem oflimitlessu n -bundledlegal ser-vices andt h o s ewith ex-periencein the pri-vate prac-tice ofl a w .While everyone seemed to agreethat unbundled legal servicesshould not be a substitute for fullrepresentation, it became diffi-cult to accept that concept with-out relegating unbundled legalservices to a “second class” sys-tem. No one wanted to call theconcept of unbundled legal ser-vices a second class system, butthe reality is that unbundled le-gal services, when carried out,are in fact a lesser form of the

practice of law. I believe that thiswas the “unspoken” sentimentthroughout the conference, butit was just impolite to questionthe foundation of the subjectwhich brought us all together. Itwas tantamount to rejecting thepremise on which the conferencewas based. However, the real-ity is that those who can affordfull legal services are likely toreceive more substantial justice.

Some of the legislative-relatedrecommendations which werechampioned, included the fullspectrum from increased fund-ing to authorizing the courts toprovide assistance to pro se liti-gants and, ultimately, immunityfor those who provide un-bundled legal services. Afterconsiderable debate, the ulti-

mate resolution of our group,dealing with legislative-re-

lated recommenda-tions, was that no

legislative rec-o m m e n d a -tions shouldbe made.This was acase wherea minorityof us car-ried thed a y .T h egroupu l t i -

mately decided that unbundledlegal services need to be ad-dressed within a lawyer’s exist-ing ethical obligation and not bylegislation.

The concept of courts provid-ing assistance to pro se litigantsraised serious questions regard-ing conflicts of interest that havebeen dealt with and addressedby the Self-Help Center in LasVegas, which remains indepen-dent of the courts. The question

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March, 2002

of immunity or even qualifiedimmunity brought the mostheated debate. After consider-able discussion, our group tookthe position that removing theability to sue a lawyer for mal-practice was tantamount to anadmission that those providingunbundled legal services werenot competent to provide“good” legal representation and,if the concept of unbundled le-gal services was to succeed, ithad to have the same credibilityas the provision of traditionallegal services. Therefore, law-yers had to act knowledgeably,responsibly and ethically regard-less of whether they were pro-viding full legal services or un-bundled legal services. The con-cept of immunity was rejected bythe group and, with it, all otherlegislative recommendations.

The session entitled “Ethicsand Professionalism – a Com-parative Analysis of UnbundlingIssues in Different Contexts”was perhaps the scariest sessionof the entire seminar. I under-stood the collective belief of thepresenters to be that the Ameri-can Justice System favors thosewho have counsel and knowtheir rights (well, duh!). This,they contended, results in oursystem of justice being biasedand prejudiced against thosewithout counsel. Their argu-ment rests on the premise thatwe are holding pro se litigants toa higher standard, because courtrules and form of pleadings re-quire pro se litigants to try hardersince they do not have the samebase of knowledge as lawyers.Of course, the basis of their viewis that no one “chooses” to bewithout counsel, but people are“coerced by financial circum-stances or personal beliefs” notto have counsel.

They contend that a courtshould determine whethersomeone is permitted to proceedpro se, by employing the stan-dard of informed consent. Thespeakers considered the conceptof appointing lawyers to repre-sent all such situated personsand reluctantly rejected the idea,only for cost and practicality rea-sons. I mistakenly believed thiswas a sign that a good alterna-tive was going to be posited.However, the general consensusof the panel was that the prac-tice of law should be “deregu-lated” and that people who haveattended law school should notbe entitled to continue their “mo-nopoly” on the practice of law.Again, this was by far the scari-est of all of the sessions.

NEVADA’SRESPONSE

At least one important insightcame from this conference. Ihave been under the distinct im-pression that Nevada was waybehind the curve in providinglegal services to those who can-not afford a lawyer’s assistance.We have all heard about the pro-gressive nature of the Maricopaproject in Arizona. Clearly, theMaricopa project sets the stan-dard. However, it is worth not-ing that a significant part of thisconference was conducted insmall breakout groups that gavemost participants a chance to in-teract with other participants.Consequently, anyone who waswilling to make even a minimaleffort was able to speak person-ally with a majority of the peoplewho attended this conference.The truth is that Nevada’sprojects, specifically the Self-Help Center in Clark Countyand the Family Court

Facilitator’s Office in Reno, areamong the country’s leaders;being surpassed only by theMaricopa project in Arizona.

I believe that the Nevada pro-grams are a success because theywere formed with representationand involvement from those inall aspects of the system fromgroups looking out for the indi-gent, to those in private practice,and all levels of the Court sys-tem. In that regard, attendanceat this session did cause me tobelieve that we need to do every-thing we can to support our pro-grams, which deliver much-needed services in a responsiblemanner. I believe that our sup-port should recognize the posi-tive accomplishments of thoseinvolved in our Nevada pro-grams, which carry out their in-tended purpose without the per-ilous consequences which arelikely to result from the positionsadvocated by some of those at-tending the conference in Balti-more.

In all of this, there is a messageto the private bar which is ofcritical importance. Get in-volved with, support, and workto improve the good programswhich benefit our communities.Take a few pro bono cases eachyear. Our failure to eradicate, orat least reasonably address, theinherent problems discussedherein can have dire conse-quences. There is a real likeli-hood that we will find ourselveson the receiving end of a signifi-cantly less-desirable program orwe may have programs, likethose advocated in Baltimore,foisted upon us.

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March, 2002

Family Law in ElyThursday, March 14, 2002

9:00 – 5:30 Registration

10:00 – 3:15 Nuts and Bolts of Family Law Practice

Parental Alienation

Business Valuation for Dummies

3:30 – 5:30 Family Law Judge’s Panel (2 CLE hours)

5:30 – 6:00 Family Law Section Meeting

6:00 –??? Cocktails, Dinner & Entertainment

Friday, March 15, 2002

8:30 – 11:45 Litigating a Child Custody Case

11:45 – 1:00 Luncheon

1:00 – 3:15 Family Law Breakouts:

Immigration for Family Law Attorneys • Social Security & Family Law

Domestic Torts • QDRO’s for Dummies

Domestic Battery Defense • Pre/Post Nuptial Agreements

3:15 – 4:00 Case Law Update, Family Law General Session (.75 CLE hours)

4:00 – 4:45 Legislative Update Family Law General Session (.75 CLE hours)

5:00 – 6:30 Cocktail Reception, White Pine Co. Courthouse

6:30 –??? Annual Banquet & Entertainment

Saturday, March 16, 2002

8:30 – 10:00 Mock Bankruptcy Consultation (1.5 CLE hours)

10:15 – 11:45 “Up from the Ashes” Family Law General Session (1.5 Ethics CLE hour)

Page 12

March, 2002

State Bar of NevadaFamily Law Section600 E. Charleston Blvd.Las Vegas, NV 89104

C L E A T S E ASeptember 20-23, 2002

Featuring

Amy G. Langerman, Esq. Phoenix, AZ

Trial Advocacy: Domestic Violence (6 CLE hours) (Sat & Sun 8:30 – 11:30 a.m.)How to prove a case • How to disprove a case

How to handle an “independent medical practitioner”

3 nights cruise aboard Royal Caribbean Radiance of the Seas

Itinerary

Depart Seattle Fri 9/20 (5:00 pm) Vancouver, B.C. Sat 9/21 (7 am–5 pm)Victoria, B.C. Sun 9/22 (7 am–5:30 pm)Arrive Seattle Mon 9/23 (7 am)

Private welcome cocktail reception for all registered attendees

Proof of citizenship is required

Deposit Due: April 15, 2002, $50 per cabin, Final Payment Due: June 15, 2002

More information available by calling State Bar CLE @ (800) 254-2797 or Debbie Lapping,ProTravel (702) 871-0011