Poor? Need legal aid? Tiny part of landlord law could make lawyers wary of helping out

An effort to help poor tenants facing eviction get some free legal help was so successful last year that landlords started timing court appearances for days when the Eviction Defense Project wasn't in session. 

Since then, the project has expanded to three days a week from one, and its small staff and corps of volunteer lawyers aren't so easy to sidestep anymore.

But a package of laws signed by Gov. Scott Walker last month includes one small change that might become an obstacle to lawyers volunteering at all kinds of low-income legal clinics.

A 2015 Supreme Court rule allows lawyers to provide "limited scope representation," or "brief legal advice" at a legal clinic, without following all the steps associated with taking on a full client. It only requires that they mark any documents they help someone fill out with a stamp reading: "This document was prepared with the assistance of a lawyer." 

Under the new law, they would have to add their names and bar numbers. 

Why would that be troubling? Two reasons:

First, lawyers who do such work don't want to be recipient's personal attorney and don't want to become part of any case. They just want to give one-time free help. By requiring the name, they could get entangled in more.

Second, lawyers don't want to get their law firm involved inadvertently. Their firm may have clients who could be affected that the lawyer wouldn't even know about.

RELATED:In Milwaukee's wave of eviction lawsuits, these volunteer lawyers give tenants unexpected help

The small change included in Act 317 "has a potential chilling effect" on lawyers volunteering at clinics like the Eviction Defense Project, said Dawn Caldart, director of pro bono and professional development at Quarles & Brady, a Milwaukee-based national law firm.

"It's a solution in search of a problem," she said. "It will lead to confusion."

Angela Schultz, assistant dean for public service at Marquette Law School, which operates several free legal clinics in the area, said the name requirement raises all kinds of questions.

"The thing is, a lot of thought went into the limited scope representation rule, but hardly any went into this change," she said. "It's a shame." 

Heiner Giese, an attorney for the Apartment Association of Southeastern Wisconsin, said the lawyer name and number was his idea, but denied it was intended to starve the supply of volunteers at the Eviction Defense Project.

"It doesn't make them the attorney of record," Giese said. "They just have to reveal who they are if they file something in writing," like the checklist of possible eviction defenses that volunteers help tenants file.  Giese thinks those are often, "throw everything up there and see what sticks" tactics.

"The lawyer's got to be responsible," he said. "I think (the volunteers) file things they might not if their name was on it."  

Most of the time, Eviction Defense Project volunteers don't help fill out pleadings but merely consult with poor tenants. Giese said most landlords actually like the eviction defense project. "It helps move things along" by advising most tenants to work out agreements to pay rents they owe.

Giese said if other clinics encounter problems over the name requirement, his group wouldn't oppose some further modification or narrowing of the law.

 "I think there are workarounds," he said. "But maybe some unintended consequences will have to be addressed."

'Lawyers will be shocked'

Michael Levey, the national pro bono partner at Quarles & Brady, said the name requirement has been a hot topic among stakeholders trying to close the civil justice gap for poor people, but unknown to the general legal community.

"A lot of lawyers will be shocked when they find out about it," he said. "If this creates significant issues, at some point in time, I'd expect a response."

The need for volunteers is high in Wisconsin, which provides no state funding for legal assistance to indigent parties in civil cases that affecting basic human needs including sustenance, shelter, clothing, heat, medical care, safety and child custody. 

RELATED: Supreme Court rejects 'civil Gideon' attorney help for poor

The so-called "ghostwriting" rule, approved by the Supreme Court in 2014, allows volunteer lawyers to help poor or moderate-income people at free legal clinics without establishing a full attorney-client relationship. It was meant to encourage lawyers to volunteer without fear of more extended entanglements and obligations to a particular client or case.

Caldart said most lawyers who choose to do pro bono work for a clinic want to provide help in short chunks of time, without establishing ongoing attorney-client relationships. There's concern that adding a name to legal documents 

could create the impression the lawyer fully represents the person. They could send other legal documents to the lawyer, who would then have to spend time rerouting them or disengaging from a presumed appearance for the full case or matter.

For associates at large firms, it might also come back to cause business problems, Caldart said. Say a volunteer lawyer helps a clinic client fill out a form or pleading against a person or company the volunteer doesn't know is represented by the firm. 

The current rule insulates the lawyer from an ethical problem if she doesn't know of the conflict at the time of the brief legal advice. But it could still bring heat back at the firm if a partner hears from a client: "Why is a lawyer from your firm signing papers against me?"

The volunteer lawyers come from different kinds of practice, with different concerns. Someone on the fence about it might decline if they think attaching their name on a document might create an implication, or possibility for confusion, that she has committed to more than just providing brief legal advice.

"It's clearly an attack on EDP, but it affects the way volunteer attorneys can practice here, and how we can deliver services to poor clients," said Deedee Peterson, associate executive director at Legal Action of Wisconsin.

In addition to the eviction project, Legal Action coordinates volunteer lawyers on projects throughout 39 counties covered by its six offices.

Peterson said Legal Action is evaluating its response to the new name requirement. "We'll absolutely work on addressing it. We're not sure which way to go just yet."

The recent landlord-tenant law changes also:

• Require a tenant who seeks an exception to a no pets policy for an emotional support animal to get documentation of their need from a licensed health care professional.
• Eliminates waiver by the landlord, by, for example accepting rent, as a defense to an eviction.
• Says a landlord's time is part of reasonable costs that can be recovered for repairing damage to a property.
• Includes late fees in the definition of past-due rents.
• Makes it harder to get a hearing before a judge, by requiring a party to raise a valid legal ground for a contest, not just claim one exists.
• Says eviction notices no longer require an affidavit of service if proof is shown they were sent by certified mail.
• Ends automatic stays of eviction if a tenant applies for emergency assistance. Now, a stay not be granted after a writ of restitution has been ordered, and any stay can only last 10 working days, rather than "a reasonable period of time."
• Presumes notices to tenants of amounts due are valid, even if the amount is incorrect, unless it is shown the landlord intentionally misstated the amount, or the tenant has paid the amount the tenant believes is due.
• Says the online court system CCAP must keep records of evictions with judgments for 10 years, but that evictions dismissed without money judgments can be removed in two years.