Should the Texas Medical Board distribute prescription pads to all Texans to prescribe their own medication because doctors are expensive? Of course not. The form is simply too dangerous without the accompanying expertise as to how to use it properly and safely. Likewise, the Texas Supreme Court should not give its imprimatur to legal forms for pro se litigants. Many unwary pro se litigants, lured into a false sense of safety by the Supreme Court’s endorsement, would inevitably suffer self-inflicted damage.
The Texas Supreme Court created the Task Force on Uniform Forms to assist indigent Texans through the creation and distribution of pro se legal forms officially endorsed by the court. The task force has issued draft forms for uncontested divorces with no children and no real property. While the process began with family law, the task force has indicated the possibility of adding other areas of law, including guardianship, estate planning and landlord-tenant.
There is a range of problems with the promulgation of check-the-box forms that bear the Supreme Court’s seal of approval. I will discuss three: the scope of the project, the lack of legal advice and defects in the forms. Then, I will offer three solutions.
• Scope: The push to create check-the-box forms likely will exceed the planned scope of the project. The announced intent of the program is to assist the indigent. However, there is nothing that restricts its use only to low-income Texans. Further, the announced original vision of providing forms for an uncontested, no real property and no kids divorce has been expanded to plans for forms for contested cases and other circumstances with more complex facts and procedural issues. Of course, the dangers of representing oneself increase dramatically in contested matters and as the level of complexity increases.
• Legal advice: Fill-in-the-blank forms do not provide the legal advice that parties in family court need. Ironically, the proposed forms begin with the following: “WARNING: Without the advice and help of an attorney, you may be putting yourself, your children, personal property, and money at risk. To get a referral to an attorney, call the State Bar of Texas Lawyer Referral Information Service at 1-800-252-9690.”
As the warning indicates, it is dangerous for pro se litigants to use a form without the necessary accompanying legal expertise as to how to use it properly and safely. Consequently, many will suffer actual harm in terms of lost rights and financial injury that may be irreparable or extremely costly to correct with the help of a lawyer, if they can be helped at all.
The lawyer’s function is much higher than simply picking a form. Texas’ low-income litigants need legal advice, not another set of forms that may harm their most important interests.
• Defects: Four groups in which I am active — the Family Law Council of the State Bar of Texas, the Texas Family Law Foundation, the Texas Academy of Family Law Specialists and the Texas chapter of the American Academy of Matrimonial Lawyers — have advised the Supreme Court in detail regarding dozens of defects in the proposed simple divorce kit offered by the task force.
The identified defects include constitutional violations, conflicts with the Texas Family Code and Texas Civil Practice & Remedies Code, and internally conflicting provisions between the instructions and the forms, as well as within the forms themselves. Some of the errors and omissions would amount to malpractice if committed by a lawyer in representation of a client.
The forms also would require significant ongoing maintenance to make them consistent with changes in the law. The court has no institutional capability to accomplish this task, and its ad hoc approach has failed.
Additionally, forms in the Texas Family Law Practice Manual and on TexasLawHelp.org already exist and are legally accurate. TexasLawHelp.org forms are available online for free and are written in plain language. The Texas Family Law Practice Manual is available for the price of copying in county law libraries where 16 million people live.
These two sources of forms already are publically available for use in a wide range of circumstances. There is simply no need to stamp the Supreme Court’s imprimatur on new forms (and there are many reasons to refrain) when these existing forms are accessible, legally accurate and updated consistently by experts.
The Family Law Section and the Texas Family Law Foundation have proposed compromises to the Supreme Court seeking agreed solutions to these problems. The proposals are balanced between providing legal services to those who cannot afford a lawyer, ensuring that litigants understand the risks and complexity of handling their own cases, and holding those who can afford a lawyer accountable if they cause excess costs in the system.
In lieu of forms developed and authorized by the Supreme Court, a simple amendment to Texas Rule of Civil Procedure 7 would authorize a pro se litigant to use a form approved by the State Bar of Texas or one of its sections or provided by legal-aid groups. The proposals recognize the difference between those who represent themselves because they cannot afford a lawyer and those who simply choose to represent themselves.
If forms are to be provided, they should be made available to indigent litigants at no cost. Those who are not indigent and choose to represent themselves anyway should pay for the forms, and those fees should be dedicated to paying for basic civil legal services for those who cannot afford them.
Additionally, because what low-income people really need is access to a lawyer, the proposals include a number of ways to fund an additional supply of legal services. Further, they call for the establishment of a Family Law Advisory Committee to advise the Supreme Court on issues affecting Texas families in the courts.
The proposed compromise continues the Family Law Section’s history of stepping up to solve the problems of the poor in Texas courts. It would also establish a new relationship between the Family Law Section and the court by recognizing the leadership role Texas family lawyers always have played in responding to the needs of Texas families. Finally, the compromises challenge the court and others to support reliable sources of revenue to sustain our basic civil legal services to Texas low-income citizens.
The Texas Supreme Court has taken the proposals under advisement. The Family Law Section stands ready, willing and able to continue its emphasis on pro bono representation and tradition of providing meaningful service to the indigent of Texas.