COFAR blog

Last month, I wrote to the co-chairs of what appeared to be a highly prestigious organization that might help us find legal representation for people caught up in disputes over guardianship with the Department of Developmental Services (DDS).

The Massachusetts Access to Justice Commission bills itself on its homepage as “Working to ensure that everyone in Massachusetts has access to the justice they deserve.” The homepage adds that the Commission is concerned with “providing and improving access to justice for those unable to afford counsel.”

But how serious is this Commission really? On the surface, it would seem to be very serious. It consists of 28 commissioners who represent the top echelons of the Massachusetts legal system.

The commissioners include judges from the Superior, Probate, District and other courts in Massachusetts, attorneys with prominent law firms and legal assistance organizations, professors from major law schools in the state, two attorneys with the state Attorney General’s Office, and many others.

The chief counsel for judicial policy with the Massachusetts Supreme Judicial Court serves as the high court’s liaison to the Commission.

And yet, when I asked the Commission simply for information about how to ensure access to justice for people in the DDS and probate court systems, I was told that the Commission didn’t have the “authority or expertise” to help me.

A disagreement over what constitutes legal advice

I first emailed the co-chairs of the Commission on December 31, asking for answers the Commission might have to two questions:

1. What are the rules, case law etc. that govern representation of individuals in probate court and other settings by non-attorney advocates?

2. How can we find pro bono attorneys for family members involved in the DDS and probate court systems?

In a number of these cases, I noted, we have been asked by parents or other family members to help them fight efforts by DDS or other parties to remove their guardianships of their loved ones with intellectual and developmental disabilities (I/DD), or to help them seek to restore their guardianships.

It seemed the Access to Justice Commission might have answers to those questions because the Commission’s mission statement on its website states that the Commission is committed to:

• “Providing legal services for those unable to afford counsel“;
• “Enlarging the number of attorneys trained, willing, and able to provide pro bono civil legal services”; and
• “Enlarging the number of non-lawyers trained, willing and able to provide appropriate assistance to improving access to justice.”

On January 14, two weeks after I submitted my query, Deborah Silva, the director of the Commission, responded to me that the Commission’s co-chairs had forwarded my query to her. She said, however, that the Commission didn’t have “the requisite authority or expertise to answer” my first question.

Silva subsequently wrote that, “I honestly don’t know the answer (to that question), but because the Commission is not authorized to give out legal advice, I’m not sure I’d be able to be of much help even if I did.”

As to my second question about pro bono attorneys, Silva suggested that I contact another organization — the National Academy of Elder Law Attorneys (NAELA). She later added MassProBono.org to that.  More about that a bit later.

With regard to my first question about rules constraining non-attorney advocates, I responded to Silva that I actually hadn’t asked the Commission for legal advice. I had asked for information about rules that govern representation of individuals by non-attorney advocates.

My question was general in nature. I was not asking for anyone’s legal opinions about any specific legal case or cases. That latter activity — providing advice about specific legal cases — is what I would consider to be legal advice, and is what I would assume the Commission is prohibited from doing.

No help with pro bono attorneys 

With regard to my second question about finding pro bono attorneys, Silva, as noted, referred me to two other organizations — NAELA and MassProBono.

My real problem with that response is that it begged the question, why would such a seemingly high-powered and prestigious organization as the Access to Justice Commission need to pass the buck and shuffle me elsewhere? The Commission not only has those dozens of highly credentialed commissioners, it has a standing committee on pro bono legal services. It certainly has its own expertise in this area.

We had, in fact, already contacted a number of legal assistance organizations, and had gotten nowhere with them, before contacting the Access to Justice Commission.

Last fall, the Boston-based Disability Law Center stated that they don’t handle guardianship cases, while the National Center on Law and Elder Rights never responded to our query.

Brockton-based South Coastal Counties Legal Services said they couldn’t take on a particular case we were proposing because they were “up to capacity.” That case involves a woman who claims she has involuntarily been placed under guardianship by an organization funded by DDS. She needs an attorney.

In November, the executive director of the Easthampton-based Center for Public Representation (CPR) expressed interest in that guardianship case. But somehow that interest later evaporated.

Unfortunately, the Access to Justice Commission appears to be more of the same. It is yet another organization that claims to be committed to providing legal representation for people who otherwise couldn’t afford it. And yet, none of these organizations seems to be able to go beyond the words and demonstrate that commitment.

We remain committed to providing advocacy for people in the DDS and probate court systems. But those systems are largely broken. It’s time the people who run the institutions wake up to this reality and stop being satisfied with printing platitudes on their websites.