Reform needed for those who can’t afford a lawyer

Reform needed for those who can’t afford a lawyer

In September, The New York Times reported on the ordeal of Washington state resident Alexandra Nyfors, 66 years old, whose “only income is $1,700 a month in federal disability payments.”

She fell dangerously ill. An ambulance took her to a hospital in the Providence chain, which operates 11 hospitals in Washington, and many more in other states, including New Mexico’s own Covenant Health Hobbs Hospital.

Washington law imposes a duty on hospitals to provide “charity care” to “indigent persons when third-party coverage, if any, has been exhausted.” Ms. Nyfors was eligible for charity care, but she didn’t know about the law and Providence didn’t tell her.

“Six current and former hospital employees said in interviews that they had been told not to mention the financial aid that states such as Washington required Providence to provide,” according to the Times.

Defying the law, Providence billed Ms. Nyfors for the balance remaining on her bill after Medicare paid its share. The hospital gave her the choice of paying $1,950 immediately or agreeing to a payment plan, which was no choice at all.

To make the monthly payments, she cut back on groceries, went without heat, and “split her medication in two to make it last longer,” according to the Times. After Providence’s doctors and nurses healed her, their hospital’s administrators created conditions that put her at risk of medical harm.

One of Providence’s own employees had to go on unpaid leave to have surgery to remove a cyst. “The hospital billed her $8,000, even though she was eligible for discounted care,” the Times reported.

Then it revealed what happened next: “The hospital forgave her debt only after a lawyer contacted Providence on (her) behalf.”

That’s all she needed: A lawyer.

That’s what Ms. Nyfors needed, too. (She eventually learned her rights from an article in The Everett Daily Herald — in a pinch, a journalist will do.)

In theory, any Washington resident could look up title 70 of the state’s Revised Code, work through the key statute’s 13 subsections and then consult the state’s administrative code to learn of their entitlement to charity care.

In practice, the legal information available online is a dense jungle of entangling vines and false trails. Any non-lawyer, and especially any non-lawyer recovering from a serious medical event, needs an experienced guide to find their way through it.

For that reason, self-representation is not a realistic alternative for most people whose cases involve complex statutory or administrative schemes. They need legal assistance. But how can they afford it?

When you drive down Albuquerque’s freeways, you’re continually reminded of the competition among lawyers for personal injury cases. The billboard lawyers can say “we don’t get paid unless you win” because they take a percentage of their client’s winnings.

But a person pursued by predatory debt collectors isn’t in line to collect any winnings. Lawyers on the defense side in civil cases traditionally charge by the hour. For a person under siege from debt collectors, the best-case scenario is they pay the lawyer instead of the creditor. Worst case? They pay both, and the lawyer is more expensive.

Possessing legal rights means nothing if you can’t afford to enforce them.

New Mexico Legal Aid’s website states that it provides free legal services for people “who live in households with annual incomes at or below 125% of the federal poverty guidelines.” The 2022 federal poverty level for an individual is $13,590. Unfortunately, living at or above 126% of that level doesn’t automatically make hiring a private lawyer financially feasible.

Moreover, NMLA’s website adds this painful detail: “for every 14,000 poor persons (in New Mexico), there is one legal aid attorney.” That’s a fraction of the number needed.

A law review article by John M. Greacen and colleagues suggests one partial solution: “limited scope representation.” This would allow a person in need of legal services to buy a few hours of an attorney’s time without placing any ethical obligation on the lawyer to see the case through to its end.

“In many instances,” Greacen and colleagues write, “that time may be all that a litigant needs in order to successfully pursue a legal matter herself.”

Here in New Mexico, the Rules of Professional Conduct governing the legal profession allow lawyers to limit the scope of their representation, but only if the limitation is “reasonable under the circumstances.” Those four words are a kind of trap. If some authority deems the limitation unreasonable, the attorney could be found ethically and legally responsible for everything that happens to the client.

In this way, the ethical rules have the unintended effect of discouraging lawyers from providing useful legal advice to people with little money who, like Providence’s indigent Washington patients, might need only that one piece of information to defend themselves.

Revising the rules to authorize genuinely limited representation wouldn’t solve everything, or even most things. It’s a Band-Aid solution at best. But sometimes a Band-Aid is what a person needs.

Joel Jacobsen is an author who in 2015 retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at legal.column.tips@gmail.com.

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