Wyoming Takes 1st Step Towards a Civil Gideon

Legal Services Funding bill aids low-income citizens


by Carol Crump
Thursday, March 18, 2010 5:08 PM MDT

The images of the people that showed up at the five Access to Justice Commission public hearings last year have stayed with Wyoming Supreme Court Justice E. James Burke. Gov. Dave Freudenthal’s signature on March 11 on HB61, Legal Services Funding, was the necessary first step to do something about those images.

The task the Wyoming Supreme Court, in cooperation with the Wyoming Bar Association, gave to the commission that Burke chaired was to evaluate the specific legal needs of low- and moderate-income people in Wyoming, and figure out how to address those needs. According to a letter of support for the bill from the governor, conservative estimates are that 75,000 in Wyoming live in extremely low poverty. National estimates are that at least 80 percent in that group who have a civil legal issue will not be able to get help.

In 2009, Wyoming and Idaho were the only two states in the nation that didn’t have a specific appropriation to directly support general, civil legal aid for low income individuals. The law that goes into effect on July 1 will put Wyoming in line with the rest of the nation by providing legal services statewide for the tens of thousands of Wyoming people who can’t afford the legal services they need.

The executive summary of the Wyoming Access to Justice Commission’s report compiled for the governor and legislature after five public hearings held around the state from July to November last year defined those who need help getting legal services in Wyoming. According to the information provided by the public, attorneys, human services and nonprofit agencies and legal services clients, they are the elderly or disabled, struggling with Social Security and Medicare, guardianship or a will. They are families living in substandard housing or families struggling with medical bills because they lost their jobs and health insurance during the recession. They are young mothers, caught in domestic violence situations, who need help with protection orders, divorce or custody proceedings. And they are children, who may simply need protection.

The funding for a still to be defined legal services program will come from a simple $10 fee tacked onto each court case filed in the state. Patterned after a fee that is already in place for court technology, the new fee is expected to generate $1 million to $1.5 million each year. The bill that was passed will have no impact on the state general fund; the new program will be paid for equally from all criminal and civil cases filed in district, circuit and municipal courts.

Prior to the bill’s passage, there was no viable statewide program for legal services for the indigent for civil cases like the public defender system provides in criminal cases. Legal Aid of Wyoming receives $700,000 in federal funding each year, but the money was not enough for a viable statewide program, Burke told Wyoming Public Radio when the money started to coming to Wyoming last August.


As the bill became law, the next step n how to provide legal services n will be the most crucial, said 7th District Court Judge Scott Skavdahl, who is one of the local representatives on the 18-member Access to Justice Commission, along with attorney Stuart Day and Natrona County District Court Clerk Gen Tuma.

The courts will begin collecting the additional $10 filing fee in July. By September, Burke hopes to have a plan for how best to utilize the funds that will be part of the Supreme Court’s budget. By November, the law requires a plan to be ready for the Wyoming legislature, which will authorize spending.


“This was the necessary first step,” Burke said. “We’ll put the funds to good use.”







http://www.casperjournal.com/articles/2010/03/19/news/news31.legal services

Indigent Defense: Caseload Standards

Steven Zeidman

New York Law Journal

March 24, 2010


Almost 50 years after the U.S. Supreme Court articulated a constitutional right to counsel in criminal cases in Gideon v. Wainwright, New York is poised to more fully actualize that profound declaration. A series of seemingly unconnected events has created a historic opportunity. First, a remarkable paragraph was tucked away in last year's state budget bill. Inspired by the longstanding crisis in indigent defense, §56-b directed the chief administrator of the courts to "promulgate rules relating to caseloads for attorneys representing indigent clients in criminal matters in cities of one million or more." The legislation further mandated a five-year phase-in for the court's solution to the caseload problem. Phase one is to begin on April 1, 2010.

As indigent defense made its way into the state budget, the New York City committee on fire and criminal justice services planned hearings to discuss capping the number of cases an attorney can handle when representing indigent defendants. More recently, the governor's executive budget for 2010-11 called for the creation of an entity to oversee indigent defense services statewide. In New York City, the office of the criminal justice coordinator issued a new round of requests for proposals for offices to handle indigent defense work.

Coinciding with this legislative and executive interest in indigent criminal defense is a rare opportunity for the Judiciary to intervene. In 2007, the New York Civil Liberties Union sued New York State alleging systemic and flagrant violations of the constitutional right to counsel. In a rare kind of legal perfect storm, the case was heard yesterday by the Court of Appeals. (See the Law Journal's coverage of the arguments in "Cost of Suit to Improve Defense of the Indigent Raises Concerns.")


The legislation and the lawsuit come on the heels of reports that highlight the dismal state of indigent defense across the country. The Constitution Project's "Justice Denied: America's Continuing Neglect of Our Constitutional Right to Counsel," and the National Association of Criminal Defense Lawyers' "Minor Crimes, Massive Waste: The Terrible Toll of America's Broken Misdemeanor Courts," catalogue the problems of underfunded and underresourced public defenders, and the ongoing failure to realize the lofty ideals captured in the language and reasoning of Gideon. New York figures prominently in both reports.

Given this historic convergence of attention and opportunity regarding indigent defense, any attempt to create standards for ensuring effective indigent representation must be carefully scrutinized. The seeming numerical gold standard for indigent defense caseloads was established 37 years ago by the National Advisory Council (NAC) of the Federal Law Enforcement Assistance Administration. The council's Standard 13.12 provides that, "[T]he caseload of a public defender attorney should not exceed the following: felonies per attorney per year: not more than 150; misdemeanors (excluding traffic) per attorney per year: not more than 400."

Those numbers have been referenced, cited and adopted in many states and by many organizations. New York City adopted the the council's standards in 1996, and now the original council numbers are back—New York State's Chief Administrative Judge Ann Pfau responded to the legislative call for action by repromulgating the National Advisory Council caseload standards. While the action taken by the court to limit caseloads should be applauded, it is best understood as a critical first step on a long path.

The National Advisory Council numbers must be placed in context. It was 1973. Gideon was still new and public defender offices were a relatively recent development. The American Bar Association Standards on Criminal Justice were in their infancy. The knowledge and understanding of what it took to effectively represent someone charged with a crime was evolving. And yet one familiar scenario was quickly taking shape across the country—public defenders were representing too many people.

The National Advisory Council standards were borne out of an effort to address a serious and burgeoning problem, but no doubt those who divined the numerical standards recognized the limitations inherent in their suggested solution. While it was important, obviously, to place limits on how many people any one public defender represented, the numerical standard was meant merely to be the start of a serious, constitutionally and ethically mandated discussion of what it takes to provide effective assistance of counsel. The oft-cited standards were, after all, an attempt to quantify the unquantifiable. All too often, however, crises in indigent defense follow the same formula: a call for a commission to examine a problem that is already apparent on its face, and then a recommendation by that commission for the imposition of the National Advisory Council standards. As a result, the overall state of indigent defense remains in perpetual crisis.

Numbers should not be the only, nor primary, way to assess defense attorney effectiveness. Imposing numerical standards is not a magic elixir that will suddenly transform the state of indigent defense practice. The problems run deep and can only be addressed through searching inquiry into the nature of indigent defense practice.

What are the component parts of quality defense lawyering? What are the institutional norms and loyalties that impact public defenders? What are the prevailing attitudes of public defenders toward their clients, their work and what is means to be a zealous advocate? What do the accused, the consumers of indigent defense services, have to say about their lawyers? What is it that should make us confident that public defenders will provide dramatically better representation simply by virtue of having 10, 20 or 50 fewer cases in a year?

While the legislative recognition of the indigent defense crisis is cause for optimism, and the lawsuit has the capacity to reshape the delivery of indigent defense, any benefits to be realized hinge ultimately on a fundamental shift in the way the problem is conceptualized. We must do more than zero in on caseloads. Creating mathematical-like formulas that weigh various types of charges in an effort to empirically fix the amount of attorney time needed to handle a particular case is an inadequate solution. The crisis is not about caseloads, it is about people. People with constitutional issues regarding why they were stopped and frisked. People presumed to be innocent. People in fear of being deported, evicted, incarcerated and separated from their loved ones. People with hopes and dreams. How are public defenders addressing those concerns? What is it that public defenders actually do on behalf of the clients they represent? Those questions are more important than asking how many cases they handle in a year.

In this rare moment when the eyes of so many are fixed on the rights of the accused and the state of indigent defense, the possibility of substantive and enduring reform is within reach. Caseload caps are the start. The ball is now in the Court of Appeals.

Steven Zeidman is director of CUNY School of Law's criminal defense clinic. He is a former Legal Aid Society attorney and serves on the Indigent Defense Organization Oversight Committee.




http://www.law.com/jsp/nylj/PubArticleNY.jsp?id=1202446663975

NY Court to consider legal services for the poor

ALBANY, N.Y. (AP) - New York's top court is hearing arguments in a class-action lawsuit that accuses the state of failing to provide effective legal representation to the poor.

The New York Civil Liberties Union sued the state in 2007, claiming flaws in the court system violate the state constitution and the Sixth Amendment by preventing the poor from getting adequate legal representation.

The lawsuit claims the state has failed to provide sufficient funding, oversight and standards for the court system, which has resulted in unfair convictions, longer sentences and absent attorneys.

The Court of Appeals will hear arguments Tuesday.







http://wnyt.com/article/stories/S1479868.shtml?cat=0

Chief Judge Calls on NY to Uphold Spirit of Gideon

At a legislative hearing in January on the state's IOLA program and the crisis in civil legal services, Chief Judge Jonathan Lippman of the New York Court of Appeals called on the state to uphold the principle of access to justice, noting that "the spirit of Gideon applies to the civil side." With great conviction Judge Lippman described the judiciary's dismay at the hardships experienced by the skyrocketing number of low-income litigants forced to "fight alone for life's basic necessities," as well as the increasing burden low-income litigants pose for the functioning of the courts.

Judge Lippman's testimony is approximately at minutes 15-25 of the video, with questions from legislators extending his appearance through minute 38. At approximately 4 hours 15 minutes into the hearing the committee patched in California Assemblymember Mike Feuer by videoconference. Feuer, sponsor of California's recently passed Sargent Shriver Civil Counsel Act (A.B. 590), described for the committee the content of the legislation and the process of getting it passed.





http://civilrighttocounsel.org/news/recent_developments/36

Towards a Civil Gideon: Litigation Update

Litigation Update

Lots has happened in the last six months on the civil right to counsel litigation front. One high-profile case referenced in the Oct. 2009 Civil Right to Counsel Update was Rhine v. Deaton, which involved the right to counsel in Texas termination of parental rights (TPR) cases. The petition to the U.S. Supreme Court argued that the Texas statutory scheme violated equal protection by providing a right to counsel only where the TPR petition is filed by the state and not by a private party. At the Supreme Court's invitation the Texas Solicitor General filed a brief; he urged the Court to deny the cert petition, which it did on Jan. 25.

In another case, Bellevue v. E.S., the Washington State Court of Appeals found a right to counsel in truancy cases based on the combination of education, liberty, and privacy interests, and the Washington Supreme Court has granted review to determine whether the U.S. and/or Washington Constitutions provide a due process right to counsel. Links to the opinion, amicus briefs, and video of the Jan. 19 oral argument are on the NCCRC website. NCCRC provided litigation support to counsel for E.S. as well as to various amici in the case.

Finally, In re DR/AR concerned the right to counsel for children in Washington dependency cases. While the state has conceded that the trial court abused its discretion by failing to appoint counsel for these particular children pursuant to a state discretionary statute, counsel for the children argue in their petition to the Washington Supreme Court that due process requires a right to counsel for all children in dependency cases. NCCRC provided some research support to petitioners in the case.

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CA's Sargent Shriver Civil Counsel Act: How It Happened

In the March-April issue of CLEARINGHOUSE REVIEW you'll find the behind-the-scenes story of how A.B. 590, the Sargent Shriver Civil Counsel Act (aka the state's "pilot project" bill), came into being. Written by Kevin Baker, Deputy Chief Counsel to the Assembly Judiciary Committee, and Julia Wilson, Executive Director of the Legal Aid Association of California, the article recounts the bill's origins in California's model statute task force, the 2006 ABA resolution in support of a civil right to counsel, and the July-August 2006 special issue of CLEARINGHOUSE REVIEW on civil right to counsel that was timed to coincide with that resolution. The article also explains the critical leadership provided by the chief justice and by legislators who are former legal aid lawyers.

Baker and Wilson encourage advocates for a civil right to counsel in other states to consider legislative as well as litigation strategies and to take heart from the success of A.B. 590 amid the state's financial meltdown. The authors stress the importance of input from the legal aid community throughout the process and describe the framework A.B. 590 sets for shaping the pilot projects. Planning is underway and the pilot projects will begin offering representation to clients next year. The article, entitled "Stepping Across the Threshold: Assembly Bill 590 Boosts Legislative Strategies for Expanding Access to Civil Counsel," is posted on the coalition's website.

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Seattle Access to Justice Symposium

Washington State again showed leadership in the civil right to counsel movement when, on February 19, nearly 200 persons attended a major symposium co-sponsored by the Seattle University School of Law's Korematsu Center for Law and Equality, University of Washington School of Law, and Gonzaga University School of Law. Under the theme of Civil Legal Representation and Access to Justice: Breaking Point or Opportunity for Change, the gathering featured several national experts, including members of the National Coalition for a Civil Right to Counsel, and local experts.

Washington state Chief Justice Barbara Madsen's keynote speech recalled, with regret and disappointment, the travesty of justice that was the focus of her dissenting opinion from the Washington Supreme Court's decision in Marriage of King, holding that the liberty interests at stake in private custody proceedings are not sufficiently weighty to give rise to a right to counsel under the federal or state constitutions. Panels addressed laying the foundation for a right to counsel, addressing the unmet need, representing special populations, and learning from both indigent defense systems and legal aid systems in other countries. A retired Washington state legislator offered a frank reality check, research demonstrating the beneficial outcomes of representation was presented, and the president of the state bar moderated a lively discussion on overcoming barriers. A half-day work session followed, with invited equal justice leaders focused on how the effort to achieve a civil right to counsel in Washington can move forward most effectively. Materials from the conference are available.


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Right to Counsel in the Foreclosure Context

Might homeowners facing foreclosure have a right to appointed counsel? How would such a right be claimed under the framework of Lassiter v. Department of Social Services? John Pollock, ABA Section on Litigation Civil Right to Counsel Fellow at the Public Justice Center analyzes these questions in companion articles in the Jan.-Feb. issue of CLEARINGHOUSE REVIEW: Lassiter Notwithstanding: The Right to Counsel in Foreclosure Actions and, on the challenges of arguing for the right in nonjudicial foreclosure states, Going Public: The State Action Requirement of Due Process in Foreclosure Litigation. Both articles are available on the NCCRC website at www.civilrighttocounsel.org/resources/articles/.
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Missouri Bar Journal Explores Civil Right to Counsel Debate

The Winter 2010 issue of Precedent, the Missouri State Bar magazine, features the right to counsel in civil cases. In one article, "A Civil Right to Counsel: Inevitable or Unrealistic?", Precedent editor Gary Toohey explores the arguments made by right to counsel proponents and opponents. Toohey discusses the original intent of the drafters of the Constitution, explores the history of the right to counsel in the U.S. and other countries, and delves into the new California pilot project. He also cites comments by Missouri legal services providers that sufficient funding must accompany expansions of the right to counsel, while former Missouri Bar President Thomas Burke urges Missouri advocates to continue their work on civil Gideon, notwithstanding current financial difficulties. A second article, "A Civil Gideon? Let the Debate Begin," authored by Burke, leads off by quoting Barack Obama, John F. Kennedy, and Abraham Lincoln in support of taking on difficult tasks despite the challenges involved. Despite the bar's best efforts (e.g., mandatory pro bono projects and volunteer lawyer programs), only a small fraction of people needing assistance actually receive such assistance, and Burke concludes that it is never too early to begin the conversation about the right to counsel and how it might actually be achieved.

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NCCRC Hosts Panels at 2009 NLADA Conference

NCCRC was present in force at the 2009 National Legal Aid and Defender Association annual conference last November in Denver, hosting two different panels addressing the right to counsel in civil cases. "The Power of Pilots: Expanding the Right to Counsel By Example" examined the design and implementation of pilots in Massachusetts and California. It featured two NCCRC participants: former California Court of Appeal Justice Earl Johnson (Ret.), who spoke about the California pilots that will begin in 2011, and Gerry Singsen, who discussed the Massachusetts housing pilots already in progress. The panelists explained the pilots' genesis, basic parameters, design and evaluation process, and funding. They also discussed the alliances, including some that were unlikely, that facilitated the pilots' success.

The second panel was "Rowing Upstream: Passing Laws and Finding Resources for the Right to Counsel Despite Tough Economic Times"; it explored how some states have recently managed to enact laws that either expanded the right to counsel in civil cases or improved the quality of appointed counsel, even while experiencing severe economic strain. The panel featured NCCRC participants Laura Abel and Gerry Singsen, as well as Amy Schwartz (Empire Justice Center), Bill Leahy (Committee for Public Counsel Services in Massachusetts), and Peter Bovingdon (Montana Legal Services Association). John Pollock, the ABA Section on Litigation Civil Right to Counsel Fellow at the Public Justice Center, moderated both panels.

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UNC Conference Features NCCRC Participants

On Oct. 30, 2009, the University of North Carolina Center on Poverty, Work and Opportunity hosted an access to justice conference focused on the right to counsel in civil cases in North Carolina. The conference featured comments from North Carolina Supreme Court Chief Justice Sarah Parker and Associate Justices Patricia Timmons-Goodson, Mark Martin, and Robin Hudson, as well as Legal Aid of North Carolina Executive Director George Hausen, past and current presidents of the North Carolina Bar Association, the president of the North Carolina State Bar, and Representative Rick Glazier of the North Carolina General Assembly, among others. Justice Timmons-Goodson noted in her presentation that the U.S. is one of the only Western democracies that does not provide a right to counsel in civil cases, while other speakers referenced the finding in the North Carolina Access to Justice Commission's 2008 report that 80 percent of legal needs go unmet. NCCRC participants Laura Abel and John Pollock served as panelists and laid out the current status of the right to counsel across the country, while NCCRC Facilitator Deb Gardner spoke about potential approaches to expanding the right. The conference came on the heels of the state Access to Justice Commission's decision to form a committee to report on efforts to secure a right to counsel in civil cases and propose possible approaches. Links to more about this and other conferences are on the national coalition's website.
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The National Coalition for a Civil Right to Counsel is an association of individuals and organizations committed to ensuring meaningful access to the courts for all. Our mission is to encourage, support and coordinate advocacy to expand recognition and implementation of a right to counsel in civil cases. For more information, click on title above to visit http://civilrighttocounsel.org/.

Making legal aid more accessible and affordable

By Gillian Hadfield
Friday, March 12, 2010

The United States stands largely alone in advanced-market democracies in drastically restricting where and how people can get help with their legal problems. In all states, under rules created by bar associations and state supreme courts, only people with law degrees and who are admitted to the state bar can provide legal advice and services of any kind.

In England, Australia and the Netherlands, by contrast, a wide variety of professionals and experts can provide legal assistance.

Nonprofit organizations as well as for-profit firms can develop specialized expertise in particular areas of legal need -- housing, immigration, debt-management, child custody and so on. Often, studies show, specialized non-lawyer providers ultimately offer better service than the solo and small-firm practitioners who do someone's taxes one day and provide criminal defense the next.

In other countries, consumer and community organizations can provide legal services, as can unions and other workplace groups. Starting next year in England, so too can large companies such as Tesco, the European equivalent of Wal-Mart. There are online subscriber services giving legal advice on employment or consumer problems. The legal equivalent of TurboTax is probably just around the corner, if not already on British computer screens.


Meanwhile, in the United States, the bar is filing class-action lawsuits against fledgling online legal providers such as LegalZoom and shutting down alternative providers who threaten local lawyers' markets and offend lawyerly sensibilities. Many American judges and lawyers continue to insist that the only model for legal services is one-on-one advice with an attorney. No corporations, no venture-capital-backed entrepreneurs, no intelligent software to complete legal documents, no community groups or nonprofits. Free legal aid clinics hardly fill the gap: Only 1 percent of the 1 million lawyers in the United State do either legal aid or public defender work; student-staffed law clinics can operate only under the supervision of a licensed attorney. Pro-bono hours at best amount to about 2 percent of total legal effort.

There's nothing wrong with ensuring quality of service, but attacks on innovative providers in the United States go well beyond what can be justified in a world that looks so much to law to organize everyday life. They also go much further than other wise countries go.

My research suggests that Americans have a much higher rate of simply giving up in the face of legal difficulties, with effectively nowhere to turn if they cannot afford a lawyer who comes at a minimum price of $150 an hour. This means giving up on seeing their children or saving their homes or credit ratings or jobs. Unlike people in Britain, those facing legal problems in the United States can't turn to local volunteer organizations, their unions or consumer organizations. They can't buy what they need from entrepreneurs or the full-service stores like Wal-Mart that now package low-cost eye exams, insurance, banking and more with their diapers and detergents.

This may explain why in U.S. surveys 30 to 40 percent of Americans with an identifiable legal problem say they do nothing to resolve it, compared with just 5 percent in Britain. Yes, Britain spends far more public funds on ensuring access to justice -- $76 in legal aid per capita compared with $13 in the States (including charitable contributions). But the critical difference is the widespread and diverse availability of help in Britain and other advanced-market democracies for people with legal troubles -- not just criminal arrest but issues such as foreclosure, divorce, child custody, employment and bankruptcy. The United States urgently needs to expand capacity for non-lawyers to meet the legal needs of ordinary Americans in innovative and less costly ways.

Harvard Law professor Laurence Tribe was appointed recently to spearhead a much-needed Justice Department initiative to help expand legal access for the poor. Tribe has taught generations of lawyers about the rights enshrined in the Constitution. He now has an opportunity to accomplish a fundamental transformation in how effective legal rights, and obligations, are in practice in the law-thick daily lives of ordinary Americans. As more learn about the much different approach to regulation of legal markets and the wider array of legal resources available in other democracies, I hope that his newest students, the very lawyers and judges who are blocking the road to a different way of doing law, will become his allies in increasing access to justice.


The writer is a professor of law and economics at the University of Southern California and a visiting professor at Harvard Law School.



http://www.washingtonpost.com/wp-dyn/content/article/2010/03/11/AR2010031103654.html

House Impeaches Bribed Fed Judge

House Impeaches Bribed Fed Judge

Last Updated: Fri, 03/12/2010 - 3:56pm

A crooked Louisiana federal judge who took bribes from lawyers to pay off gambling debts has become the 15th in the nation’s history to be impeached by the House of Representatives for “high crimes and misdemeanors.”

Removing a federal judge from his or her lifetime position is a tough feat that requires overwhelming evidence of wrongdoing yet this case was a virtual slam dunk. For years U.S. District Judge G. Thomas Portreous took money and valuable gifts from attorneys with cases before him and he hid assets, filed for bankruptcy under a bogus name and defied a bankruptcy court’s order relating to credit.

His many transgressions were discovered during an FBI investigation of state judges in New Orleans’s Jefferson Parish, where Portreous served until Bill Clinton named him to the federal bench in 1994. During a lengthy criminal probe, Porteous offered incriminating information relating to the broad judicial misconduct investigation and he was subsequently suspended from hearing cases though he continues collecting his $174,000 annual salary.

In November Porteous sued the congressional task force that just impeached him in a desperate effort to block it from removing him, alleging that the committee illegally used testimony he gave under a promise of immunity to make a case for his ouster. Prosecutors agree not to use immunized testimony against defendants but the deal doesn't effect impeachment proceedings which are conducted by federal legislators.

In its unanimous decision to impeach Porteous this week the House approved four articles accusing the shady judge of taking money, meals and other expensive gifts from lawyers and a bail bond company and of making false statements in his personal bankruptcy filing. The House Judiciary Committee said that although much of the judge's "improper conduct" occurred when he was a state judge, he had an obligation to disclose his actions during his confirmation process in 1994 when Clinton nominated him as to the federal bench. The Judiciary Committee found that Porteous had engaged "in a pattern of conduct that is incompatible with the trust placed in him as a federal judge."

The matter will go to the Senate for a trial, which will be conducted by a 12-member committee that will recommend whether to remove Porteous from office. It would take a two-thirds Senate vote—67 senators voting to convict—to permanently remove Porteous from the bench. In an editorial, New Orleans’s largest newspaper says the sooner the Senate can conduct a trial to rid us of this crooked judge the better.

Only one federal judge has been stripped of his lifetime appointment in the last decade. That Texas judge, Samuel Kent (appointed to the bench by George H.W. Bush in 1990), is serving a three-year prison sentence for obstructing an investigation into charges that he sexually assaulted two female employees





http://www.judicialwatch.org/blog/2010/mar/house-impeaches-bribed-fed-judge

California First State to Enact a Civil Gideon Right;

Excerpt from article

In the midst of a deep recession, the passage of a "civil Gideon" bill was hailed as nothing short of extraordinary. AB 590 makes California the first state in the nation to establish a right to counsel for low-income litigants in life-changing civil proceedings. It also calls for the launch of at least one pilot program starting in July 2011, to be funded by a $10 increase in some court fees. As chairman of the Assembly's Judiciary Committee, Feuer (D-Los Angeles) authored the legislation. He received critical support from Baker, the committee's deputy chief counsel, who spent the past five years promoting the idea. Meanwhile, Wilson mobilized the state's legal aid societies. And McMorrow, aided by Manatt attorney Fred L. Main, lobbied hard behind the scenes to win the governor's support. "This is something that has been long, long advocated," UC Berkeley School of Law professor Jesse Choper observed, after Gov. Arnold Schwarzenegger signed the bill in October. "This will be greeted by people who are interested in the rights of economically deprived folks as an extraordinarily important step."


Click on title above to go to original article and read more good things law-related coming out of California;

http://www.callawyer.com/story.cfm?eid=908041

Last Ditch Effort to Get George a Lawyer - Trial Date End of April

All other avenues have failed to rally any legal support for him and his case against the Robbin' Roberts

Trial date was schedualed to commence Mach 1, but was posponed cause it would have interfered with the defendants plans to vacation in Cancoon for two weeks. The trial date was pushed back to March 15 but got a call today from the chief clerk who informed us that the defendants attorney was called out of town on a family energency and wont be back til the end of April,.....so, back to the waiting game I guess. Some good would come out of these delays IF ONLY that it buys us more time to convince a lawyer to take our merious case.

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Re: Jubic v. Jubic. et. al;
Supreme Court of the State of New York
County of Rensselaer
Case # 214005
Hon. Judge Christian Hummel, Jr.



Trial Date: March 15, 2010 9:30 am


Dear Sir or Madam;



I am writing in regards to my husband Georges' "partnership dispute" case.



Several years ago, based on his dying fathers wishes, certain "burned out" famil property (The Old Snuggery Inn, 19 Cross St., S. Troy, NY) was left to him and one other brother, "Robbing Robert," a defendant in the case. The brothers, being handymen and carpenters, took the property and converted it into a multi (5) unit apartment complex as was their fathers wish. The father wanted to make sure that both of them would always have income from the apartment rentals "for life." In 1988, at the time of the signing over of the deed, brother "Robbing Robert" bought a friend of his, a Robert McAllister, (the other defendant) and not a family member, into the partnership meeting with him, intending to make him a partner in the venture also. The father raised objections on the grounds that the partnership was supposed to be a family business. My husband and other family members also objected to inclusion of a stranger into the family business. However, "Robbing Robert" insisted that his friend McAllister (and partner in other ventures) be included in the plan, so McAllisters' name was added to the deed and he was made 1/3 partner.



In 1989, the three partners jointly got a loan at the bank for construction materials and work on converting the building into a 5 unit apartment complex was begun. The three partners worked elbow-to-elbow in the construction of same. Sometime in the early to mid 1990s construction was completed and the units were rented out. Robert Jubic was the self-professed bookkeeper and accountant and told my husband that he would "let him know" when money was being made through the venture, adding that " it will be another 20 years before the place makes any money." Thus, George waited and worked on maintaining the apartments all the while waiting for the time when his brother Robert would inform him that profits were (at last) being realized from the venture.



Fast forward to 1999 when I find out through ex-wives and other family members that the partnership loans have been fully repaid and that the partnership was indeed making money and in fact, had been making money for years - (grossing over $300,000 as of 2004 accounting) a search at the county clerks office for relevant documents verified that all (known) loans were paid and that indeed, profits were being realized but wrongfully withheld from my husband.



In 2001 my husband hired a lawyer to file suit against the thieving partners and a lawsuit was commenced in the Supreme Court of the State of New York, County of Rensselaer. The case was in the middle of the discovery process when my husbands lawyer turned up missing. A call to the state bar informed us that he had been permanently disbarred from practicing law (for reasons unrelated to this case)



My husband, suffering financial hardship to the point where he had to file a Chap 13 BK to save his home, is put into the untenable position of having to litigate his case without the assistance of counsel. My husband has a very low IQ score, has cognitive deficiencies, has no backround or knowledge of the law or trial proceedure and is not qualified to represent himself at trial. He did obtain verification of his inability to represent himself via letters provided to him by his physician as well as two mental health councelors. He presented these documents to the court and asked for assignment of counsel on these grounds, but same was denied, the judge stating that he did not believe he had the authority to assign counsel in a civil case



I am aware that there is a movement underway for a right to counsel in certain civil cases were other "vital interests" besides liberty are at stake. It is my argument that remaining free from poverty is a vital interest that would qualify him for assignment of councel in this case since his whole financial future is bound up in it. Not only is he being robbed of significant monies owned him but he is also being robbed of his inheritance too! If a full and fair hearing cant be had by him through the courts, he will lose not only his one and only home and all of the "past profits" owed him, but he will also be deprived of all of the LOST future income he would have enjoyed from the partnership if not for the thievery of the partners. If not for a satisfactory resolution of his case, my husband stands to become a ward of the state in his old age, (he is 62 now) and me right along with him. Our whole financial future depends on the fair litigation of this case, same of which will be impossible to do with out the aid of experienced councel. It is a nightmare situation for us, as we are hoping you can imagine. What are we to do?



I am hoping that you or someone you know might find a way to help my husband with this "Civil Gideon" case. We MAY be able to come up with a small retainer and/or can work out a payment plan and have the account paid in full by mid October 2010 as hubby draws on pension then and will receive $17,000.



Jury selection is set to begin on March 15, 2010. There is still time to act! Hubby is chewing his nails, grinding teeth in his sleep and cant eat at the thought of having to self-litigate his case.



Please feel free to contact us at the telephone number below if you need more information.



Thanking you in advance for any consideration you may give this matter.







Christine & George J. Jubic

Capital District, NY



(518) 753-7791

Equal Justice for All - What a Laff!

Click on title above for pdf report

Amazing Grace: A NY Educated Social-Justice Lawyer

Nancy Grace

Nancy Grace hosts cable news' only legal analysis program, Nancy Grace, which is the highest-rated show on HLN. She is based in CNN's New York bureau.


One of television's most respected legal analysts, Grace came to HLN from Court TV, where she hosted the live daily trial coverage program, Closing Arguments, until 2007. She also has appeared as a legal commentator on CNN's Larry King Live, ABC's The View, The Oprah Winfrey Show, Dr. Phil, and numerous other cable and network programs.


Nancy Grace joined Court TV from the Atlanta Fulton County District Attorney's Office where she served for a decade as special prosecutor of felony cases involving serial murder, rape, child molestation and arson.


Grace gave up career plans to become an English professor after the murder of her fiancé. She enrolled in law school, eventually becoming a prosecutor and an outspoken victims' rights advocate. Grace helped staff the hotline at an Atlanta battered women’s center for 10 years.


She has written articles for the American Bar Association Journal and other law reviews. She was also a litigation instructor at Georgia State University's School of Law and a business law instructor at the university's school of business. Previously, Grace clerked with a federal court judge and practiced antitrust and consumer protection law with the Federal Trade Commission.


Grace is the recipient of several American Women in Radio & Television Gracie Awards for her Nancy Grace Investigates prime-time report on Court TV and for "Individual Achievement for Best Program Host." She has also been recognized for her ongoing support and advocacy of victims' rights by various groups, including the Carole Sund/Carrington Foundation, Crime Victims United of California and The Retreat.


Grace was a law review graduate of Mercer Law School and received her degree in constitutional and criminal law from New York University.


Her first book, Objection!, was published by Hyperion in April 2005 and was an instant New York Times bestseller. Grace’s first foray into fiction, The Eleventh Victim, was published by Hyperion in August 2009, and it too instantly reached the New York Times best-seller list, making its debut at #6.







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CNN Programs - Anchors/Reporters - Nancy Grace

Renss. Co. Legal Services for the Aged

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Poor to Pay for Public Defender Fees

I-Team: Accused Assessed Fees to Pay for Public Defense
Posted: Feb 16, 2010 8:37 PM EST Updated: Feb 17, 2010 10:34 AM EST

Video Gallery

I-Team: Accused Assessed Fees to Pay for Public Defense
3:47




Damen Bentley is about to learn the value of competent criminal defense.

Convicted for a third time on charges related to domestic violence, Bentley explains to District Court Judge Jennifer Togliatti his failure to actually stab his wife means he faces probation for nothing.

"Every once in a while I hear a defendant make a statement and it makes it harder to follow the deal, every once in a while," she said.

Bentley's perspective almost lands him in prison. Almost, thanks to his attorney.

"He should've stopped after, ‘I'm sorry for the victim and I apologize to the state,'" said Togliatti.

After a few precarious moments, and a few persuasive words, Togliatti approves probation and orders Bentley to pay $250 toward the cost of his defense.

"I think that there's zero downside for a defendant to know that they need to be accountable when they commit a crime and be required to pay some portion of their representation," said Togliatti.

At their discretion, judges may now impose a fee, anywhere from $100 to $750 to offset the cost of the public defender and other court-appointed attorneys. The service used to be free.

"This is truly a trial and error process," said Clark County public defender Phil Kohn. "The problem is we defend poor people, and that certainly is not going to be the answer to our problem, is having poor people pay for public defender offices."

A recent study found the Clark County Public Defender's Office is 90 attorneys short of national caseload standards. With an average of 17,000 clients a year, even a minimum contribution from some of them could add up to hundreds of thousands of dollars.

"This is my big concern; someone who's in custody and then they end up going to prison. So if we're going to charge them money, so when they get out of prison they have this debt they have to pay. They're just going to end up back in prison," said Kohn.

Unlike restitution for victims, indigent defense fees are a civil assessment, meaning a client can't go to jail for failing to pay. Instead, the court compliance office will act like a collection's agent.

Togliatti argues, like the gambler convicted of failing to pay his casino markers, many who come before her in court can afford to contribute something, even if they can't pay a private attorney.

"Clearly they're getting more than they're being assessed in a value of representation," she said.

Certainly Bentley did when his court-appointed attorney saved the third-time convict from himself.

The court is still working out the details of exactly how the collection process will work. Washoe County has a similar program. According to the public defender there, between 2008 and 2009 it collected $200,000 of the $800,000 in assessed fees.




http://www.lasvegasnow.com/Global/story.asp?S=11995304

Sen. Advocates for Appointment of Inexperienced Judges

AMERICAN BAR ASSOCIATION: Reid criticizes lawyers group

Democratic leader praises judicial nominee's 'real world' qualifications

By STEVE TETREAULT
STEPHENS WASHINGTON BUREAU


Gloria Navarro
Las Vegas attorney nominated for federal judge


WASHINGTON -- Sen. Harry Reid, D-Nev., criticized the American Bar Association on Thursday, saying it should "get a new life" in how it rates prospective federal judges, after one of his choices got a mixed review.

In remarks to the Senate Judiciary Committee, Reid said the bar association's ratings board puts too much weight on whether judicial nominees have prior bench experience and overlooks "real world" qualifications.


Reid expanded his criticism to include the Supreme Court, whose makeup, he said, consists of "people who have never seen the outside world."

"I have asked President (Barack) Obama, 'Let's get somebody on the court that has not been a judge.' They need to do more than thinking of themselves as these people who walk around in these robes in these fancy chambers."

Reid was set off by the ABA's rating of Las Vegas attorney Gloria Navarro, who also appeared before the Senate committee as his choice and Obama's nominee to become a U.S. district judge in Nevada.

According to the association's 15-member Standing Committee on the Federal Judiciary, a "substantial majority," consisting of 10 to 13 members, rated Navarro "qualified," while a minority rated her "not qualified."

The bar shares its ratings in an advisory capacity with the White House and the Senate, which votes on the nominees.

The committee considers a nominee's "professional competence, integrity and judicial temperament." It rates each nominee as "well qualified," "qualified," or "not qualified."

Navarro, 42, has been in private practice, has been a public defender and currently is chief deputy district attorney in the civil division of the Clark County district attorney's office.

Several attorneys and academics who examined Navarro's resume speculated that her lack of experience as a judge may have been the reason some ABA reviewers rated her "not qualified" for the federal bench.

Reid told the Judiciary Committee it was "upsetting to me" that Navarro "is not rated as high as she should be rated."

"If they base their rating on people having judicial experience, that would mean that, according to them, every person that seeks a seat on the bench has to have judicial experience. Maybe a municipal court judge, maybe a justice of the peace.

"I just cannot accept that," Reid said, touting Navarro as an attorney who has pursued political corruption cases, defended a person who had been convicted of murder, and has had to pursue clients to pay their bills.

"I think the ABA should get a new life and start looking at people for how they are qualified and not whether they have judicial experience," Reid said.

"This woman will be a terrific judge," he said of Navarro. "She has had experience in the real world of government, the real world of law."

It appeared to be the first time Reid has expressed unhappiness publicly with the ABA rating system. On at least two other occasions he referenced them in cases where they backed him up on specific nominees.

In a May 2006 speech opposing Brett Kavanaugh for the D.C. Circuit Court of Appeals, Reid noted the ABA had lowered its rating on the nominee. In a May 2000 interview with the Review-Journal, Reid cited the ABA as approving his choice of then U.S. Magistrate Roger Hunt for a federal judgeship.

Reid believes "the ABA rating can be helpful but it isn't the final word," his spokesman Jon Summers said Thursday. "You have to look at why the ABA gave the rating and consider additional factors such as the recommendations of the people they have worked with."

Navarro would be the first Hispanic woman to serve as a federal judge in Nevada. She would replace Brian Sandoval, who resigned the lifetime appointment last year and is running for governor.

A spokeswoman for the Judiciary Committee said senators have a week to ask follow-up questions in writing. After that, the committee will schedule a confirmation vote.

The Nevadan appeared Thursday before the committee alongside five other nominees for judgeships in Indiana, California and Missouri.

Navarro had waited out the snowstorm that crippled Capitol Hill this week, as the confirmation meeting was postponed a day because of the weather.

She appeared alone, explaining her husband, Clark County chief deputy district attorney Brian Rutledge, their three sons, her mother and several friends were unable to make it.

"We'll send them a DVD," joked Sen. Amy Klobuchar, D-Minn.

During her testimony, Navarro appeared ready for a question about her experience, which came from Klobuchar.

Navarro said she has practiced both in federal and state courts, handled both civil and criminal cases, has represented plaintiffs and defendants and has been both in private practice and as a public servant.

"The experiences have given me the opportunity to appear before many different judges with many different styles," she said. "I have also had the opportunity to become familiar with many different rules and procedures in different courts. Having that broad range of experience definitely will build a solid foundation for a successful judicial career."

Contact Stephens Washington Bureau Chief Steve Tetreault at stetreault@stephensmedia.com or 202-783-1760.



http://www.lvrj.com/news/breaking_news/reid-blasts-bar-association-over-judicial-ratings-84133752.html

DA Boycotts Judge for Adverse Ruling

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http://www.theagitator.com/2010/02/09/santa-clara-da-boycotts-judge-who-ruled-against-her/

Legal Aid Ny Fights Cuts to Civil Law Service to Poor

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Goodbye Democracy / Hello Corporatisim

Posted on Public Citizen

The U.S. Supreme Court ruled that corporations are entitled to spend unlimited funds in our elections, rolling back a century of modest limits. The First Amendment was never intended to protect corporations.

This cannot stand. Join our campaign to protest this decision. Protect our democracy! Two things that can be done now:

1) Fair Elections Now Act: Give congressional candidates a public financing alternative to elections bankrolled by corporations. Also fix the presidential public financing system.
2) Shareholder Accountability: Give shareholders a say over corporate spending in elections.

But ultimately, we must pass a constitutional amendment to ensure corporate money does not overwhelm our democracy and clarify that the First Amendment is for people -- not corporations. Add your name to the petition to Congress today!


FREE SPEECH FOR PEOPLE AMENDMENT PETITION:


WHEREAS, the First Amendment to the United States Constitution was designed to protect the free speech rights of people, not corporations;

WHEREAS, for the past three decades, a divided United States Supreme Court has transformed the First Amendment into a powerful tool for corporations seeking to evade and invalidate democratically-enacted reforms;

WHEREAS, the United States Supreme Court’s ruling in Citizens United v. FEC overturned longstanding precedent prohibiting corporations from spending their general treasury funds in our elections;

WHEREAS, this corporate takeover of the First Amendment has reached its extreme conclusion in the United States Supreme Court’s recent ruling in Citizens United v. FEC;

WHEREAS, the United States Supreme Court’s ruling in Citizens United v. FEC will now unleash a torrent of corporate money in our political process unmatched by any campaign expenditure totals in United States history;

WHEREAS, the United States Supreme Court’s ruling in Citizens United v. FEC presents a serious and direct threat to our democracy;

WHEREAS, the people of the United States have previously used the constitutional amendment process to correct those egregiously wrong decisions of the United States Supreme Court that go to the heart of our democracy and self-government;

Now hereby be it resolved that we the undersigned voters of the United States call upon the United States Congress to pass and send to the states for ratification a constitutional amendment to restore the First Amendment and fair elections to the people.





Click on title above to see petition


When you submit your name and email, Public Citizen will add you to our contact list so that we can communicate with you about corporate influence in elections and other important issues. You can remove yourself from our list at any time.

A Qualified Civil Gideon

Loffredo and Friedman on Qualified Civil Gideon
Stephen Loffredo (CUNY) and Don Friedman (Empire Justice Center at the William Randolph Hearst Public Advocacy Center at Touro) recently published Gideon Meets Goldberg: The Case for a Qualified Right to Counsel in Welfare Hearings as part of the Touro Law Review issue on the right to counsel in civil cases, "Civil Gideon," in New York. This is a fresh perspective on a critically important issue; I highly recommend it.

Loffredo and Friedman's piece joins an increasing academic and practice-oriented literature and a coordinate body of litigation that sometimes goes under the name "Civil Gideon" and sometimes under "civil right to counsel." In truth, "Civil Gideon" doesn't quite capture the movement--this is really about more than simply applying the right to counsel established in Gideon v. Wainwright to civil litigants. "Civil right to counsel" is a broader, better name to capture a movement that seeks counsel for poor litigants in an orchestrated effort in state legislatures, administrative agencies, bar associations, law firms, legal services offices, and even law schools, as well the courts.

Insofar as the movement seeks to establish a constitutional right to counsel through the courts, however, it continually runs up against Lassiter v. Dep't of Social Services. That case held that a poor parent didn't have a categorical right to counsel in a state-initiated proceeding to terminate parental rights under the Due Process Clause. The Court weighed the balancing factors in Mathews v. Eldridge against a newly created presumption against counsel in civil cases. Given the importance of parental rights (Mathewsfactor 1.) and the high probability of an erroneous termination of parental rights without counsel (Mathews factor 2.), a parental rights case seemed the best type of case through which to press a civil right to counsel under a procedural due process theory. The Court's rejection in Lassiter therefore poses a significant barrier for poor litigants seeking counsel in other kinds of claims (like welfare) and, more generally, a significant barrier for the civil right to counsel movement.

Loffredo and Friedman argue that Lassiter and Goldberg v. Kelly representan underenforced constitutional norm for the right to counsel. That is: The Court's refusal to declare a due process right to counsel "stems principally from institutional and separation of powers concerns pertaining to the limited role and capacity of the judiciary," and that it therefore "ought not be regarded as [a] definitive statement[] of the full meaning and scope of constitutional due process."

Loffredo and Friedman argue that legislatures are not so constrained. Their move, then, is to turn their argument to the legislature. They argue that the state legislature, as a matter of procedural due process, should provide counsel to the poor in particular welfare cases where the Mathews factors align most obviously in favor of counsel. These include cases where "[a]n impoverished family threatened with termination or reduction of subsistence benefits faces the severest sorts of injury and privation," where counsel is particularly necessary for a poor litigant to protect his or her rights, and where the government's interest in saving money aligns with the poor litigant's interest in resolving the matter quickly and correctly.

By presenting this constitutional argument to the legislature (and not the courts) under an underenforced constitutional norm theory, Loffredo and Friedman bypass the Lassiter presumption and Goldberg's modesty, the most significant barriers to claims for a constitutional right to counsel in the courts. Loffredo and Friedman:

Lassiter recognized that certain alignments of the Mathews factors in the parental rights setting would tip the scales decisively enough to overcome the Court's presumption against a right to counsel. As demonstrative above, at least some welfare cases present a comparably decisive alignment of Mathews factors that would warrant a judicially ordered assignment of counsel. But regardless of whether the courts would enforce a due process right to representation in the welfare context, the legislature bears a broader, independent obligation to ensure that individuals receive the full protection of that constitutional right, undiminished by limiting constructions that the judiciary, for separation of powers or related institutional reasons, may adopt as a matter of prudential self-restraint. Even if one regards the full measure of the due process norm as extending no further than the Mathewsanalysis, shorn of Lassiter's presumption, that analysis makes plain that the absence of counsel from particular welfare hearings denies due process to many thousands of the state's poorest and most vulnerable families. The legislature is therefore duty-bound to act.

Loffredo and Friedman conclude with specific recommendations for identifying cases that meet their standard and qualify for a right to counsel. (They also include as an Appendix two transcripts of pro se hearings that are quite convincing on the problems litigants face without counsel.)

Moral, economic, and policy arguments to state legislatures haven't always been successful, and that's why the civil right to counsel movement has so often turned to the courts. But Loffredo and Friedman offer a new constitutional argument. It's appealing on moral, economic, and policy grounds; but, they argue, it's compelled on constitutional grounds.

This is an important contribution to this area. I highly recommend it.

SDS

Lawyers Against Civil Gideon

Click on title above to see

http://www.aei.org/outlook/28441

Binion Killer Gets Parole in Nevada

Rick Tabish gets parole from prison in Binion case

BY CARRI GEER THEVENOT
LAS VEGAS REVIEW-JOURNAL



Rick Tabish pictured during an interview at the High Desert Prison in 2003.
Photo by Jeff Scheid.

Rick Tabish, who gained notoriety as a suspect in the 1998 death of former Las Vegas casino executive Ted Binion, (Binions Downtown Horseshoe Club) could be released from prison as early as April 2.

The Nevada Board of Parole Commissioners announced today that Tabish, 44, has been granted parole. His younger brother described the news as “pretty wonderful.”

“The family’s extremely happy to have him home,” Greg Tabish said.



Rick Tabish and his lover, Sandy Murphy, were convicted and later acquitted of murdering Binion. Rick Tabish has been serving time for burglary and grand larceny convictions that stemmed from the theft of Binion’s $7 million silver stash. Murphy already has completed her prison sentence for her role in the theft and has been living in California.

David Smith, a parole hearing examiner, said the Nevada parole board granted Rick Tabish’s release to Montana, subject to the approval of authorities in that state.

“They will investigate his release plans, and if he qualifies, then on or after April 2 he can be released to Montana for supervision there,” Smith said.

Greg Tabish, 40, and his parents, Frank and Lani, live in Missoula, Mont. Greg Tabish said “everything’s up in the air,” but his brother probably will live with their parents.

“It’s great to get great news for a change,” Greg Tabish said.

He attended his brother’s latest parole hearing on Jan. 13 — the fifth for Rick Tabish. Greg Tabish said his parents usually attend the hearings but could not make it to the last one.

The hearing was conducted via videoconference from the parole board’s Carson City office to Ely State Prison, where Rick Tabish is incarcerated. Smith said Rick Tabish has been imprisoned in Nevada since October 2000.

According to the order granting parole, the board gave the following three reasons for deciding to release Rick Tabish:

— "The parole guideline recommends that parole be granted, and there are no serious reasons to deviate from the guideline recommendation.”

— "There is community and/or family support.”

— "The inmate has stable release plans.”

Smith said Rick Tabish received consecutive sentences of one to five years for his burglary and grand larceny convictions.

Murphy was living with Binion, her boyfriend, in September 1998 when the gaming heir was found dead in his Las Vegas home. Authorities initially suspected that Binion had succumbed to a drug overdose.

But two days after Binion died, authorities caught Rick Tabish, who was Murphy’s secret lover, and two other men digging up Binion’s silver fortune at an underground vault in Pahrump.

Authorities charged Murphy and Rick Tabish with murder, alleging the pair suffocated Binion. They were convicted in 2000, but the Nevada Supreme Court overturned the convictions in 2003. A second jury acquitted them of the murder charges in 2004 but upheld the charges related to the silver theft. Rick Tabish’s wife, Mary Jo, divorced him after he was convicted of murder in the high-profile case. The couple had two young children at the time.

Contact reporter Carri Geer Thevenot at cgeer@reviewjournal.com or 702-384-8710. �



http://www.lvrj.com/news/breaking_news/Rick-Tabish-granted-parole-from-prison-82843777.html

Nat'l Consumers Law Center

Nat'l Consumer Law Center;



Litigation Project Guidelines
NCLC will screen matters referred by counsel on a case-by-case basis. Factors that can influence case selection may include the importance of the legal issue to lower income or elderly consumers; the special expertise of NCLC as it relates to the legal issue; the relief available; the possibility that a successful outcome will lead to a greater availability of outside counsel in future cases; the availability of staff resources; the potential impact on industry standards, patterns of practice, systemic issues, and applicable legal standards and principles; the novelty of the issues presented; whether the private bar already is providing adequate representation with regards to the issues presented; the likelihood of success on the merits; the availability of qualified co-counsel; the possibility of conflicts of interest; and the cost of the litigation.

In general, the income of all clients represented by NCLC must not exceed 200% of the federal poverty level or meet the eligibility standards for the publicly funded provision of civil legal services. Alternatively, NCLC also may represent anyone who is sixty (60) years of age or older. NCLC has a special interest in the representation of non-English speaking and/or undocumented clients as well as in the support of victims of domestic violence. NCLC does not consider the ability of the client to pay attorneys fees in case selection and will not require its clients to pay attorneys fees from their own income or assets other than from an award in the cases in which they receive representation from NCLC.

Client Eligibility Guidelines for NCLC Representation
This policy is written for the purpose of explaining the client eligibility guidelines of the National Consumer Law Center (“NCLC”).

I. Scope
These guidelines are applicable to determine the eligibility of clients requesting legal assistance through NCLC on and after March 1, 2008. The guidelines may be reviewed and revised prospectively from time to time as it becomes necessary and appropriate.

II. Definitions
“Income” means actual current annual total cash receipts before taxes of all persons who are resident members of, and contribute to, the support of the family unit. However, income of other resident members of a family unit shall only be counted to the extent of that resident’s actual cash contribution, unless the individual applicant has direct power and authority over and the right to the income of said other resident, or said other resident has the legal obligation to provide support for the individual requesting assistance.

“Liquid assets” are those which can readily and promptly be converted to cash in the possession of the individual seeking legal assistance prior to the time that individual needs legal assistance. Net liquid assets, after subtracting all expenses of conversion, including applicable taxes, are those to be considered.

“Maximum income level” shall be two-hundred percent (200%) of the most current official Federal Poverty Income Guidelines (“FPIG”). (See Schedule A, attached hereto.)

“Nonliquid assets” are all assets other than liquid assets.

“Total cash receipts” include money wages and salaries before any deduction, but do not include food or rent in lieu of wages; income from self-employment after deductions for business or farm expenses; regular payments from public assistance, Social Security, unemployment and worker’s compensation; strike benefits from union funds; veterans benefits; training stipends; alimony, child support from an absent family member or someone not living in the household; public or private employee pensions, and regular insurance or annuity payments; and income from dividends, interests, rents, royalties or from estates and trusts. They do not include money withdrawn from a bank, tax refunds, gifts, compensation and/or one-time insurance payments for injuries sustained, and non-cash benefits.

III. Eligibility Determination
A. Individuals

A person may be determined eligible for assistance so long as he/she meets the guidelines set forth below. However, NCLC shall not be obligated to provide legal assistance to a person who meets these guidelines if NCLC determines that representation is inappropriate for other valid reasons.

1. Income

A person may be deemed eligible if his/her income does not exceed the maximum income level; provided, however, NCLC may consider other relevant factors, which are set forth below, before determining whether a person is eligible for legal assistance:

(i) Current income prospects, taking into account seasonal variations in income;

(ii) Medical expenses;

(iii) Fixed debts and obligations, including unpaid Federal, State or Local taxes from prior years;

(iv) Child care, transportation, and other expenses necessary for employment;

(v) Expenses associated with age or physical infirmity of resident family members;

(vi) The existence of assets, both liquid and nonliquid, which are available to the applicant (excluding equity in an individual’s principal place of residence, an individual’s first car, personal and household effects, trusts from household funds for education and medical expenses, the value of farmland essential to employment or self-employment, work-related equipment essential to employment or self-employment, assets excluded under the Food Stamps, AFDC and SSI programs, and any other property which is exempt from seizure under applicable state or federal law); and

(vii) Other significant factors related to financial inability to afford legal assistance, which may include evidence of a prior administrative or judicial determination that the person’s present lack of income results from refusal or unwillingness, without good cause, to seek or accept suitable employment.

2. Age

A person may be determined eligible for assistance without consideration of the maximum income level if he or she is sixty (60) years of age or older.

B. Groups

NCLC may provide legal assistance to a group, corporation or association if the group, corporation or association is primarily composed of persons eligible for legal assistance under these guidelines and lacks, and has no practical means of obtaining, funds to retain private counsel. Alternatively, NCLC may provide legal assistance to a group, corporation or association if the consumer issues presented by the matter are important to, or will have an impact upon, persons otherwise eligible for legal assistance under these guidelines.

C. Classes

NCLC may, as appropriate, bring a case as a class action. It often will be impossible to determine or require that every member of the class be individually eligible for representation pursuant to the guidelines set forth above. Therefore, NCLC may proceed with co-counsel as long as at least one putative class representative meets the criteria of said guidelines.

IV. Procedure For Determining Eligibility
Every case file for matters accepted by NCLC for representation shall include a written statement indicating that it has been verified that the client is eligible for assistance under these guidelines. The statement may be prepared by NCLC staff, the client or co-counsel representing the client. Information furnished to NCLC by a person to establish financial eligibility shall not be disclosed to any person who is not employed by NCLC in a manner that permits identification of the client, without the express written consent of the client.

V. Retainer Agreement
NCLC staff shall execute a written retainer agreement with each client who receives legal services from the Center. If possible, the retainer agreement shall be executed when representation commences. If it is not possible to execute a written retainer agreement at the time representation commences because of an emergency situation, the retainer agreement shall be executed as soon thereafter as is practicable. The retainer agreement shall clearly identify the relationship between the client and the recipient, the matter in which representation is sought, the nature of the legal services to be provided, and the rights and responsibilities of the client and the attorney. The agreement shall be retained as part of the client file.

A retainer agreement is not required when the only service to be provided is brief advice and consultation.

VI. Change in circumstances
If an eligible client becomes ineligible through a change in the client’s circumstances, NCLC may consider, consistent with the professional responsibilities of the attorney(s) representing the client, discontinuing its provision of legal services to the client.

Effective February 19, 2009

SCHEDULE A
NCLC CLIENT INCOME ELIGIBILITY GUIDELINES
200% OF OFFICIAL POVERTY GUIDELINES*

Size of Family Unit
Yearly
Monthly
Weekly

1
$21,660
$1805
$417

2
$29,140
$2428
$560

3
$36,620
$3052
$704

4
$44,400
$3675
$848

5
$51,580
$4298
$992

6
$59,060
$4922
$1136

7
$66,540
$5545
$1280

8
$74,020
$6168
$1424





For family units with more than 8 members, add $7480/year, $623/month, or $144/week for each additional person.

*For the 48 Contiguous States and the District of Columbia. Separate Guidelines are applicable in Alaska and Hawaii.

http://www.nclc.org/issues/cocounseling/guidelines.shtml

Top Washington Co. Defense Lawyer Forges Judges Signature -

click on title above for whole story

Mn Ct Rules Against Gov in Seperation of Powers Case

What lawyer was it said that they thought these type of cases werent argued anymore?That is pretty much like saying the U.S. Constitution isnt valid anymore. When the laws are on "our side" we have to fight to get those laws enforced, or they will be lost. Another of my dear ole moms favorite sayings, "Use it or you lose it." I guess this can be said for our rights also.

Pawlenty will appeal judge's ruling on unallotment

Judge Kathleen Gearin "has inserted herself into a political dispute," Pawlenty said.

By BAIRD HELGESON, Star Tribune

Last update: December 31, 2009 - 1:12 PM

Saying a judge overreached and misinterpreted the law, Gov. Tim Pawlenty said Thursday he will appeal a ruling that challenged his unilateral budget cuts imposed this summer.
"The judge has inserted herself into a political dispute," Pawlenty said at a news conference.

"That degree of involvement by the court is concerning, to say the least," he said. "We believe the judge misapplied and misinterpreted the statute in significant ways."

It's was Pawlenty's first detailed response to a judge's ruling Wednesday that said the governor the "trod upon the constitutional power of the Legislature" when he unilaterally cut $2.7 billion from the budget last summer using a procedure called unallotment.

Ramsey County District Judge Kathleen Gearin said that unallotment is constitutional but that Pawlenty misused it by making unilateral cuts after the legislature had adjourned.

"If we can't use unallotment now, I don't know when we could," Pawlenty said, noting that state is in the worst financial crisis since World War II. "I believe she misinterpreted that."

Since the appeal process could be lengthy, the Republican governor said he will work with DFL lawmakers to resolve the immediate financial dilemma when the Legislature convenes Feb. 4.

Most of the cut doesn't kick in until the 2011 fiscal year, leaving time for the two sides the reach an agreement, Pawlenty said.

But the governor raised the possibility of more unilateral cuts if no agreement can be reached, saying he might use the newly projected $1.2 billion deficit as justification.

In the ruling, Gearin said: "The authority of the governor to unallot is an authority intended to save the state in times of a previously unforeseen budget crisis. It is not meant to be used as a weapon by the executive branch to break a stalemate in budget negotiations with the Legislature or to rewrite the appropriations bill."

The judge issued a temporary restraining order reinstating money for a small nutrition program for the poor that Pawlenty cut from the budget. Several people in the program filed a lawsuit and wanted the judge to restore the money while their case proceeds.

"We believe Judge Gearin's opinion is well reasoned and correct," said Galen Robinson, an attorney for the people who filed suit. "If there is an appeal, we assume the decision will be upheld."

While Gearin's ruling deals only with the food program, the decision opens the door for other agencies or groups to file suit to get their money restored, potentially unraveling at least part of the governor's emergency cuts.


http://www.startribune.com/politics/state/80427142.html?elr=KArksUUUU

DOJ Sued over Internet Sluthing Methods

DoJ sued for sleuthing practices on Facebook, TwitterDecember 5, 2009 — 9:28pm ET By Judi Hasson

The Department of Justice and five other governmental agencies were sued lastweek by a privacy watchdog group for using Facebook, Twitter and other socialnetworks to investigate citizens in criminal and other matters. The ElectronicFrontier Foundation wants to know exactly how the feds are using socialnetworking to gather information in investigations.The suit comes as Congress is considering legislation to increase protectionsfor consumers who use social networking sites. So far, the government is stayingmum how it is leveraging these new tools in investigations and what it iscollecting from the Internet.In addition to the Justice Department, the suit names other agencies, including:the Department of Defense, DHS, the CIA, the Department of Treasury and theOffice of the Director of National Intelligence."Although the Federal Government clearly uses social networking websites tocollect information, often for laudable reasons, it has not clarified the scopeof its use of social-networking websites or disclosed what restrictions andoversight is in place to prevent abuse," the lawsuit said.Law enforcement usually needs a warrant to collect information, but it's unclearwhere social networks stand in terms of the right to protect information that ispublicly available for everyone to see.For more on this lawsuit:- see this eWeek.com articleRelated Articles:FBI cannot handle load of electronic evidenceFBI: Hackers target social networksNSA uses Facebook, tooFederal agencies try TwitterGet Your FREE FierceGovernmentIT Email Newsletter:http://www.fiercegovernmentit.com/story/doj-sued-sleuthing-practices-facebook-tw\itter/2009-12-05?utm_medium=nl&utm_source=internal

California Court of Appeals finds no emotional distress in vet's negligence

October 31, 1:19 PM Seattle Pet Laws ExaminerJean-Pierre Ruiz

Earlier this year, the California Court of Appeals found that a veterinarian’s negligence causing the death of the Plaintiff’s dog and later cover-up was conduct that was neither extreme nor outrageous enough to support a cause of emotional distress because she was neither a witness nor a direct victim. The Court also ruled that the Plaintiff could not recover for the peculiar value of the dog because “peculiar value” does not include “emotional attachment.” Finally, the Court declined to extend the loss of companionship tort to actions involving companion animals.

In McMahon v. Craig, No G040324, slip op at 2 (Cal. Ct. App. July 31, 2009), Plaintiff Gail McMahon, an owner and occasional breeder of Maltese show dogs, brought emotional distress and loss of companionship claims after one of her Maltese, Tootsie, died of likely aspiration pneumonia while under the care of veterinarian Diane Craig. Ms. McMahon had taken Tootsie to

Dr. Craig to correct the dog’s laryngeal paralysis, causing respiratory distress. In her complaint, Ms. McMahon alleged that Dr. Craig negligently fed her dog too soon after surgery.
During pre-surgery consultations, Ms. McMahon told Dr. Craig “about Tootsie’s history, described her strong bond to Tootsie, and stated she would do whatever she could, regardless of cost, to help [Tootsie].” Friends of Ms. McMahon even wrote letters to Dr. Craig explaining “the special bond” Ms. McMahon had with Tootsie. At trial, Ms. McMahon alleged that Dr. Craig “understood Tootsie’s peculiar value to McMahon, and that McMahon would be emotionally devastated if Tootsie died.” Dr. Craig advised Ms. McMahon that aspiration pneumonia was the greatest post-operative risk. Ms. McMahon testified that she understood food and water would be withheld from Tootsie for 24 hours following surgery to reduce the risk of aspiration pneumonia. Nevertheless, Dr. Craig ordered a technician to feed Tootsie a mixture of water and baby food two hours after the surgery “to test [Tootsie’s] ability to swallow.” Tootsie immediately aspirated the mixture into her lungs, thereby acquiring aspiration pneumonia. Dr. Craig advised Ms. McMahon but claimed that Tootsie had only been given water while promising that this was not a major setback and that Tootsie would receive the best care and be closely monitored. Dr. Craig thus failed to tell Ms. McMahon that Tootsie had been fed a mixture of baby food and water, and further failed to tell Ms. McMahon that “the pneumonia posed a serious, life threatening situation.” Adding insult to injury, and contrary to Dr. Craig’s promise, Tootsie was placed in a cage and left unmonitored in the back of the hospital. No antibiotics, oxygen, glucose, and other supportive care necessary to sustain life in a critical patient were provided by Dr. Craig. Around midnight that day, Tootsie died. She discovered by accident the next day by a technician who was checking on another day. Hence, by Dr. Craig’s negligence and lack of care, not to say professionalism, Tootsie died by herself in a cage, in a place she was not familiar with, alone with her fears and, no doubt, pain at being separated from those she loved and had promised to care for her.


Following Tootsie’s death, Dr. Craig denied in a letter that Tootsie had been given any food and alleged that Tootsie was never left alone and was under constant care. Dr. Craig further claimed that Tootsie’s death was due to her aspiring her own excrement. Ms. McMahon requested Tootsie’s medical records but Dr. Craig withheld the part which showed that Tootsie had been fed some baby food. Ms. McMahon obtained the complete records from a third-party and Dr. Craig altered her records to reflect the data that Ms. McMahon had obtained independently. A necropsy showed that Tootsie had likely died from aspiriting baby food. Adding icing on the cake, three days after Tootsie’s death, Dr. Craig directed that Ms. McMahon’s credit card be charged for all unpaid services rendered Tootsie for which Ms. McMahon had not even given her consent!


The Court correctly reasoned that Ms. McMahon “was neither a witness nor a direct victim of [the] defendants’ negligent acts” and thus could not obtain emotional distress damages for negligence. However, the Court also found no value in Ms. McMahon’s allegation that she had a special bond with Tootsie similar to the patient-doctor relationship that imposed a duty on Dr. Craig to avoid causing her emotional distress. The Court reasoned that, though Ms. McMahon had hired Dr. Craig, this latter’s “care”(?) had been directed at Tootsie, not Ms. McMahon. Finding Dr. Craig’s conduct insufficiently outrageous, it struck an intentional infliction of emotional distress claim. Finally, it limited proof of special value to those attributes “evidenced by the original cost, and the quality and condition at the time of the loss.” The Court, however, “endorsed” the pet industry’s argument that: “permitting plaintiffs to recover emotional distress damages for harm to a pet would likely increase litigation and have a significant impact on the courts limited resources.” The Court ignored, willingly or unwillingly, evidence that shows that the industry’s argument is without foundation. As Christopher Green noted in his law review article, The Future of Veterinary Malpractice Liability in the Care of Companion Animals, 10 Animal L. 163, 176-77 (2004): “Louisiana, Texas, and Florida each first awarded punitive or emotional damages for companion animal harm in the early 1960s, yet no deluge from ‘opening the floodgates of litigation’ ever materialized in any of those states during the forty years hence.”


In 2002, the Illinois legislature enacted perhaps the most comprehensive law on damages in companion animal negligence cases. Titled the Humane Care for Animals Act; the statute provides that: “[d]amages may include, but are not limited to, the monetary value of the animal, veterinary expenses incurred on behalf of the animal, any other expenses incurred by the owner in rectifying the effects of the cruelty, pain, and suffering of the animal, and emotional distress suffered by the owner.” Even so, there has been no flood of emotional distress claims in Illinois so far.
The Court, recognizing that “California law does not allow parents to recover for the loss of companionship of their children,” did not allow Ms. McMahon “to recover for loss of the companionship of a pet.” Lastly, it ordered Ms. McMahon to pay Dr. Craig’s appeal costs.


What is sadly not surprising, but always saddening, is that the veterinary and pet industries (e.g., California Veterinary Medical Association) filed a number of briefs in support of the Defendant and later praised the Court’s decision. The Animal Health Institute, members of which purportedly “invest hundreds of millions of dollars on the innovations, research and science necessary for advances in pharmaceuticals, biologics, and pesticides for animals,” asserted that a contrary result would actually hurt pets. Of course, unsaid is how exactly a decision which would support emotional distress in case of veterinary malpractice would hurt the pets. What is clear is how it would hurt vets who are unprofessional and/or negligent.


Until legislatures across the county accept the fact that there is a human-animal bond and that the death of a companion animal does indeed cause emotional distress, whether one witnesses the death or not, veterinary negligence will go uncompensated. When the courts further limit the measure of an animals’ worth to its “market value”, one could argue that veterinary malpractice will perhaps also go unabated. The McMahon decision gives unethical veterinarian reason to rejoice. It should also provide pause for animal caretakers to be very careful indeed when choosing a veterinarian and certainly, for those living in Irvine (CA), to avoid using the services of Dr. Diane Craig and/or her hospital, Veterinary Surgical Specialists, Inc., and Advanced Veterinary Specialty Group, LLC.

For more info: McMahon v. Craig: declarationsandexclusions.typepad.com/files/court-of-appeal-opinion---g040324.pdf.



http://www.examiner.com/x-9726-Seattle-Pet-Laws-Examiner~y2009m10d31-California-Court-of-Appeals-finds-no-emotional-distress-in-vets-negligence?cid=examiner-email

New Head of Boston Bar a Civil Gideonite!

SOUTH SHORE INSIDER: Milton attorney John Regan, new president of Boston Bar Association
Milton attorney brings agenda to his new role

Gary Higgins/The Patriot Ledger
John Regan of Milton is serving a one-year term as the new president of the Boston Bar Association.

By Brent Lang
The Patriot Ledger
Posted Oct 28, 2009 @ 01:51 AM
Last update Oct 28, 2009 @ 01:59 AM

--------------------------------------------------------------------------------

BOSTON —
JOHN REGAN

John Regan has had a long career as an attorney specializing in intellectual property litigation. Though he has a demanding schedule as a partner at the Boston office of the law firm WilmerHale, Regan last month began devoting a substantial chunk of time to his one-year term as the new president of the Boston Bar Association.

The 9,500-member association emphasizes community service and increasing access to legal services. Those are values that Regan, 59, a Milton resident, exemplifies through his personal philanthropy and professional affiliations. In addition to his current role at the helm of the association, Regan co-chairs WilmerHale’s pro bono and community service committee, managing the contributions of more than 1,000 lawyers spread across 13 offices worldwide.

Why did you volunteer to be president of the Boston Bar Association?

I’ve never volunteered to do anything at the BBA. I’ve always been asked. A lawyer who was then president called me and asked me if I’d get in line for this. I gave all the usual reasons why I couldn’t do it and then was ultimately persuaded why I should do it.

What is the most important role that the association serves?

The BBA is a convener. If I don’t know somebody, I can say to the BBA staff, I need somebody who has this particular skill set. They would know exactly who to ask, because of their experience. When you get the right people in the room and they come with that attitude about getting the job done, and understanding that they have a defined task, things just get done.

How is the Boston Bar Association working to encourage greater diversity in the legal profession?

There was a task force that was created. They put together a plan to try to address this challenge, which is complex. There’s the question of when people actually become lawyers how do you mentor them and bring them into the network. Then, when they are employed, how do they move between positions, between the public and the private sector or between firms of different sizes.

It led us into a whole exciting relationship with what we call six affinity bar associations. The BBA is one of any number of bar associations in Massachusetts, but there are a series of bar associations that are organized around a racial or ethnic identity. The Massachusetts Black Lawyers Association, the Massachusetts Black Women Lawyers Association, the Asian American Lawyers Association. The South Asian lawyers, the gay, lesbian, bisexual, transgender, lawyers, the Hispanic lawyers, they have groups.

What we’ve done is create a section called the diversity inclusion section. They’ve invited the six presidents of those diversity bar associations to be on the steering committee. It’s a new way of thinking about things as opposed to everybody operating in their own orbits and periodically getting together.

What is the Civil Gideon Initiative?

It’s called Civil Gideon because there was a famous Supreme Court case called Gideon v. Wainwright, in which the court decided if someone was accused of a certain level of a crime, you were constitutionally entitled to have a lawyer represent you. The idea of Civil Gideon is that there are certain essential human needs like custody of your children, housing, for which people should have a lawyer.

There is a question about whether it makes a difference, about whether somebody who walks in and is a sympathetic tenant ultimately winds up with the same result. So with others, the Boston Bar Association put together a proposal which received funding on the order of $300,000 from the Boston Bar Foundation, the Massachusetts Bar Foundation, and the Boston Foundation, to do pilot programs in the Quincy District Court and the Lynn District Court. We have legal service agencies collecting data on outcomes in eviction cases for tenants who had lawyers and tenants who didn’t. Conceptually it started two years ago. I think that they expect to have the data some time early next year.

Why do you think pro bono and volunteer work is important for lawyers?

I think most people you would talk to would say that going off and doing that lets you come back to the billable work energized. I’ve been in the legal profession for awhile. I think at some point you have to give something back to the system.


http://www.patriotledger.com/business/x876589910/SOUTH-SHORE-INSIDER-Milton-attorney-John-Regan-new-president-of-Boston-Bar-Association

Update on the Civil Gideon Movement

CA Pilot Program to Expand Counsel in Areas of Critical Need

On Oct. 11, 2009, Governor Arnold Schwarzenegger signed into law AB 590, the Sargent Shriver Civil Counsel Act, which provides funding for a six-year pilot program to test the effectiveness of significantly expanding access to counsel in certain types of civil cases. The pilot program, which will begin in July 2011, is funded by a $10 surcharge on certain post-judgment fees and is expected to raise some $10 million per year.

Pilot projects are to be partnerships between a court, a lead legal services agency, and other community legal services providers, with the use of pro bono resources specifically encouraged. A competitive grant process will select the participating counties, courts, and legal services agencies. The law funds representation in housing, domestic violence, conservatorship, guardianship, and elder abuse cases, as well as actions by parents seeking sole custody of children. Litigants with income under 200 percent of the federal poverty level (in 2009, $36,620 for a family of 3) are eligible, although representation is not guaranteed. A report evaluating the program is required by January 2016, and must cover (among other things), the allocation by case type of pilot funding, the impact of counsel on equal access to court, and data on the impact of the pilot program on families and children.

This development is getting significant attention around the country; for links to some of the media coverage see the recent developments page of www.civilrighttocounsel.org.


Alaska Supreme Court Declines to Rule on
Right to Counsel

In August the Alaska Supreme Court dismissed Office of Public Advocacy v. Alaska Court System, an appeal that had arisen out of a custody case (Gordanier v. Jonnson) involving an unrepresented mother's request for appointment of counsel when her opponent was represented by a private agency. An indigent party in Alaska has a statutory right to counsel when the opponent is represented by a public agency. Originally the Alaska Court System was directed to appoint counsel to represent the mother, with the court citing the due process and equal protection clauses of Alaska's Constitution. The trial court later changed its ruling to appoint the Alaska Office of Public Advocacy to represent the mother, citing statutory and equal protection grounds. The Office of Public Advocacy appealed.

Oral argument was heard in May, and subsequently the Supreme Court asked for briefing on mootness, expressing concern that the due process issue had not been cross appealed by the court system and that the state had not actively litigated the case. Despite briefing from OPA and amici disputing mootness, the Supreme Court dismissed the case. The positive trial court ruling therefore stands, although it lacks precedential value. For more see the June 2009 issue of Civil Right to Counsel Update.

Alaska advocates, frustrated but not disheartened, have regrouped and are seeking another matter to bring before the high court. Given the exposure that this case received, the next case likely will both place the due process issue squarely before the Court, and involve the state's active participation. In Gordanier, the state had been invited to participate at the trial court level, but declined. Although the State of Alaska represented the Office of Public Advocacy on appeal, the Supreme Court appears to be seeking the state's independent involvement. Stay tuned...


Orientation at New Law School Emphasizes Right to Counsel

The first new public California law school in over 40 years--at the University of California at Irvine--opened this fall. The university enticed noted constitutional scholar Erwin Chemerinsky to serve as founding dean, and the student orientation--reflecting Chemerinsky's conviction that the students should consider questions of access to justice--was built around the right to counsel in civil cases.

Before arriving, students were to have read the U.S. Supreme Court opinions in Gideon v. Wainwright and Lassiter v. Dept. of Social Services. Following a lecture on briefing a case, they broke into small groups and discussed the cases' rationale. Students then briefed both sides of a case involving whether alleged gang members should, at a hearing to consider a gang injunction they might later be punished for violating, have a constitutional right to a lawyer. At a luncheon presentation, retired Court of Appeal Justice (and active NCCRC participant) Earl Johnson introduced the students to the broader international perspective on the right to counsel issue, as well as the ABA resolution and the activities of NCCRC. Later the students viewed the film Gideon's Trumpet, made brief arguments on the gang injunction issue, and watched veteran appellate lawyers argue the same hypothetical case before Ninth Circuit Court of Appeal Judge Richard Paez, a former Director of Litigation at the Legal Aid Foundation of Los Angeles. The orientation concluded with an address by California Supreme Court Justice Carlos Moreno on access to justice. The students reported they found the orientation based on the right to counsel issue "engaging, relevant, and well-conceived."



NCCRC to Conduct Two Panels at
Nov. NLADA Conference

If you'll be attending the National Legal Aid and Defender Association annual conference in November, be sure to check out one or both of the sessions NCCRC will offer. The first, "Rowing Upstream: Passing Laws and Finding Resources for the Right to Counsel Despite Tough Economic Times," will explore how some states have managed to enact laws in the last decade that either expanded the right to counsel in civil cases or improved the quality of appointed counsel, even during severe economic strain. Presenters will include two NCCRC members: Laura Abel of the Brennan Center, who will also moderate, and Mimi Laver of the ABA Center on Children and the Law. The second session, "The Power of Pilots: Expanding the Right to Counsel By Example," will examine Massachusetts' and California's pilot programs: why they were pursued, what goals the designers had, and how the legislature (for Calif.) and private funders (for Mass.) were convinced to fund the pilots. Presenters for the "Pilots" session will be NCCRC members Earl Johnson, former California Court of Appeal Justice now affiliated with the Western Center on Law and Poverty, and Jayne Tyrrell of the Massachusetts IOLTA Committee; John Pollock, ABA Section on Litigation Civil Right to Counsel Fellow, will moderate. Thanks go to Sharon Rubenstein, who helped develop the two proposals. And a heads-up: civil right to counsel sessions at past NLADA conferences have been standing room only, so get there early!


Cert. Petition Filed in Texas Case

A petition for certiorari is before the U.S. Supreme Court in Rhine v. Deaton, a civil right to counsel case from Texas. In Rhine, the state sought to terminate the parental rights of Ms. Rhine, whose child was already in foster care. On the same day the state dropped its suit due to a rapidly approaching deadline, the foster parents filed a petition to terminate Ms. Rhine's parental rights. Because the Texas statute governing termination of parental rights only provides appointed counsel for indigent parents in suits brought by a "governmental entity," not a private party, Ms. Rhine was denied appointed counsel.

On appeal, the Texas Court of Appeals remanded for a ruling on whether the lower court should exercise discretion to appoint counsel for Ms. Rhine; the trial court found appointment was not necessary. In her petition for review to the Texas Supreme Court, Ms. Rhine argued that the Texas statutory scheme violates the Equal Protection Clause by providing appointed counsel only where the state is the party seeking termination, and also that the trial court on remand had failed to specifically undergo a Lassiter analysis to see whether Ms. Rhine was entitled to appointed counsel as a matter of due process. The Texas Supreme Court denied review, and the U.S. Supreme Court recently invited the Texas Solicitor General to file a response brief.