Standing Committee on Legal Aid and Indigent Defendants
Saturday, August 9, 2014
Hyatt Regency Boston
Quincy Room, Lower Lobby
Boston, MA
Schedule
8:00 - 9:00 am
9:30 am – 12:30 pm
12:30 pm – 1:30 pm
1:30 – 4:30 pm
Committee Breakfast/Executive Session
Business Meeting
Committee Lunch (Members & Invited Guests)
Business Meeting
Agenda
I.
Item
Introduction of Members, Liaisons and Guests
II.
Approval of Minutes
Discussion Leader
Page
4
9
MATTERS REGARDING CIVIL LEGAL SERVICES
III.
Resource Center for Access to Justice Initiatives
A. Update on Resource Center activities
B. Report on 2014 ATJ chairs conference
C. ATJ expansion project
Meredith McBurney
Bob Echols
22
25
34
IV.
Legal Services Corporation Funding & Activities Updates
Ann Carmichael
Jim Sandman
39
V.
LSC Relations and Regulations
Jacqui Bowman
Bev Groudine
Terry Brooks
85
VI.
Civil Legal Aid Communications Strategy
Martha Bergmark
VII.
Civil Right to Counsel
Danny Greenberg
121
MATTERS REGARDING BOTH CIVIL LEGAL SERVICES & INDIGENT DEFENSE
VIII.
Program Support Fund
Dan Goyette
IX.
Reports of Liaisons from Other Entities and Organizations
A. Board of Governors Liaison
B. Commission on IOLTA
C. Standing Committee on Pro Bono and Public Service
D. Section of Individual Rights & Responsibilities
E. Commission on Immigration
F. Young Lawyers Division
G. Section of Litigation
H. Criminal Justice Section
Josephine McNeil
Bev Groudine
Mary Ryan
Ginny Sloan
(written report)
Morgan MacDonald
Lisa Wood
Justine Luongo
1
129
130
Item
I. National Legal Aid & Defender Association
J. Department of Justice Office of Access to Justice
Discussion Leader
Burnett/Saunders
Karen Lash
Chair & Staff Report
A. ABA Presidential Task Force on Legal Access Job Corps
B. Other relevant developments
Terry Brooks
Lisa Wood
132
134
XI.
Language Access Standards for Courts
Lisa Wood
136
XII.
Reports of SCLAID Liaisons to Other Entities
A. Commission on Domestic & Sexual Violence
B. Commission on Homelessness & Poverty
Dru Ramey
(written report)
137
141
XIII.
Loan Repayment And Forgiveness
Lisa Wood
XIV.
Harrison Tweed Award
Bev Groudine
143
XV.
House of Delegates Resolutions of Interest
A. Resolution 112A – Commission on Domestic Violence – adopts
the Model Workplace Policy on Employer Responses to Domestic
Violence, Sexual Violence, Dating Violence and Stalking and
encourages employers and others to enact formal policies on the
workplace responses to domestic violence, dating violence, sexual
violence, and/or stalking violence.
B. Resolution 112B – Commission on Domestic Violence –
condemns forced marriage as a fundamental human rights violation;
urges federal, state, territorial, local and tribal governments to
amend existing laws, or to enact new laws, to prevent forced
marriages; urges governments to collaborate with service providers
and others to develop victim-centered legal remedies, and to
promote training of relevant system participants.
C. Resolution 115 – Commission on Law & Aging –rebalancing the
Social Security OASI and Disability Trust Funds to avert a projected
solvency crisis with the disability trust fund in 2016.
Dru Ramey
144
Dru Ramey
164
Lisa Wood
176
X.
Page
MATTERS REGARDING INDIGENT DEFENSE
XVI.
Draft Revised ABA Standards for Criminal Justice
Dan Goyette
189
XVII.
Field Services
A. Missouri workload project
B. Tennessee and Rhode Island workload projects
Steve Hanlon
Tori Jo Wible
Geoffrey Burkhart
226
227
Recent Relevant Developments
A. National commission on indigent defense
B. Other relevant developments
Tori Jo Wible
Steve Hanlon
229
230
XIX.
Projects and Policy Proposals in Development
Tori Jo Wible
232
XX.
2015 SCLAID National Summit on Systemic Improvement/Reform
Maureen Essex
235
XXI.
New Business
XVIII.
2
XXII.
Item
Discussion Leader Page
Future Meetings & Relevant Events (Bold are mandatory)
SCLAID Committee Mtg. - November 15, 2014 (NLADA Annual Conf.) – Arlington VA
SCLAID Committee Mtg. – February 8, 2015 – Houston, TX (SUNDAY Meeting)
SCLAID Committee Mtg. – April 11-12, 2015 – Washington, DC (tentative)
Equal Justice Conference – May 7-9, 2015 – Austin, TX
National Meeting of Access to Justice Commissions – May 9, 2015 – Austin, TX
SCLAID Committee Mtg. – August 1, 2015 – Chicago, IL
3
2013-2014
ABA Standing Committee on Legal Aid and Indigent
Defendants
Chair
Lisa C. Wood
Foley Hoag LLP
Seaport World Trade Center West
155 Seaport Boulevard
Boston, MA 02210-2600
Phone:
Cell:
Fax:
E-mail:
617-832-1117
617-759-1274
617-832-7000
[email protected]
Members
Jacquelynne J. Bowman
Greater Boston Legal Services
197 Friend Street
Boston, MA 02114
Phone: 617-603-1602
Cell:
617-230-8601
E-mail: [email protected]
Maureen Essex
US District Court
101 W. Lombard Street., Room 8A
Baltimore, MD 21201
Phone: 410-962-7494
Cell:
301-580-2001
E-mail: [email protected]
Daniel Goyette
Public Defender Corp.
719 W. Jefferson Street
Louisville, KY 40202
Phone: 502-574-3720
Cell:
502-817-1370
E-mail: [email protected]
Danny Greenberg
Schulte Roth & Zabel LLP
919 Third Avenue
New York, NY 10022
Phone: 212-756-2069
Cell:
718-915-3171
E-mail: [email protected]
Stephen F. Hanlon
4400 Lindell Blvd
Apartment 23K
St. Louis, MO 63108
Cell: 202-243-8098
E-mail: [email protected]
Seymour Wesley James, Jr.
Legal Aid Society
199 Water Street, Ste 400
New York, NY 10038-3517
Phone: 212-577-3646
Cell:
E-mail: [email protected]
Hon. Thomas L. Kilbride
1819 4th Avenue
Rock Island, IL 61201-8118
Phone: 309-794-3608
Cell:
E-mail: [email protected]
Hon. Jon D. Levy
U.S. District Court
156 Federal Street
Portland, ME 04101
Phone: 207-822-4227
Cell:
Email: [email protected]
Ada Shen-Jaffe
Seattle University School of Law
901 12th Avenue, Sullivan Hall, Room 430
P.O. Box 222000
Seattle, WA 98122-1090
Phone: 206-398-4161
Cell:
206-999-7203
E-mail: [email protected]
Drucilla Stender Ramey
Golden Gate University
1372 Masonic Avenue
San Francisco, CA 94117
Phone: 415-442-6600
Cell:
415-652-8194
E-mail: [email protected]
4
Incoming Members
Teresa Enriquez
Public Defender's Office Eleventh Judicial Circuit
1500 NW 12 Avenue; Ste 900
Miami, FL 33136
Renato Izquieta
Legal Aid Society of Orange County
2101 N Tustin Avenue
Santa Ana, CA 92705-7819
Phone: 305-545-3348
Cell:
E-mail: [email protected]
Phone: 714-571-5258
Cell:
E-mail: [email protected]
Continuing Special Advisor
Norman Lefstein
Indiana University Robert H. McKinney School of Law
530 West New York Street
Indianapolis, Indiana 46202-3225
Phone:
Cell:
(317) 698-0966
E-mail: [email protected]
Incoming Special Advisor
John M. Rosenberg
147 Clark Drive
Prestonsburg, KY 41653-1657
Phone: 606-886-8851
Cell:
E-mail: [email protected]
Liaison from Board of Governors
Josephine A. McNeil
Can-Do
1075 Washington Street
West Newton, MA 02465
Phone:
Cell:
Fax:
E-mail:
617-964-3527
617-543-8097
617-964-3593
[email protected]
Incoming Liaison from Board of Governors
David Bienvenu
Simon Peragine Smith & Redfearn LLP
1100 Poydras St ; Ste 3000
New Orleans, LA 70163
Phone: 504-569-2930
Cell:
E-mail: [email protected]
Liaisons
Incoming Law Student Division Liaison
James Davy
802 9th St. NE
Washington, D.C. 20002
Phone: 609-273-5008
Cell:
E-mail: [email protected]
Young Lawyers Division Liaison
Phone:
Cell:
E-mail: [email protected]
Morgan Macdonald
Section of Litigation Liaison
Lisa C. Wood
Seaport World Trade Center West
155 Seaport Boulevard
Boston, MA 02210-2600
Phone: 617-832-1117
Cell:
Fax:
617-832-7000
E-mail: [email protected]
Section of Individual Rights & Responsibilities
Virginia Sloan
The Constitution Project
1200 18th St NW; Ste 1000
Washington, DC 20036-2555
Phone: 202-580-6923
Cell:
Fax:
E-mail: [email protected]
5
Section of Criminal Justice:
Justine M. Luongo
Deputy Attorney-in-Charge
Criminal Defense Practice
Legal Aid Society of New York
199 Water Street, 6th floor
New York, NY 10038
Commission on Immigration Liaison
Robert E. Juceam
Fried Frank, et. Al.
1 New York Plaza
New York, NY 10004-1901
Phone:
Cell:
Fax:
Email:
212-577-3583
718-451-6056
646-616-4058
[email protected]
Phone:
Cell:
Fax:
E-mail:
212-859-8040
917-860-1064
212-859-4000
[email protected]
Committee Staff
Staff Counsel
Terry Brooks
ABA Division for Legal Services
321 N. Clark Street
Chicago, IL 60654-7598
Phone: 312-988-5747
Fax:
312-932-6425
E-mail: [email protected]
Associate Committee Counsel
Bev Groudine
ABA Division for Legal Services
321 N. Clark Street
Chicago, IL 60654-7598
Phone: 312-988-5771
Fax:
312-932-6425
E-mail: [email protected]
Assistant Committee Counsel
Tori Jo Wible
ABA Division for Legal Services
321 N. Clark Street
Chicago, IL 60654-7598
Phone: 312-988-5753
Fax:
312-932-6425
E-mail: [email protected]
Director, Resource Center for Access to Justice Initiatives
Steve Grumm
Phone: 312-988-5748
ABA Division for Legal Services
Fax:
312-932-6425
321 N. Clark Street
E-mail: [email protected]
Chicago, IL 60654-7598
Staff Attorney
Geoffrey Burkhart
ABA Division for Legal Services
321 N. Clark Street
Chicago, IL 60654-7598
Phone: 312-988-5102
Fax:
312-932-6425
E-mail: [email protected]
Program Manager
Tamaara Piquion
ABA Division for Legal Services
321 N. Clark Street
Chicago, IL 60654-7598
Phone: 312-988-5767
Fax:
312-932-6425
E-mail: [email protected]
Administrative Assistant
Charity Golter
ABA Division for Legal Services
321 N. Clark Street
Chicago, IL 60654-7598
Phone: 312-988-5750
Fax:
312-932-6425
E-mail: [email protected]
6
PRIVACY NOTICE
The material contained in this American Bar Association listing is protected by copyright and is solely intended for the individual and private
use of ABA members in a manner that is consistent with the ABA's mission, goals, and activities. All other use is strictly prohibited without
prior written authorization from the ABA. Prohibited use includes but is not limited to the copying, renting, leasing, selling, distributing,
transmitting or transfer of all or any portions of the material, or use for any other commercial and/or solicitation purposes of any type, or in
connection with any action taken that violates the ABA's copyright. The material is not to be used for any mass communications and may be
used only for one-to-one member communication. For information concerning appropriate use of the material, contact the ABA Service
Center at 1.800.285.2221.
7
SCLAID 2013-2014 Proposed Subcommittees & Liaisons
Subcommittee/Liaison Assignment
Subcommittee: LSC Relations & Regulations
(Staff Support: Bev)
Subcommittee: LSC Board Nominee Review
(Staff Support: Terry)
Subcommittee: Access to Justice Resource Center
(Staff Support: Steve G)
Subcommittee: Civil Right to Counsel
(Staff Support: Terry)
Subcommittee: Awards (Harrison Tweed)
(Staff Support: Bev)
Subcommittee: Indigent Defense/Indigent Defense
Advisory Group
(Staff Support: Tori Jo)
Members
Jacqui Bowman, CHAIR
Jon Levy
Ada Shen-Jaffe
If Board appointments occur, all Committee members who do
not have a conflict will be asked to serve. (Committee alumni
may also assist in any reviews)
Tom Kilbride, CHAIR
Jacqui Bowman
Danny Greenberg
Jon Levy
Danny Greenberg, CHAIR
Advisors:
Jacqui Bowman
Mike Greco
Seymour James
Ed Schoenbaum
Ada Shen Jaffee, CHAIR
Maureen Essex
Tom Kilbride
Steve Hanlon, CHAIR
Advisors
Maureen Essex
Adele Bernhard
Daniel Goyette
James Bethke
Danny Greenberg
Robert Boruchowitz
Seymour James
Jean Faria
Norman Lefstein
Member TBD
Liaisons:
Ed Burnette, NLADA
Jon Gross, NACDL
Jamie Hawk ABA YLD
Tina Luongo ABA-CJS
Bob Stein ABA IRR
Mike Tobin ACCD
ABA Gen Pract Sec Rep
Subcommittee: Program Support Fund
(Staff Support: Terry)
Representative: Civil Rt. to Counsel Working Grp.
Liaison: Post Conviction Death Penalty
Liaison: Comm’n on Homelessness & Poverty
Liaison: Comm’n on Domestic Violence
Dan Goyette, CHAIR
Steve Hanlon
Dru Ramey
Jacqui Bowman
Erek Barron**
Ada Shen-Jaffe
Dru Ramey
**Erek Barron completed his tern on SCLAID in 2012, but he was appointed to the Special Committee on the Death
Penalty Representation Project in 2011, and will likely remain a member of that group as the SCLAID
representative until 2014.
8
Standing Committee on Legal Aid and Indigent Defendants
SCLAID Business Meeting
April 10-11, 2014
Washington, DC
Participants:
Minutes
Members:
Lisa Wood, Chair
Jacquelynne Bowman (via telephone)
Maureen Essex
Dan Goyette
Daniel Greenberg
Stephen Hanlon
Ada Shen-Jaffe
Seymour James (via telephone)
Hon. Thomas Kilbride
Hon. Jon Levy
Drucilla Stender Ramey
Guests:
Ed Burnette
Martha Bergmark
Karen Lash
Morgan McDonald
Jim Sandman
Phil Schrag
Jo-Ann Wallace
Staff:
Terry Brooks
Ann Carmichael
Bev Groudine (via telephone)
Amy Horton Newell
Tori Jo Wible
Norman Lefstein, Special Advisor (via telephone)
Liaisons:
Josephine McNeil, Board of Governors Liaison
1.
Introductions of Members, Liaisons and Guests
Members, liaisons and guests introduced themselves.
2.
Approval of Minutes
Justice Levy moved the approval of the minutes of the last two meetings. The motion was seconded and
approved without dissent.
3.
Draft Revised ABA Standards for Criminal Justice
Mr. Hanlon and Mr. Goyette explained that they had spoken to Neal Sonnet and other members of the
Criminal Justice Section Council concerning SCLAID-proposed changes to the proposed revised
Standards.
9
Standing Committee on Legal Aid and Indigent Defendants
Minutes of Meeting
April 10-11, 2014
Page 2
Mr. Hanlon reported that Mr. Sonnet will support the proposed point #1 in the SCLAID comments – that
compensation for defenders and prosecutors should be both adequate and comparable. Mr. Goyette
reported that others he has spoken with will also support that change.
Mr. Hanlon reported that Mr. Sonnet requested supporting citations for the claim regarding the second
change requested by SCLAID that the single greatest deficiency in indigent defense is the failure to
conduct adequate investigations. Mr. Hanlon and Mr. Lefstein cited a recent research study in support
of that point.
Other members asked whether the CJS proposal to change subsection (a) of Standard 4-4.1 (to read
“The scope and intensity of investigation may vary and should be guided by the circumstances of each
case, including potential consequences to the client of either prolonging or terminating the
investigation.”) is not merely an accurate reflection of the law. It is, of course, necessary for the
individual circumstances to be taken into account in each case.
Mr. Hanlon stated that the reality of what occurs in courtrooms across the nation is that any suggestion
that defense counsel should do less will result in inadequate defense. Mr. Goyette suggested that the
need for some accommodation to individual circumstances can be addressed in the commentary.
Other members noted that there are many areas in the standards where circumstances vary, and where
counsel must take the specific circumstances into account when deciding how much time to invest in
investigation or other aspects of preparation. But the standards do not in every such instance say in
black letter that counsel may do less than in other circumstances. By doing it in this particular standard,
the suggestion is implied that counsel should do less.
It was suggested that SCLAID say that, while on its face, the proposed change appears to conform to the
state of the law, due to the context of overwhelming caseloads, it is inappropriate to send a signal that
less investigation can be appropriate in the black letter of the standards.
Mr. Goyette noted that the black letter of standards should present best practices, and commentary is
the proper place to explain any divergence from best practice.
With respect to the third point raised by SCLAID in its comments (that proposed revised standard 4-6.1
(b), much like Standard 4-4.1 discussed above, is intended to weaken defense counsel’s duty to
investigate their cases), Mr. Hanlon reported that Mr. Sonnet claims that no previous objections have
been raised to the proposed change to Standard 4-6.1, through the past 2 years of CJS readings and
discussions. Mr. Hanlon noted that the recently-completed and widely-cited Missouri study is founded
in part on the assumption that defense counsel should not advise a client to accept a plea without any
investigation.
Mr. Hanlon reported that Mr. Sonnet had suggested some compromise language for this standard,
which replaces the first “should” with “must” in the proposed revised standard. He distributed an email
from Mr. Lefstein suggesting alternate language.
10
Standing Committee on Legal Aid and Indigent Defendants
Minutes of Meeting
April 10-11, 2014
Page 3
In the ensuing discussion, it was noted that the language suggested by Mr. Lefstein in his memo to the
Indigent Defense Advisory Group states that guilty pleas without investigation should occur rarely. This
does not reflect the reality in high-volume courts, such as those in New York City.
Members noted that in many less serious cases it is in a client’s interest to dispose of a matter at first
appearance with a modest fine to avoid subsequent appearances. But others also noted that even a
conviction of a minor offense can have devastating collateral consequences.
Discussion ensued of how to accommodate the reality that there are hundreds of thousands of cases
daily where it may be in the best interest of all involved to have quick pleas of guilty in minor matters. It
was suggested that the solution to this is to change the laws so that we have not criminalized so many
minor matters. Further discussion occurred of the language proposed by Mr. Lefstein. No consensus on
that language was reached.
Mr. Goyette noted that Sonnet made 3 main points with respect to 4-6.1 (b):
a. Changing the word “should” to “must” in the first line.
Mr. James moved that this change be accepted. The motion passed.
b. Remove the word “ordinarily”
Motion to accept this change was made, seconded and adopted.
c. Change language concerning the third sentence of the paragraph.
Mr. Sonnett had asked that SCLAID give details on what is meant by its proposal to insert the concept of
“rarely” into this sentence. A motion was made to let the original SCLAID comment stand as submitted
to CJS. (i.e. the Committee will decline to provide any additional details or language as proposed by Mr.
Sonnett).
Regarding SCLAID comment #4 concerning waiver of rights in disposition agreements: Mr. Sonnett
agreed that this standard should be conformed to ABA policy as articulated in Resolution 113E.
Regarding SCLAID comment #5 concerning “exploding” plea offers: Mr. Sonnett agrees with the SCLAID
comments.
4.
House of Delegates Resolutions of Interest
Justice Levy recused himself from participating or voting on these resolutions.
A motion to cosponsor the resolution on wrongful executions was made, seconded and adopted.
A motion to cosponsor the resolution on amending the Jencks Act, etc. was made, seconded and
adopted.
11
Standing Committee on Legal Aid and Indigent Defendants
Minutes of Meeting
April 10-11, 2014
Page 4
5.
Field Services
A. Mr. Hanlon reported that a preliminary report on the Missouri workload project was released in
February 2014 in conjunction with the SCLAID Summit on Indigent Defense.
A draft final report, which includes additional material and a blueprint for conducting similar studies in
other jurisdictions, has been completed today. It will be circulated to the Indigent Defense Advisory
Group for that group to develop a recommendation to SCLAID.
B. Mr. Hanlon and Mr. Brooks reported that SCLAID has received a sub-grant from the National
Association of Criminal Defense Lawyers to conduct additional workload studies in 2 more jurisdictions.
This will permit ABA to hire a new assistant counsel for indigent defense to support the project.
Recruitment for that position is now underway. The jurisdictions have been selected: Rhode Island and
the 3 major metro areas in Tennessee. Project work is expected to start in June.
6.
Recent Relevant Indigent Defense Developments
A. Proposed national commission on indigent defense
Ms. Wible and Mr. Brooks explained that the concept of a proposed national commission on indigent
defense remains stalled. Ms. Wallace suggested that there may be other strategies to achieve the
results that were hoped to be achieved by creation of a national commission.
B. UN Universal Periodic Review
Mr. Hanlon reported on his appearance on behalf of SCLAID at a Universal Periodic Review of U.S.
compliance with treaties it has signed.
C. Letter to Ethics Committee regarding Uncounseled Plea Waivers (additional item not on
agenda)
Mr. Hanlon reviewed the status of this matter. Shortly after committee discussion of a possible request
to the ABA StC on Ethics and Professional Responsibility in February, the request was finalized and
transmitted. An inquiry was then received from the Ethics Committee regarding some aspects of the
request. A response to that inquiry has been drafted and was shared with the committee.
Members discussed the draft response. Some concern was expressed about the length of the letter and
whether it is appropriate to send such a lengthy response to a very short inquiry. Also, the view was
expressed that the final paragraph on the bottom of page 2 of the draft is an overstatement of the law;
the “vast majority of persons charged with misdemeanor violations” do not have a right to counsel
because they are not facing incarceration. Agreement to change the language to read “…a significant
number…”Further agreement was reached to include a brief cover email giving brief responses to the
questions posed in the inquiry.
7.
Projects and Policy Proposals in Development
12
Standing Committee on Legal Aid and Indigent Defendants
Minutes of Meeting
April 10-11, 2014
Page 5
Ms. Wible reported on the status of several projects and policies in development. A subcommittee
continues to work on a model colloquy on waivers of counsel. A policy proposal to urge that the
Department of Justice be empowered to pursue state 6th Amendment violations has been put on hold
because it is not seen by our legislative counsel as an urgent matter. A report on state alternative
sources of revenue for defender systems should be completed prior to the August SCLAID meeting.
Ms. Wible noted that Jaime Hawk has planned to develop a program, under SCLAID auspices, at the
2014 ABA Annual Meeting recognizing the 50th anniversary of the Criminal Justice Act. She has not
reported back regarding that program recently. Ms. Essex agreed to call Ms. Hawk to learn her plans and
to determine if it is feasible to go forward with this project.
8.
Future SCLAID Conferences/Symposia on Systemic Reform
Ms. Wible reported that the IDAG is working on going forward with a Summit in future years. Discussion
of the structure and timing of that event resulted in consensus that:
A. Mr. Hanlon and Mr. Seymour will follow up with contacts within the National Conference of
Bar Presidents to urge that at a future time SCLAID have the opportunity to make a presentation on
indigent defense at a meeting of bar leaders. SCLAID will focus its efforts on bringing this issue to the
organized bar at venues where bar leaders already gather, and will not seek to attract bar leaders to
attend a SCLAID-sponsored event such as the Summit as the principal vehicle for engaging bar leaders.
To the extent feasible, SCLAID should develop a jurisdiction-specific “ask” or set of issues that address
the unique situation in a particular state/jurisdiction.
B. The Summit will continue as a Midyear meeting event. A venue with lower costs will be
selected as host.
9.
Program Support Fund
Mr. Goyette reported that support fund donations have continued with contributions of $7,600 during
the current fiscal year.
10.
Reports of Liaisons from Other entities and Organizations
A. Board of Governors Liaisons
Ms. McNeil reported that the ABA continues to need to contain its expenses, even though there has
been a dues increase approved. The budget is not yet adopted for FY2015.
B. Commission on IOLTA
Ms. Groudine reported that the Commission will soon be conducting its annual survey to gather data on
IOLTA programs. She reported that Puerto Rico has now established an IOLTA program; it is the 53rd
such program. The Colorado Supreme Court is considering a rule revision to implement IOLTA rate
comparability. In Georgia, the bar has implemented a process to seek a comparability rule in that state.
13
Standing Committee on Legal Aid and Indigent Defendants
Minutes of Meeting
April 10-11, 2014
Page 6
C. Standing Committee on Pro Bono and Public Service (Written Report)
E. Commission on Immigration (Written Report)
F. Young Lawyers Division
Mr. MacDonald noted that he has chaired the YLD Access to Legal Service Committee. The YLD Assembly
recently adopted a resolution urging that in-house counsel be permitted to do pro bono work in a
jurisdiction even if not admitted to practice in that jurisdiction. He also reported that the YLD recently
held an educational teleconference on delivery of legal services in rural communities. The Division is also
developing an educational program on unbundled legal services. Mr. MacDonald expressed an interest
in partnering with other groups to present webinars on such topics.
G. Law Student Division (No report)
H. National Legal Aid & Defender Association
Ms. Wallace reported that NLADA is working with the National Opinion Resource Center on a periodic
census of indigent defense programs. Surveys will be sent in July, with a goal of collecting a broader
array of information than has been sought in the past. This was last done in 2007, but at that time the
census only obtained information from the largest counties. NLADA hopes that the ABA will also include
a letter in the survey urging responses. Staff are to work to obtain requisite approvals for ABA to provide
such an endorsement. Ms. McNeil suggested that obtaining cosponsorship approval from the ABA Board
of Governors may be one route to obtaining approvals.
Mr. Burnett reported that NLADA is also working with American University through a BJA grant to
develop a self-assessment tool for indigent defense programs, based on the ABA ten principles. They
have distributed a survey requesting each jurisdiction to conduct a self-assessment received over 200
responses to the survey. The ACCD will have its annual conference on July 23rd in Washington DC, with a
theme of technology and its use in improving indigent defense systems. This will be in conjunction with
a conference of the community-centered defense network.
Mr. Saunders joined the meeting to provide a report on civil legal aid issues. He noted that the Legal
Services Corporation is beginning to examine its authority and process for providing funding for
representation of migrant workers. He urged the Committee to become engaged in examining and
participating in discussion of this issue.
Mr. Sandman further described the issues regarding migrant funding. Due to technical issues, LSC is
distributing migrant grants based on early 1990s census data. The basis for distribution of grants needs
to be updated. Also, the program currently targets funding toward migrant workers, and the current
situation is that funding is needed to more broadly address issues of other workers in the agricultural
industry. It was noted by other members that representation of agricultural workers has historically
been a matter of some controversy.
14
Standing Committee on Legal Aid and Indigent Defendants
Minutes of Meeting
April 10-11, 2014
Page 7
Mr. Saunders also reported that NLADA is creating a repository of research on legal aid topics. He
solicited SCLAID involvement in that effort.
I. Department of Justice Office of Access to Justice
Ms. Lash reported that the ATJ Office has developed a Legal Aid Interagency Roundtable, and a related
toolkit on how non-LSC federal sources can be used to support local legal aid programs. The toolkit
describes a number of case studies of how legal aid affects various constituencies. By getting the toolkit
approved by 14 different federal agencies, and obtaining a letter of endorsement from the Attorney
General and the Director of the Domestic Policy Council, the needs of legal aid have become much more
widely recognized within the federal government. The Office is now engaged in efforts to distribute and
publicize information about these new resources.
She reported that their office had hosted a visit the previous day by ABA President Jim Silkenat and
President-Elect William Hubbard.
11.
Chair & Staff Report
A. Mr. Brooks provided a report on the work of the ABA Task Force on the Legal Access Job
Corps. He showed a video prepared by that project.
B. Ms. Wood asked Ms. McNeil to report on the result of the ABA Board of Governors Poverty
Convocation. Working groups were formed to carry forward work on the issues identified at that
February event, and they will report back to the Board at a subsequent meeting.
12.
Language Access Standards for Courts
Ms. Wood reported that there have been recent requests for SCLAID to participate in events and
initiatives around language access, after a period of inactivity on that topic. She was asked to speak at a
Department of Justice event unveiling a new self-assessment tool for courts to use in evaluating their
progress in providing language access. Ms. Wood has also been invited to speak at a State Bar of
Michigan symposium on the topic in May. She reported that DOJ has recently announced resolution of
language access concerns with compliance in two additional states. Ms. McNeil suggested that SCLAID
seek to document the impact of the Language Access Standards for purposes of the House of Delegates
resolution impact process.
13.
Reports of SCLAID Liaisons to Other Entities
A. Commission on Domestic and Sexual Violence
Ms. Ramey reported that the Commission is developing a House of Delegates resolution urging
government, employers and others to adopt workplace policies regarding domestic and sexual violence.
The DOJ has adopted a model workplace policy, and the resolution urges others to adopt similar
policies.
15
Standing Committee on Legal Aid and Indigent Defendants
Minutes of Meeting
April 10-11, 2014
Page 8
14.
Loan Repayment and Forgiveness
Ms. Shen-Jaffe provided background information on an issue concerning loan repayment and
forgiveness. Mr. Schrag provided a historical context – the ABA led the way to creation of the public
service loan forgiveness in 2007. This has been a tremendous help to law graduates who were able to
remain in public service positions; it aided legal aid programs greatly in retention. In 2010, a new
repayment scheme was created, which had the effect of also helping public service lawyers to obtain
mortgages and other credit. Mr. Schrag also described other forces that have come into play creating
pressure to cut back loan forgiveness for public service. This resulted in the Obama Administration
adopting an approach in its FY2015 budget proposal limiting the amounts and terms of forgiveness.
The original loan repayment scheme, as adjusted through technical corrections, allowed a married
student debtor to file a separate tax return and then use a repayment schedule that required payment
of only a percentage of that person’s income. The Obama proposal is ambiguous, and could be
interpreted as eliminating this approach and creating a “marriage penalty.”
While it is unlikely that this proposal will succeed in FY2015, it is very likely that the basics of the
proposal will be included in legislative proposals in future years.
Mr. Schrag described the draft resolution included in the Committee materials.
Motion made and seconded to submit the resolution to the House of Delegates, with whatever modest
adjustments may be needed to accommodate requests of cosponsors. The motion was adopted. The
report will be modified to include a statement about the extent of the need for loan repayment
assistance.
15.
Harrison Tweed Award
Ms. Shen Jaffee reported that 8 nominations for the award have been received. The subcommittee will
convene soon to evaluate those nominations, and will select recipients at that time.
16.
War on Poverty Anniversary
Amy Horton Newell joined the meeting to discuss the activities of the Commission on Homelessness and
Poverty and planned activities to recognize the 50th anniversary of the war on poverty. They have
proposed an Annual Meeting program on the role of government, law schools and the organized bar in
addressing poverty in our society. Invitations to speak at that program have been issued, and
acceptances have been received from Earl Johnson, Doug Besharov and Martha Bergmark, Paul
Weckstein.
Discussion at the event will focus on what is working, and what we should be doing differently, and how
to effectively address poverty in the current era.
17.
Resource Center for Access to Justice Initiatives
16
Standing Committee on Legal Aid and Indigent Defendants
Minutes of Meeting
April 10-11, 2014
Page 9
Ms. McBurney reported on the activities of the Resource Center. The Resource Center gathers data to
help support state resource development activities. She provided a preview of the resources data that
she has been collecting this year. The data indicates the various types of programs, with the largest
percentage of recipients (36%) being specialty programs. 24% of the programs are LSC-funded, and 19%
are stand-alone pro bono programs.
The total resources preliminarily estimated to be in the civil legal aid system for 2012 (2013 data
collection) are $1,338,000,000. This is an increase of 3.4% over the previous year, but remains a 2.7%
reduction from the 2010 high water mark of $1.375 million.
Ms. McBurney provided an update on other activities of the Resource Center. The number of states with
Access to Justice Commissions or similar entities has increased to 35. Mini-grants provided through the
Resource Center and with the support of the Public Welfare Foundation and the Kresge Foundation have
helped to stimulate formation of commissions and innovations by commissions. Many are engaging in
innovative programming that engages others in assisting to provide access to justice, such as public
libraries.
Ms. McBurney also reported that registrations for the 2014 Annual Meeting of State Access to Justice
Commission Chairs indicate that attendance will meet or surpass levels seen at previous meetings.
18.
Legal Services Corporation Funding & Activities Updates
Mr. Sandman reported on LSC funding prospects for FY2015. Early indications are that funding is likely to
be near the current funding level. There may be a small increase. The following fiscal year will present
much greater challenges. Pressure to make domestic program reductions will be intense; sequestration
will again resume, unless legislation is passed to change that.
He suggested that the budget request for FY2016 needs to be grounded in that reality. LSC clearly needs
a great deal more funding, but advocates lose credibility if they seek an unrealistic level of funding.
The LSC Pro Bono Innovation fund will soon be up and running. They hope to announce grant awards in
September 2014, and to make all grant awards by the end of the calendar year. LSC has held 8 webinars
to educate various groups about the availability of the grants. They hope to encourage applications so
that they can demonstrate to Congress that this is a good investment.
Members discussed the ABA recommendation to be made to the LSC Board Finance Committee
concerning a budget allocation to be sought in FY2016. Ms. Carmichael urged that ABA recommend a
number that is realistic, so that it is credible. She noted that over the past few years, the LSC
appropriation has been moving incrementally in a positive direction. She urged that ABA seek to support
continuing progress in that direction.
Mr. Greenberg agreed that LSC should seek a realistic appropriation. But he suggests that ABA could
serve a useful role by being a voice in support of what clients really need – an appropriation of 5 times
the current level. He believes that the ABA should submit testimony that recalls the purpose of LSC, to
17
Standing Committee on Legal Aid and Indigent Defendants
Minutes of Meeting
April 10-11, 2014
Page 10
help preserve domestic tranquility, and that to really achieve that purpose a very significant increase in
resources is needed. Ms. Bowman agreed. Justice Levy also agreed that it is appropriate for ABA to
articulate the true level of need. He reported that in Maine the long-ago blue-ribbon “Muskie
Commission” developed an estimate of the amount truly needed to provide legal services to the state’s
poor. That number is still cited today. He asked if the ABA recommendation would hold similar stature,
and suggested that if it would, the Committee should aspire to setting a more ambitious number.
Ms. Wood noted that the SCLAID recommendation to the LSC Board happens annually, and is not
imbued with the same level of credibility as the report in Maine.
Ms. Bergmark noted that one of the roles that the new organization Voices for Civil Justice could be to
educate and inspire in seeking additional federal resources for civil legal aid.
Mr. Greenberg suggested that LSC is in the best posture to determine what is politically realistic. He
suggested that the ABA letter should not specify an exact numerical amount that LSC should seek. He
said that ABA should instead use the opportunity to speak to LSC to simply describe the extent of the
need, and to talk about the overarching principles. Ms. Bergmark suggested that SCLAID could rely on
excellent reports in NY and elsewhere that articulate the full dimension of the need.
Justice Levy asked who SCLAID seeks to influence with its recommendation? What is the goal? He
suggested that pleas for more money based on need are not persuasive. Perhaps a more compelling
argument would be to focus on the positive return on investment that is achieved by spending money
on legal aid.
Mr. Greenberg suggested development of an op-ed piece telling a compelling story in the context of the
upcoming budget cycle in Congress.
Ms. Carmichael suggested that LSC is seeking from the ABA a specific number, and that SCLAID risks
being omitted from the process in future years if it fails to provide a specific recommendation.
Justice Levy noted that, in view of the goal of influencing LSC’s Board to seek an appropriate increase,
the ABA should provide a recommendation of a modest increase.
Discussion occurred suggesting that the ABA articulate a number that is the appropriate percentage of
the federal contribution to the entire legal aid industry. Mr. Brooks asked how that percentage would be
calculated.
Ms. Wood stated that she would take the matter under advisement and work with staff to develop a
communication on the issue to LSC.
Members discussed how they can best participate in and contribute to lobbying for LSC during future
ABA Day events. One potential contribution would be helping to stimulate participation by others in
members’ home states. It is particularly helpful to obtain participation by people of prominence.
18
Standing Committee on Legal Aid and Indigent Defendants
Minutes of Meeting
April 10-11, 2014
Page 11
19.
LSC Relations and Regulations
Ms. Bowman reported that the subcommittee has been grateful for the opportunity for dialogue about
a revised regulation governing private attorney involvement. The subcommittee will carefully examine
the proposed revised regulation and submit comments.
Ms. Bowman also noted that the subcommittee has been carefully following the developments
regarding the application of the regulation restricting lobbying activities to publication of an article
exploring legal issues. Ms. Wood stated that the Committee is very concerned about the overall chilling
effect of the advisory opinion recently issued addressing the publication of the article.
Mr. Sandman stated that this is an area of high risk, and great caution is appropriate. Any misstep by a
program is magnified by the reaction of Congress. He also noted that these types of controversies have
an impact for years following an incident. He agreed that LSC should provide positive guidance on what
is appropriate.
20.
Civil Legal Aid Communications Strategy
Ms. Bergmark reported:
1. Voices for Civil Justice has been working to examine the segmenting of messages – to
determine if the message about fundraising should be the same as the message about increasing pro
bono. They are embarking on a series of interviews with 5 groups of lawyers, to determine their
receptivity to various messages. She identified each group, and thanked the Committee for assisting
through the contributions of Ms. McBurney, who has been providing guidance on this task.
2. VCJ will have its first media training on April 25th, and will be developing a toolkit on
communications that will also then be available for the Equal Justice Conference. The results of the
training will assist in refinement of message points.
3. VCJ is seeking to build capacity of the system as a whole for media placement.
4. VCJ is also developing media placement strategies. It will be important to develop an
efficient system and pipeline.
21.
Civil Right to Counsel
Mr. Greenberg reported that the work of the subcommittee to develop a state-by-state manual
continues apace. The National Coalition for a Civil Right to Counsel has been instrumental in supporting
this project, and in supporting progress in several states in obtaining right to counsel.
22.
New Business
There was no new business to come before the committee.
19
Standing Committee on Legal Aid and Indigent Defendants
Minutes of Meeting
April 10-11, 2014
Page 12
23.
Future Meetings & Relevant Events
Future events and meetings were described for the benefit of the members.
There being no further business, the meeting was adjourned at 5:45 p.m. on Thursday April 11, 2014.
20
Standing Committee on Legal Aid and Indigent Defendants
Minutes of Meeting
April 10-11, 2014
Page 13
ACTION ITEMS
1.
Staff will work with Mr. Hanlon and Ms. Wood to continue to urge changes in the proposed
revised Criminal Justice Section Standards
2.
Mr. Hanlon and Mr. Seymour will use contacts in the National Conference of Bar Presidents to
seek an opportunity at a future meeting to make a presentation to that group regarding indigent
defense systemic issues.
3.
Staff will work with SCLAID and IDAG members to begin planning for a February 2015 Summit
on Indigent Defense in conjunction with the ABA Midyear Meeting.
4.
Ms. Essex and staff will work with Jamie Hawk to finalize a program proposal for the ABA
Annual Meeting on the 50th anniversary of the Criminal Justice Act.
5.
Staff are to work to obtain requisite approvals for ABA to provide an endorsement of public
defenders completion of a 2014 census.
6.
Staff will work with Ms. Wood to submit responses to the ABA Standing Committee on Ethics
and Professional Responsibility to its recent inquiry seeking additional information about a request
for an ethics opinion on an indigent defense question.
7.
Staff will finalize and file for House of Delegates consideration a resolution urging
continuation of the public service loan forgiveness program.
8.
In future years, SCLAID members will be called upon by Ms. Carmichael to help stimulate
attendance from each member’s state in ABA Day in Washington.
9.
Staff will work with the Subcommittee on LSC Relations & Regulations to develop comments
on LSC’s proposed revisions to its regulation on Private Attorney Involvement.
10.
Ms. Wood will work with staff to finalize a recommendation to LSC regarding its FY2016
budget request.
21
MEMORANDUM
TO:
Chair and Members, ABA Standing Committee on Legal Aid and Indigent
Defendants (SCLAID)
FROM:
Terry Brooks
DATE:
August 9, 2014
RE:
Resource Center for Access to Justice Initiatives
State Commission Network Developments
Steve Grumm, as Director of the Resource Center for Access to Justice Initiatives, provided
technical assistance to bar or judicial leaders in New Jersey, Virginia and Wisconsin regarding
access to justice efforts in those states. He also maintained close contacts with leaders in a
number of other states where efforts to institutionalize access to justice initiatives are
progressing, including Louisiana, Nebraska, and Pennsylvania. Steve published a bi-weekly
Access to Justice blog reporting on important developments across the nation.
Annual National Meeting of State Access to Justice Commission Chairs
The annual national meeting was held on May 3rd in Portland, OR, in conjunction with the
ABA-NLADA Equal Justice Conference. The meeting was attended by 150 state supreme court
chief and associate justices; access to justice commission chairs, members and staff; and bar
leaders and other interested individuals, who participated in plenary and breakout sessions
exploring new strategies for broadening access to justice. The sessions included the annual report
on the status of civil legal aid funding, compiled by Meredith McBurney. A summary of the
attendee evaluations of the meeting is attached. During the conference, a special invitation-only
session on state supreme court involvement in access to justice efforts was held for state supreme
court justices, facilitated by former New Hampshire Chief Justice John Broderick. The Equal
Justice Conference included several access to justice commission-related workshops, and the
popular, interactive state funding roundtable.
State Funding Summary/Update, 2014 State Legislative Sessions
Most states have provided final reports on their state legislative funding for 2014, and it has
turned out to be a good year. We saw a lot of activity for an “off-cycle” year (when not all
legislatures meet and/or take up budget issues), and most of it has been positive:
·
Fourteen states/jurisdictions have reported increases:
o Increases in appropriations in CO, DC, IA, ME, MA, NH, NY, UT, VT and WA.
o Increases in filing fees in CT, MS, PA, and WV.
·
The increases total approximately $25,000,000.
22
o The biggest increase, once again, was in NY, where Chief Judge Littman continued to be
instrumental in increasing the appropriation for civil legal aid, this year by an additional
$15,000,000.
o In terms of dollars per poor person, WV’s filing fee increase (estimated to generate
between $1,300,000 and $1,900,000) may be the highest, an increase that is a real “gamechanger” for Legal Aid of WV.
·
So far, the only decreases reported final have been in HI, where the legislature allowed the
appropriation to decline slightly since it has increased the filing fee fairly substantially the
year before, and Puerto Rico, which reported a decline in the appropriation of about 6%. A
third state has reported on a major threat to funding; we are awaiting final word on that.
Other Good Funding News
This also has been a good time period for other state-level funding initiatives:
·
Pro Hac Vice:
o WI – The Wisconsin Supreme Court increased the pro hac vice fee from $50 to $250,
effective July 1, 2014. Of the $200 increase, $100 will go to WISTAF (Wisconsin’s
IOLTA program) for distribution to legal aid programs and $50 will go to the Wisconsin
Access to Justice Commission. The IOLTA share is expected to be $80,000 and the
ATJC share $42-57,000.
·
Attorney Registration Fee Increase:
o IN - The Indiana Supreme Court approved an attorney registration fee increase of $35,
$16 of which will go to help shore up IOLTA grants. This is temporary funding that is
expected to generate $325,000 annually. The additional fee goes into effect as of the fall,
2014 payments.
·
Cy Pres:
o NE - The NE legislature approved a cy pres rule, directing that any remaining class action
residuals be paid to legal aid, unless the court orders otherwise to further the purposes of
the underlying cause of action.
o CT - The Connecticut Supreme Court approved a rule change stating that any class action
residuals that are not otherwise designated at the end of a case shall be disbursed to the
organization administering the IOLTA program for the purpose of funding those
organizations that provide legal services for the poor in Connecticut.
o MT – The Montana Supreme Court has put out for comment a proposed cy pres rule that
would designate that not less than 50% of any class action residuals would be paid to the
Montana Justice Foundation to fund programs that provide civil legal aid to the poor.
Other Related Activities/Developments
23
·
Lake Research Partners, working with “Voices for Civil Justice,” has conducted targeted
research on communicating with attorneys about civil legal aid: In 2013, in work funded by
the Public Welfare Foundation, Lake Research Partners surveyed voters to determine
attitudes about legal aid. This year, PWF and Voices for Civil Justice asked Lake to take a
look at the opinions of attorneys. Meredith worked on this project with Martha Bergmark,
reviewing survey documents and working with legal aid programs to identify attorneys to
participate in telephone surveys. The findings were presented for the first time at the MIE
Fundraising Conference on July 24, and will soon be posted on the Voices for Civil Justice
website.
·
Updated documents for ABA website: Resource development documents for the nonpassword protected site have been updated and posted. Revised resource development
documents for the password protected site are being finalized and should be posted soon.
24
Selected Results of Survey of ATJ Meeting Participants
Last Modified: 05/13/2014
2. Affiliation:
#
1
3
4
5
6
7
8
9
10
12
Answer
Private
Attorney Volunteer
State Supreme
Court Justice
Other Judge
Law School
ATJ
Commission
Staff
Other Bar Staff
Other Court
Staff
Legal Aid
Director, Staff
IOLTA or
Other State
Funder
Other
(describe)
Total
25
Response
%
8
17%
9
20%
6
2
13%
4%
8
17%
1
2%
0
0%
4
9%
3
7%
5
11%
46
100%
3. Experience with ATJ Issues (how would you rate
yourself):
#
1
2
3
Answer
Experienced
Moderately
Experienced
New to these
Issues
Total
Response
22
%
48%
12
26%
12
26%
46
100%
4. Attended previous ATJ Chairs Meeting:
#
1
2
Answer
No
Yes
Total
Response
18
29
47
26
%
38%
62%
100%
5. Attended full Equal Justice Conference:
#
1
2
Answer
No
Yes
Response
15
31
27
%
33%
67%
6. Do you like that we combine lunch with the peer state
breakout in order to end the meeting by 3pm, or would you
rather lunch was a plenary, with a separate peer state
breakout?
#
1
2
3
4
Answer
Prefer
combination of
lunch and peer
state breakout to
maximize time
Prefer plenary
lunch with
separate peer
state breakout
even if day goes
longer
Prefer plenary
lunch with
separate peer
state breakout
only if other
programming is
shortened to
keep 3pm time
No
preference/other
Total
28
Response
%
32
73%
2
5%
4
9%
6
14%
44
100%
7. Overall success of meeting:
#
1
2
3
4
5
Answer
Poor
Fair
Good
Very Good
Excellent
Total
Response
0
2
5
18
17
42
29
%
0%
5%
12%
43%
40%
100%
8. Morning Plenary Feedback:
#
1
2
3
4
5
Answer
Poor
Fair
Good
Very Good
Excellent
Total
Response
1
2
8
13
20
44
30
%
2%
5%
18%
30%
45%
100%
13. Closing Plenary:
#
7
8
9
10
11
Answer
Poor
Fair
Good
Very Good
Excellent
Total
Response
1
2
7
12
9
31
31
%
3%
6%
23%
39%
29%
100%
14. Comments/Suggestions:
Text Response
1) Great program. Opening Plenary the topic too many but great info. No water in room and on
tables though, which was an issue.
2) An amazing and exceptionally well organized conference. The sessions were packed with
excellent content and the presenters were outstanding. The opportunities for networking and
sharing resources and insights with other participants was worth its weight in gold. I found
myself writing as fast as I could to make notes about new ideas and suggestions from other
participants. I was struck by the fact that the ABA provides the only forum for gathering the
disparate groups and initiates that make up the access to justice efforts across the country. It is
a vital line of communication and sharing of resources, and the ABA is to be commended for
championing this cause by hosting this convocation. I was also chagrined by the fact that I
was not an ABA member. How could I not be a member of a group that provides this vital
contribution to the cause of justice for all? I immediately applied for membership and am now a
proud member of the ABA JD Appellate Judges Conference. ( Hon. Andrew M. Mead)
3) Written materials, even if brief, for all sessions, preferably in advance. (Kenneth Schorr)
4) Portland was an excellent venue. This choice helped make this an excellent conference. Mr.
Grumm - Great job, Thanks! (Brent Benjamin)
5) Thank you for the wonderful program. The EJC has been great, too - as always! (Thank you
for always holding these meeting in wonderful cities!) Unfortunately, I had to leave early.
(Walter Eggers)
6) Keep structure as is or similar. Some type of master handout on what states are doing.
7) Need to offer new ideas and information not rehash over and over and over the old and well
known.
8) Table talks - could be a little longer to allow real answers.
9) Either have a facilitator for poor states or have a _________lunch.
10) Collapse two table talks into one additional breakout session in a separate room; the table
talks are rushed and noisy. Loved the haikus!
11) The round table for the Supreme Court Justices was poor (in past year it has been great). A
"facilitator" who talks more than all the other participants put together is not a facilitator.
Endless pontificating is no substitute for practical ideas. The failure to have each participant
introductions at the round table diminishes the value of the whole event.
12) We need a rural track for the general conference - diversity in presenters away from only
larger metropolitan areas.
13) Would have been good to know full scope of Agenda prior to attending. Evening reception
could have been better with opportunity to get to know people.
14) Like the short sessions - a lot of great info.
32
15) Some info shared was repetitive with that offered during EJC (inevitable?). More time for
breakouts and table talk would be good. Haiku exercise was great ending.
16) Excellent Job!
17) Well done as usual. Regarding the Friday afternoon meeting, the advance __________
from each state were really helpful and that was a good idea. Next time, though, we should
have a professional facilitator - not a former (or current) judge who has a personal interest in the
topic. The facilitator did most of the talking. While he is obviously passionate and
knowledgeable, the discussion could have been more productive.
Thank you for all your
work on this important subject. I think the ABA does a better job at coordinating a national
conversation than a National ATJC could ever do! (Beth Baker)
18) For lunch peer support - need circle w/ u-shape. Very difficult to speak when have five
round tables. PLEASE consider ATJ staff breakout on Friday instead of Wednesday. Too long.
Miss the "Name that State".
19) Afternoon sessions lack depth because of the (format?) and number of topics.
20) I know you want to disseminate breakout info but it is too much info to share in too short a
time. Maybe spend more time on this and less in AM plenary. Loved the haiku!!
(Marsha M. Mansfield)
21) Will think about it. (Gerry Singsen)
22) It's always good to interact and get ideas from members of other ATJ Commissions.
23) Re: AM Plenary - Same topics - Communications presentation for at least the 3rd time.
Also, need a better breakfast!!! Re: Closing Plenary - force people to be brief after their
reporting back remarks.... Making connections is the best part of the day...so the morning
plenary should be shorter. Also, the lack of sound proofing in rooms for topical breakouts
made is somewhat difficult to hear.
24) ATJ Commissions are now in existence in a majority of states. This conference is the
primary opportunity for Commission staff to meet, exchange ideas, and "recharge" our batteries.
Please consider setting a meeting time for directors (Friday afternoon) for ATJ commission staff.
This would dovetail nicely to the chairs' meeting on Saturday. A focus for Commission Directors
would be greatly appreciated.
25) Shorten the number of presenters at opening plenary. Regular breakfasts would work
better if not scattered around tables with no ability to see rest of the group.
26) Identity/breakdown scales based on: 1) Voluntary v. Mandatory Bar 2) Elected or merit
selected Judges 3) ATJ Commission (if this is one) how appointed and funded
(Charles Garcia)
NOTE: Additional, specific evaluations of individual breakout sessions omitted here, but
available to staff for planning purposes for future meetings.
33
Access to Justice Commission Expansion Project: Key Accomplishments
What were the goals of the Access to Justice Commission Expansion Project?
·
To strengthen and expand the national network of Access to Justice Commissions by:
o Promoting the creation of new Commissions and strengthen existing Commissions.
o Encouraging Commissions to expand the range of their initiatives and pursue innovative
approaches.
o Strengthening the national network and infrastructure that support Commissions
What has the Access to Justice Commission Expansion Project accomplished?
The total number of active Commissions has risen from 26 to 34, with several more in the
pipeline.
·
·
·
Eight new ATJ Commissions created March 2012-July 2014:
o Arizona
o Illinois
o Montana
o Delaware
o Indiana
o Virginia
o Puerto Rico
o Oklahoma
Two-three additional Commissions are likely by the end of 2014.
Several other states are interested and pursing possibilities.
New Commissions have gotten off to a strong start as a result of stakeholder and planning events.
·
·
Launch and planning processes funded by grant):
o Arizona (regional forums identified needs and approaches)
o Illinois (statewide ATJ Conference launched Commission)
o Montana (strategic planning process launched Commission)
o Indiana (strategic planning process launched Commission)
o Virginia (ATJ Task Force identified needs and approaches)
o Oklahoma (pending)
o New Hampshire(strategic planning process to re-launch Commission)
Even where Commissions have not yet been launched, the process has engaged stakeholders
and led to a more collaborative and state-wide approach.
o Ohio (Supreme Court ATJ Task Force to identify needs and approaches)
o Rhode Island (stakeholder planning process and report to guide Commission)
o Virgin Islands (stakeholder planning process to guide Commission)
o Pennsylvania (recommendations developed at grant-funded public hearings)
o Georgia (stakeholder planning process to identify needs and work plan)
34
There has been a major increase in engagement and support for the ATJ Commission model from
state Chief Justices, state Supreme Courts in general, and national organizations. The Commission
model is now broadly accepted and respected. The increased engagement and support has
promoted new Commissions and made existing Commissions stronger and more effective.
·
·
·
·
·
·
Prior to the project, the National Meeting of State ATJ Chairs was typically attended by Supreme
Court justices from 8-10 states. For the 2012, 2013, and 2014 meetings, when grant-funded
travel fellowships were available, the number of Supreme Court representatives attending rose
variously to the high 20s and low 30s. Overall, attendance has increased from around 130 to
around 170.
A cadre of state Chief Justices who are actively engaged in promoting the ATJ Commission
model and initiatives has developed at the national level, including current Chiefs Eric
Washington (DC), Mark Recktenwald (HI), Jonathan Lippman (NY),Chase Rogers (CT), Ralph
Gants (MA), Scott Bales (AZ), and Nathan Hecht (TX). In addition, Justices who served as Chiefs
during the grant period and were actively engaged included Janice Holder (TN), Thomas Kilbride
(IL), Petra Jimenez Maes (NM), and Carol Hunstein (GA). There is an even broader group of
Associate Justices who are working directly with the Commission in their state.
In August 2013, the Conference of Chief Justices and Conference of Chief Court Administrators
passed a resolution commending their members for progress resulting from their Access to
Justice initiatives and reaffirming their support for the aspirational goal that every state and
territory have an active Access to Justice commission or comparable body; and specifically
commending the Public Welfare Foundation, along with the Kresge Foundation, the National
Center for State Courts, and the American Bar Association, for their collaborative efforts toward
these goals.
The Conference of Chief Justices presented an educational session on ATJ Commissions at its
winter 2013 meeting; the CCJ/COSCA Access and Fairness Committee regularly discusses
Commissions and their initiatives at its meetings, which draw Chiefs and Administrators who do
not serve on the committee as well as members
The 2014 edition of Trends in State Courts, a prominent publication from the National Center for
State Courts, includes an article by Texas Chief Justice Nathan Hecht and Illinois Justice
(immediate past Chief Justice) Thomas Kilbride discussing the success of the Access to Justice
Commission model and the lessons learned by the Commissions in their states.
The Commission model is no longer identified as an initiative being promoted by the ABA and
legal aid programs but rather as something that national court leadership is behind and that can
be helpful to the courts.
ATJ Commissions have expanded the scope of their activities and developed innovation models
that can be replicated in other states.
·
14 innovative projects, each with a set of resources and an overall assessment to guide other
states in potential replication (see list).
35
The national support infrastructure for ATJ Commissions has grown stronger. New resources are
available to make Commissions stronger and more effective.
·
·
·
·
Increased, ongoing networking of state ATJ leaders, through a series of regular conference calls
on critical and emerging ATJ issues, each of which produced a set of resource documents (e.g.
language access, uniform and interactive court forms, veterans, law-school based, engaging
private funders in invest in legal aid funding, judicial code of ethics, incubators for law firms
serving people of moderate income, limited scope representation, state administrative agency
justice).
Increased networking of ATJ staff through an active list serv, monthly conference calls, and
educational sessions and networking events. Staff know one another and regularly share
questions and ideas.
Resource documents that summarize the information and insights developed by state and
national ATJ leaders over the past decade:
o Vision Statement for ATJ Commissions
o Hallmarks of Effective Commissions
o Designing and Launching a New Commission
o Complete list of initiatives undertaken by Commissions, with examples and links to
further information
o National Center for State Courts Access Brief on ATJ Commissions.
New resource documents to encourage and assist Commissions in evaluating their efforts:
o Self-Evaluation Tool for ATJ Commissions, with model survey for members and
stakeholders.
o Planning Tool for use in developing strategies to respond to areas of need.
o Framework for Outcomes Evaluation for ATJ Commissions.
36
July 15, 2014
ABA Access to Justice Commission Expansion Project
Innovation Grants
Reports Received
o Alabama Access to Justice Commission: web site where self-represented litigants can
receive free counseling from pro bono attorneys.
o Colorado Access to Justice Commission: toolkit for attorneys on business models for
providing services to people of moderate income; amended rules and new forms for
limited scope representation.
o Hawaii Access to Justice Commission: development of a uniform process for
requesting an interpreter, with forms and informational brochure; translation key-selfhelp documents; language access training and tools for attorneys representing people
with limited English proficiency; judicial training and tools on implicit cultural bias.
o Maine Justice Action Group: development of a coalition including legal aid, libraries,
and pro bono attorneys to develop public libraries as point of access for legal
assistance and information; development of resources for libraries; “Lawyers in
Libraries” event on Law Day, where people can consult with pro bono attorneys.
o Massachusetts Access to Justice Commission: feasibility study on fundraising outside
the legal community; launch of project.
o Mississippi Access to Justice Commission: conference on delivery partnerships with
health care, social services, and other new partners, leading to new initiatives
involving schools of social work, health care providers.
o Washington Access to Justice Board: development of best practices on automated
court records and filing (“E-filing”), to ensure access for self-represented and lowincome people.
o North Carolina Access to Justice Commission: new web site with state-specific legal
resources and referral information for veterans and pro bono attorneys representing
veterans.
o Tennessee Access to Justice Commission: pro bono outreach projects established
through faith-based organizations.
37
o Wyoming Access to Justice Commission: pilot Skype-based remote law offices for
civil legal aid at rural sites, as part of a broad redesign, coordination and expansion of
the state’s legal aid delivery system.
Pending
o Arkansas Access to Justice Commission: document assembly software for use in pilot
assisted self-represented litigant clinics with attorneys working on a limited scope
basis.
o Connecticut Access to Justice Commission: outreach to expand donor base for new
fellowship program placing new law school graduates in legal aid programs.
o New Mexico Access to Justice Commission: unified on-line legal aid intake system
with the capacity to refer applicants to the appropriate provider and level of service
necessary to deal with their problem (“triage”).
o Vermont Access to Justice Coalition: on-line referral tool from the state’s legal aid
intake web site to the Vermont Bar Association’s lawyer referral service, coordinated
with the development of a panel of attorneys available to provide reduced-fee, limited
scope representation.
38
AMERICAN BAR ASSOCIATION
Standing Committee on Legal Aid
and Indigent Defendants
Chair
Lisa C. Wood
Foley Hoag LLP
Seaport World Trade Ctr West
155 Seaport Boulevard
Boston, MA 02210-2600
[email protected]
Members
Jacquelynne Bowman
Boston, MA
Maureen Essex
Baltimore, MD
Daniel Goyette
Louisville, KY
Danny Greenberg
New York, NY
321 N. Clark Street
Chicago, Illinois 60654-7598
www.abalegalservices.org
MEMORANDUM
To:
From: Lisa Wood, Chair, ABA Standing Committee on Legal Aid
and Indigent Defendants
Date: June 2, 2014
Re:
Stephen Hanlon
St. Louis, MO
Seymour James, Jr.
New York, NY
Hon. Thomas Kilbride
Rock Island, IL
Hon. Jon Levy
Portland, ME
Ada Shen-Jaffe
Seattle, WA
Drucilla Stender Ramey
San Francisco, CA
Board of Governors Liaison
Josephine McNeil
West Newton, MA
Committee Counsel
Terry Brooks
312-988-5747
[email protected]
Associate Counsel
Bev Groudine
312-988-5771
[email protected]
Assistant Counsel
Tori Jo Wible
312-988-5753
[email protected]
Finance Committee, Board of Directors, Legal Services Corporation
ABA Recommendation for FY 2016 LSC Budget Request
This memorandum sets forth the recommendation of the Standing Committee on
Legal Aid and Indigent Defendants (SCLAID), on behalf of the American Bar
Association, regarding the Legal Services Corporation’s budget request for FY
2016. We appreciate the opportunity to submit this recommendation, and look
forward to working with LSC to obtain adequate funding for the important work
of the Corporation and its grantees.
As the members of your Committee and the LSC Board of Directors are well
aware, resources are wholly inadequate at all levels across the nation to provide
“Equal justice under law.” Study after credible study has verified these facts. LSC
has never been provided with sufficient budget resources to respond to more than
a tiny fraction of the legal needs of eligible poor persons. Other resources,
including an increasing level of pro bono contributions by private lawyers, state
funding for legal aid, Interest on Lawyer Trust Account programs and other
devices are insufficient as more than modest supplements. Nothing short of an
enormous increase in the federal appropriation for LSC will produce resources to
address the shortfall.
At the same time, the LSC Board, and organizations such as the ABA which
advocate on behalf of the Corporation, must face budget realities. In a world
where the rhetoric about the importance of justice was matched by action, a
budget appropriation for LSC approaching five times the current allocation would
be enacted. But we recognize that competing federal priorities and limited federal
resources counsel a more moderate request. We therefore propose that the LSC
Board strive to simply keep abreast of inflation. Last year, after carefully
balancing the overwhelming need for civil legal services against the federal
government’s budgetary realities, LSC sought an appropriation for FY2015 of
$486 million. The US Bureau of Labor Statistics reported on May 15, 2014 that
the inflation rate for the prior 12 months was 2.0%. Applying that basis for
adjustment of LSC’s prior request, we urge that LSC seek an appropriation of no
less than $495.7 million.
39
Finance Committee, Board of Directors, Legal Services Corporation
June 2, 2014
Page 2
Many Indicators Support This Request
Funding for LSC has fallen very far behind inflation
In 2014, we recognize the fortieth anniversary of the creation of the Legal Services Corporation.
Yet the program’s current level of funding, $365 million, is just $65 million more than LSC’s
appropriation in 1980. If adjusted for inflation, the $300 million funding provided for LSC in
1980 would be over $850 million today.
There have been dramatic increases in poverty during the past decade
The Census Bureau has reported significant increases in poverty during the past decade. Today,
nearly 30% of the U.S. population is financially eligible for LSC services. Research has
demonstrated that approximately 50% of low-income households face legal needs at any point in
time. Research has also shown that about half of those households will have more than one legal
problem. This increasing poverty is certain to result in an increased demand for legal help as
more people fall into poverty and suffer problems with employment, housing and income
maintenance. Those legal problems, and the need for services, will persist for some time, and this
burgeoning demand will continue to impact the LSC-funded network of provider-programs.
Pro se representation continues to increase, amid cutbacks in court services for selfrepresented persons
The constraints on resources to support civil legal aid services have led to large numbers of pro
se litigants appearing in state and federal courts. National data indicate that in family law
matters, between 60 and 90 percent of the cases involve at least one self-represented party. In
New York, nearly two million litigants self-represent each year. California has over 150,000
divorce cases per year. At least one party is unrepresented in 70 percent of them. A New
Hampshire report indicates that in 70 percent of the domestic relations matters there, at least one
party is self-represented. In Oregon, about seven out of ten litigants in family law matters selfrepresent. According to a Utah study conducted in 2005, both sides in debt collection cases were
represented in only three percent of the cases. In addition, 81 percent of respondents in divorce
cases in Utah self-represent, and in evictions, 97 percent of respondents self-represented.
This trend toward involuntary self-representation has been compounded by significant decreases
in the budgets for state and federal courts, causing in many places temporary closures and
suspension of trials or support services for self-represented litigants. These diminished services
impact everyone who uses the courts to resolve problems – businesses, veterans, victims of
domestic violence, landlords and tenants.
LSC-funded legal aid programs lead or participate in efforts in many communities to provide
assistance to self-represented litigants. Further, by providing representation in some matters,
LSC ameliorates the burdens that are otherwise placed on courts in attempting to serve
unrepresented persons. But, with current resources, LSC-funded legal aid programs are unable to
provide needed representation to many who need such help, thus leaving many applicants for
service to fend for themselves in court.
40
Finance Committee, Board of Directors, Legal Services Corporation
June 2, 2014
Page 3
Other sources of funding for legal aid provide unreliable supplements to federal funding
Federal funding available through LSC provides the foundation for the nation’s civil legal aid
delivery system, and LSC funding catalyzes the development of other funding sources. Board
and staff leaders of legal aid programs, recognizing the inadequacy of LSC funds to meet the
critical legal needs of poor people, work diligently to increase other resources to supplement
their LSC funds. While state and local resources will never be able to replace the loss of LSC
dollars, state legislators, attorneys, and other private and public funders across the nation
recognize the importance of legal aid and have stepped up to at least partially fill the gap.
Despite these efforts, forty percent of the states had less funding for legal aid in 2012 (the most
recent year for which data is available) than they did in 2011.
With the leadership of the organized bar, IOLTA programs have been established in every state,
the District of Columbia and the Virgin Islands, and in many years has been second only to LSC
in the amount of revenue generated for legal aid programs. However, falling interest rates and
the reduction in legal business and therefore in the principal balances in lawyer trust accounts
have caused overall IOLTA grants to legal aid nationwide to plunge by 62% since 2008, when
those grants were at their height. The decline in aggregate IOLTA grants to legal aid from 2011
to 2012 was a staggering 19%.
State legislatures in many states have increased funding to help fill the gap created by reductions
in LSC funding. Legislatures in 47 states and Puerto Rico either provide funding directly
through appropriations or court filing fees or authorize local jurisdictions to do so. However,
growth in this area has been difficult in recent years because of the financial crisis faced by
almost every state legislature. In spite of the economic difficulties, state legislative funding
nationwide increased by 7% in 2012. While that sounds like a significant increase, it merely
returns this critical funding source to its 2011 level.
Local legal aid programs also continue to work hard to increase revenue from private sources,
and these sources have increased during this difficult economic period. For example, private
donations from the legal community increased by 6% from 2011 to 2012 and foundation support
increased by 3%. It must be noted, however, that these increases, starting from much lower base
amounts and comprising a much smaller portion of revenue in the overall system, cannot begin
to compensate for the loss of federal funding.
It is important to note that any aggregate increases mask a serious problem of disparities from
state to state. Relying more and more on state and local funding means that programs in states
with greater resources – e.g. where state governments have recovered more quickly from the
recent economic crisis, where there are more attorneys and/or private foundations per capita –
are better able to cope with the inadequate funding from LSC. The states in the Deep South are
particularly negatively impacted.
LSC is the only funding source that provides funding to every state and jurisdiction, based on a
formula that allows for an equal measure of justice for every state. The poor and disadvantaged
in every state are helped equally, and every community benefits from the more just society that is
the result of providing equal access to justice.
41
Finance Committee, Board of Directors, Legal Services Corporation
June 2, 2014
Page 4
Supplementary Contributions Made Through Pro Bono by Private Lawyers
LSC funding also provides important infrastructure for donated pro bono services by private
lawyers throughout the nation. LSC funding provides the institutional structure for intake and
placement of pro bono cases, and the staffed legal aid offices provide pro bono attorneys with
access to expert legal advice as they assume responsibility for work in unfamiliar areas of law.
Continuation of a vibrant pro bono system depends upon LSC receiving adequate funding.
The ABA continues to work closely with LSC to buttress and expand pro bono efforts by private
lawyers, and in particular to foster more pro bono service to poor individuals with routine legal
matters. We are heartened by, and support, the creation in FY2014 of a new fund to stimulate
innovation and creativity in the use of pro bono as an adjunct to staffed civil legal aid services.
All who work within the delivery system, however, recognize that pro bono provides only a
supplement that cannot replace the network of LSC-funded staff legal aid offices, and that a
robust pro bono system is dependent on the infrastructure provided by LSC-funded programs.
For that reason, we urge that additional resources provided for the purpose of stimulating pro
bono innovation and services should not come at the expense of reductions to the amounts
allocated for basic field services.
Attracting and Retaining Legal Services Lawyers
LSC also provides an important foundation and support for other critical aspects of the delivery
system. This includes support for attracting and especially retaining high-quality lawyers to/in
legal services careers. The ABA has joined with LSC and many state bar foundations and
educational institutions in focusing attention on the impact of educational debt on the ability of
young lawyers to enter and remain in public service. Federal funding for loan repayment
assistance is no longer available through other government programs for civil legal services
lawyers. We therefore urge that LSC continue to request at least $1 million in funds for its
program providing loan repayment assistance for selected lawyers in LSC-funded programs.
Building a Strong Technological Infrastructure
Similarly, we endorse the continuation of the “Technology Initiative Grants” (TIG) program,
enabling the civil legal assistance community to move forward with improving and expanding
the technological infrastructure for serving clients, reaching into rural communities, etc. We urge
the Board to include within its FY2016 budget request an amount that will permit continued
development of a strong technological infrastructure within the legal services community.
Conclusion
As the LSC Board prepares its 2016 budget request to the Congress, we urge the Corporation to
advocate for an inflationary increase in federal support for legal services for the poor. We believe
that a request of $495.7 million is reasonable for FY2016 in light of the above, and that an
appropriation at this level would bring LSC a step closer to fulfilling its role in promoting equal
access to justice. The American Bar Association will continue to work closely with LSC to
vigorously support increased funding for LSC.
42
LSC
Legal Seru¡ces Corporat¡on
America's Partner For Equal lustice
MEMORANDUM
TO:
Finance Committee
FROM:
James J. Sandman, President
DATE:
June25,2014
SUBJECT: Management's Recommendation for LSC's FY 2016 Budget Request
LSC management recommends that the Finance Committee consider a budget request of $486.9
million for FY 2016-the same amount that the Board of Directors adopted for the past two years,
but with an increase of $900,000 for the Office of Inspector General (OIG), per their request.
This recommendation reflects a balancing of the overwhelming need for civil legal services
against budgetary realities. In light of budget pressures on the federal government, the amount of
the President's budget request for LSC for FY 2015, and the results to date from the FY 2015
appropriations process, we recommend maintaining our budget request for FY 2016 at
approximately the same level as our request for FY 2015. As discussed in greater detail below,
however, the need for civil legal aid would justify afar larger request.
Last year's budget recommendation of $486 million was based in part on our assessment of the
funding necessary to restore service to the 2007 level, before the recession began. The most
recent data from the Census Bureau show that the number of people living in poverty has
increased since last year and will increase by another 900,000 people between 2014 and20l6.
(Appendix I shows the population eligible for LSC-funded legal aid from 2000 through 2016.)
In many service areas, the census adjustment has reduced LSC funding even though the size of
the eligible poverty population has increased. If we were to use the same methodology as last
year, basic field funding would have to increase to $495.7 million - a $160 million increase
(48%) over LSC's current budget and$44.4 million, or l0o/o, over our recommendation. Our
total FY 2016 request would increase to $531 million. We believe a request of that magnitude
would not be realistic.
We also believe that adopting a request any lower than last year would be unreasonable given the
magnitude of the need for legal services. Need has increased, not decreased. And a lower
request would conflict with our efforts to achieve the first two goals of LSC's strategic plan: "to
maximize the availability, quality, and effectiveness of the civil legal services that [our] grantees
provide to eligible low-income individuals" and "to become a leading voice for civil legal
services for poor Americans."
Our recommendation reflects our most recent experience with the White House, the House of
Representatives, and the Senate Appropriations Committee. The President's FY 2014 and FY
2015 budget requests for LSC were flat: $430 million for both years. The Senate Appropriations
Committee's FY 2015 budget for LSC is $400 million, $30 million below the President's request
1
43
and $86 million (17.7%) below LSC's FY 2015 request. The gap between the House FY 2015
budget and LSC's FY 2015 request is $136 million (28%).
Ft'2015
Butlget
n
C
Ft'2014
riation
F\',20r5
President's Ask
$335.700.000
$3.400.000
s1,000,000
$18,000,000
$2,500,000
$4.3s0.000
$39s.000.000
$4,800,000
$1,000,000
$19,500,000
$4.900.000
$4,350,000
F\',2015
Housc Passed
Senate Approp.
Committee
Fì'201ó
LSC
uest
Basic
Field
TIG
LRAP
MGO
Pro Bono
OIG
Total
$319,650.000
$4,000,000
$1,000,000
$18,000,000
$3,000,000
$4.3s0.000
s367,000,000
$4,000,000
$1,000,000
$19.000.000
$s.000,000
$4,000,000
s365,000,000 s43r),000.000 s350.000.000 s.100,000,000
$451,300,000
$5,000,000
$1.000.000
$19,s00,000
$s,000,000
$5,100,000
s-ttt6.900.001)
Under our recommendation, basic f,reld grants continue to represent the largest component of
LSC's overall budget. Consistent with previous years, LSC management recommends that
approximately 92.7%o of the budget be allocated to basic field grants for FY 2016. Four percent,
or $19.5 million, is for administrative costs, including compliance and oversight, and 1% is for
LSC's Inspector General. Consistent with LSC's appropriation request for FY 2015, our
recommended FY 2016 request includes $5 million for the Pro Bono Innovation Fund-the grant
program to encourage innovations in pro bono legal services proposed by the Pro Bono Task
Force. The budget also includes $5 million for LSC's Technology Initiative Grants (TIG).
On June 9ú, members of the public presented their recommendations for LSC's FY 2016 budget
request to the Finance Committee. The following organizations submitted recommendations:
The National Legal Aid and Defender Association (NLADA) recommends $580 million
for FY 2016, an increase over last year's recommendation of $560 million, based on the
continuing growth in the eligible client population and inflation.
O
The Standing Committee on Legal Aid and Indigent Defendants (SCLAID) of the
American Bar Association recommends $495.7 million. This number reflects LSC's FY
2015 budget request adjusted for the U.S. Bureau of Labor Statistics inflation rate of
2.7%o for the past 12 months.
a
The Conference of Chief Justices (CCJ) and the Conference of State Court
Administrators (COSCA), jointly recommend that LSC request a significant increase in
LSC funding to fulfill our nation's promise of "equal justice under la\ü."
a
The Washington Council of Lawyers notes that "status quo levels of LSC funding are
inadequate even to address the needs of easier times" and recommends that the FY 2016
LSC budget be increased to meet the increased demand for legal services.
Copies of the public's recommendations are attached as Appendix 2
2
44
In the following sections, we describe the need for civil legal services. We recognize and
emphasize that the facts would clearly support a much higher request than we are
recommending. We then review the current state of congressional support for LSC funding and
the basis for our recommendation that our request be the same as last year's.
More Americans Are Eligible for Legal Aid Than at Any Time in LSC's History
LSC estimates that the number of persons financially eligible for LSC-funded legal aid-those
with incomes at or below 125% of the federal poverty guideline (currently $14,588 for an
individual and $29,813 for a family of four)-will continue to grow between now and FY 2016
Based on the most recent information available from the Bureau of the Census and the
Congressional Budget Office, we estimate that 67.4 million Americans, or 21.3% of the
population, will be financially eligible for services at LSC grantees in FY 2016, a32%;o increase
since 2007.1 (Appendix 3 provides an analysis of the models used to project increases in the
poverty population from 2012-2016.)
Eligible Poverty Popu lation
Year
Eligible
Population
Percentagc
of
Population
2007
2008
2009
2010
20tt
2012
50,864,000
51,988,000
56,430,000
60,443,000
63,324,000
63,569,000
2013* 65,474,000
2014* 66,488,000
2015* 67,001,000
2016* 67,359,000
Percentage
I
80
nc rease
Eligible
Population
70
60
17.3%
17.6%
2.2%
18.9%
8.s%
19.6%
7.1%
20.3%
4.8%
20.8%
0.4%
2r.2%
3.0%
21.4%
1.5%
21.4%
0.7%
21.3%
05%
50
Ë 40
E
30
32%
ç
:
E
zo
q
o
n
lncrease*
c
Ê
E
q
(o
10
0
2001
*Estimated
2016.
+Est mated
While the overall poverty population is at an all-time high, and is projected to continue to climb,
LSC funding for legal aid organizations has declined dramatically since 201O-both in absolute
terms and in inflation-adjusted dollars. LSC received its largest appropriation, $420 million, in
FY 2010. LSC is cunently funded at $365 million for FY 2014, al5Yo decrease from FY 2010.
If LSC's FY 1995 appropriation of $400 million were adjusted to keep pace with inflation, it
I
Sou."., U.S. Census Bureau, 2007-2}l2American Community Survey l-Year Estimates, Table Sl70l: Poverty
Status in the Past 12 Months; Emily Monea and Isabel Sawhill, An Updøte to"Simulating the Effect of the'Great
Recession' on Poverty," Brookings Institution, September 13,2011, Figure A. U.S. Census Bureau 2012 National
Population Projections: Summary Tables, Middle Series.
J
45
would be 5622 million today. (Appendix 4 shows LSC's funding history from 1995 to 2014,
both in absolute and inflation-adjusted dollars.) Non-LSC funding for LSC grantees in 2013 was
approximately the same as in 2010. (Appendix 5 shows the historical data on grantees' LSC and
non-LSC funding; Appendix 6 shows the sources of non-LSC funding.)
As the chart below shows, total grantee funding (LSC + non-LSC funding) per eligible person
has declined steadily over the past seven years, decreasing by 18.7% in absolute dollars and
27 .6% in infl ation-adjusted dollars.
lnflation-
LSC + Non-LSC|
Actual S /
Eligihle Person
Ad.iusted S /
EI
Person-
2007
$16.62
$18.67
2008
$16.41
sr7.76
2009
$16.0s
sr7.43
2010
$
1s.88
$16.97
20tt
$14.7s
2012
$
13.88
$14.08
2013
$13.52
$13.s2
Year
$
15.28
Non-LSC funding varies widely from jurisdiction to jurisdiction. And it is important to
recognize that non-LSC funding is often not fungible with LSC funding. Much non-LSC
funding is restricted to use for only specified purposes and has strict limits on the amount that
can be used for management and administration. LSC funding, by contrast, can be used to
address the full range of locally identified needs, and we want our grantees to have robust
management. In 2013, grantees in 13 states and two territories saw at least a l5% decline in nonLSC funding. Also, 14 grantees exhausted c¿ìrryover from2012 to 2013;50 grantees no longer
have any reserves.
2
LSC and non-LSC funding adjusted for inflation in 2013 dollars: U.S. Department of Labor, Bureau of Labor
. Eligible persons 2007-2012:U.5.
Statistics, CPI Inflation Calculator,
Census Bureau, 2007-2012 American Community Survey l-Year Estimates, Table Sl70l: Poverty Status in the Past
l2 Months; U.S. Census Bureau 2012 National Population Projections: Summary Tables, Middle Series. LSC
Projections for 2013 client eligible population using LSC estimates based on: Emily Monea and Isabel Sawhill, lr¡
Update to"simulating the Effect of the'Great Recession' on Poverty," Brookings Institution, September 13,2011,
. Unemployment:CBO, CBO's
FigureA(
Baseline Economic Forecast - February 2014 Baseline Projections,(
). Total
Population: U.S. Census, 2012 National Population Projections - Table 1; Poverty Population, U.S. Bureau of the
Census, Current Population Survey, Annual Social and Economic Supplements.
4
46
As the chart below shows, 43 of our 134 grantees depend on LSC for 50o/o or more of their
funding. Twenty-one grantees receive 600/o or more of their funding from LSC and have been
particularly hard-hit by reductions in LSC's grants.
Percentage of Funding Received from LSC (2013)
35
30
E2s
o
ôo
9zo
À
o
b1s
¡¡
E
2r0
5
1
0
ro-L9.9% 20-29.9% 30-39.9% 40-49s% s0-s9.9% 60-69.9% 70-79.9% 80-89.9% 90-t00%
For many grantees, funding reductions have been compounded by the census-based grant
reapportionment that took fuIl effect in January of 2014. Thirty jurisdictions have experienced
census-based reductions in LSC funding. Sixteen have experienced cuts of at least llYo, and l0
have experienced cuts of more than 20o/o. Twenty-five of the 30 jurisdictions experiencing
census-based funding reductions saw increases in the absolute size of their poverty populations
between 2000 and 20II; only their share of the U.S. poverty population declined. (Appendix 7
shows the changes in the size of each state's poverty population since 2000 and the percentage
change in LSC funding based on the full census adjustment.)
Funding Reductions Have Jeopardized Access to Justice
Funding cuts from federal, state, local, and private sources from 2010 to 2013 forced LSC
grantees to lay off staff, reduce hours, and turn away greater numbers of clients in need. Because
ofshrinking resources, grantees have had to reduce the types ofassistance they provide to
clients. For example, some grantees are able to assist domestic violence victims only when
children are involved, or assist homeowners in a foreclosure matter only when an eviction is
imminent.
Significant funding cuts have resulted in reduced staff, ofhce, and case closure levels from 2010
to 2013. There is a clear correlation between the numbers of cases closed by LSC grantees and
their available funding. In20l3, basic field grants to LSC grantees dropped by 19% from the
high of $420 million in 2010. Cases closed by grantees during the same time period decreased
by the same percentage. ln20l3, grantees closed a total of 759,000 cases, down by 173,000
cases from 2010. (Appendices 8 & 9 show the total number of cases closed from 2008 to 2013
and compare the number of cases closed in relation to grantee funding for the same time period).
5
47
Although total cases closed dropped from 2010 to 2013, pro bono cases increased from 7I,444 to
79,189 during the same time period. Pro bono cases now represent I0/% of total overall cases
by LSC grantees, the highest in LSC's history. Although basic field funding has increased for
FY 2014, it is still 15% below the 2010 level.
The following chart shows the relationship between grantee staffing levels and cases closed. The
number of cases closed by grantee staff (excluding private attorney involvement [PAI] cases) 679,811 - was the lowest in recent years as staffrng levels also declined.
Year
Attorneys Paralegals
Support Staff
LSC Cases Ckrsed
(Excluding
2008
2009
2010
20tl
2012
2013
"/" Change
4403
4505
1659
3293
1687
4692
t732
3328
3464
4513
4233
1648
t507
420r
-4.60/0
l'.{l)
795,987
816,703
824,785
797,162
1477
3291
3041
2921
-lloÂ
-11.3"/"
-14.6"/"
710,264
679,811
LSC conducted a survey of all grantees in December 2013 to determine the impact of funding
changes on their operations. The overwhelming majority of the programs, 77%io,reported that
more people are being denied access to justice. Nearly 50% of the grantees reduced staff in
2013. (Appendix 10 shows LSC grantee staffing levels from 2010 to2013, and Appendix 11
shows a comparison of basic field grant funding from 2008 to 2013 to the number of attorneys
and cases.) Nearly 50% of the grantees reduced client intake services. The staffing reductions
have reduced the number of clients served and eroded grantees' capacity to provide legal
assistance. For example,
.
.
o
.
Legal Aid Society of Orange County in California lost 30% of program staff since2012.
LegalAid Foundation of Los Angeles lost2D%o of program staff since 2012.
Northeast New Jersey Legal Services Corporation lost more than 50% of staff in the past
three years, resulting in 6,000 fewer clients served.
Legal Services NYC lost 28%o of staff since 2011.
Many LSC grantees have had to close offrces, particularly in rural areas. Today, there are fewer
than 800 LSC-funded legal aid offices nationwide-the lowest number in LSC's history. In
some places, clients now have to drive hundreds of miles to see a lawyer. For example:
o
.
o
An offrce closure in Alabama affected 50,000 eligible clients in rural communities.
Program staff in Georgia drive up to 200 miles to assist clients in the south-central region
because ofofflrce closures affecting ten counties.
A rural office in Virginia that had been open for 35 years closed in 2013. Clients in the
area now must travel 90 minutes to get assistance.
6
48
Despite office closures and staff reductions, LSC grantees have worked to leverage their
resources through pro bono partnerships, technology, and other creative delivery systems to
maintain client services.
For example, New Mexico Legal Aid created a statewide online triage tool to identify and
reconìmend the best source of assistance depending on a person's circumstances, such as
location, income, and language. The system will direct users to the resources and services
provided by New Mexico Legal Aid and five other legal aid programs in the state in addition to
court, self-help, and pro bono resources.
The Virginia Supreme Court convened the first Virginia Pro Bono Summit in 2010, and has held
a total of three summits to date. Because of a rule change in2011, more than 800 certified inhouse attorneys in Virginia can now provide assistance to low-income individuals and families.
The 2010 Virginia Pro Bono Summit included the VA Chief Justice and Supreme Court.
Subsequently, Capital One partnered with Central Virginia Legal Aid Society to help create
JusticeServer, a database to make pro bono easier across the state. This partnership is built on
top of an existing structure - the Richmond Bar Foundation's Firms in Service. The Foundation
is the steward of the database which allows legal service providers to share and place pro bono
cases for lawyers interested in pro bono to access.
Legal Aid of North Carolina is expanding connections to rural areas and pro bono attorneys
throughout the state by adopting a cloud-based video-conferencing system to connect the
program's 22 offices into one integrated system.
The Cost of Returning to Pre-Recession Staffing Levels
Our FY 2016 budget recommendation maintains the same basic funding request as last year.
LSC's FY 2015 justification was based on returning to the same level of service that LSC
grantees provided in2007-the last year before the recession began and the size of the
population eligible for LSC-funded services began to increase dramatically. Using that same
methodology would significantly increase the basic field request for FY 2016.
I
I'ear
2007
2008
2009
20r0
2OII
20t2
2013
2014
nfl ation-Adjusted llasic
Field Funding
s377,921,450
Eligible Persons
$365,635,800
$403,597,380
50,864,000
51,988,000
56,460,000
$428,970,680
$398,619,s80
60,443,000
63,324,000
$333,384,830
s321,729,200
$335,700,000
63,569,000
65,474,000
66,488,000
S/EI
ble Person
s7.43
$7.03
$7.1 s
$7.10
$6.2e
ss.24
$4.91
$s.0s
7
49
Ln2007, basic field funding of $378 million was $7.43 per eligible person in inflation-adjusted
dollars.3 Basic field funding per eligible person is now only $5.05 in constant dollars. If we were
to retum to FY 2007 funding per eligible person in FY 2016, basic field funding would be
5495.7 million - or an increase of $160 million (48%) over the FY 2014 budget. Using that
analysis, the total FY 2016 request would be $531 million. We do not believe it is feasible to
make that request. Instead, we recommend that LSC's FY 2016 request stay consistent with our
FY 2015 request in light of current budget realities.
Congressional Support for LSC Funding
The federal government is under enorrnous pressure to bring down the deficit and limit spending.
Congressional disagreement on overall government spending led to a 17 -day government
shutdown last fall. The House and Senate subsequently reached a bipartisan budget agreement in
December 2013 that established overall spending amounts for FY 2014 and eliminated
sequestration for FY 2014 and FY 2015.
FY 2014
Congress passed an omnibus appropriations bill for FY 2014 in January 2014 that included $365
million for LSC, an increase of $25 million, or 7 percent, from the previous year. LSC's FY
2014 funding split the difference between the amounts approved by the House and Senate
Commerce, Justice, Science, and Related Agencies (CJS) Appropriations Subcommittees last
year. This is the same amount appropriated in FY 2013 before sequestration and rescissions were
applied to the appropriation. The FY 2014 appropriation included $2.5 million for a new Pro
Bono Innovation Fund. This new fund will support creative projects that promote and enhance
pro bono initiatives throughout the country.
FY 2015
Both the House and the Senate Appropriations Committee have taken action on the FY 2015 CJS
appropriations bills. In May, the House of Representatives passed the Commerce, Justice,
Science and Related Agencies appropriations bill with $350 million for LSC, a decrease of $15
million from FY 20l4btft a $50 million increase over last year's House-approved level. During
debate on the House Floor, amendments to change LSC's House funding level were defeated.
An amendment to eliminate funding for LSC failed by a vote of 116-290. An amendment to
increase LSC's funding by $15 million failed by a vote of lT-238.
3
Basic held funding adjusted for inflation in 2013 dollars :United States Department of Labor, Bureau of Labor
Statistics, CPI Inflation Calculator (www.bls.sov/datalinflation calculator.htm); Eligible persons 2007-201l: U.S.
Bureau of the Census, Current Population Survey, Annual Social and Economic Supplements, Table 6. People
Below 125 Percent ofPoverty Level and the Near Poor: 1959 to 201 I (for persons below l25Yo poverty 1994-2011).
LSC Projections for 2013 and 2014 client eligible populations using LSC estimates based on: Monea and Sawhill,
Simulating the Effect of the "Great Recession" on Poverty (www.brookings.edr.r/researchlpapersl2009/O9/10poverty-monea-sawhill). Unemployment: CBO, CBO's Baseline Economic Forecast - February 2013 Baseline
Projections, (www.cbo.govþublication/a3902).; Total Population: US Census,2012 National Population
Projections - Table l; Poverty Population, U.S. Bureau of the Census, Current Population Survey, Annual Social and
Economic Supplements.
8
50
The Senate Appropriations Committee approved its FY 2015 CJS bill earlier this month. The bill
includes $400 million for LSC, an increase of $35 million from FY 2014, but $30 million less
than the Committee approved last year.
Conclusion
A growing client-eligible population, coupled with significant funding cuts, decreasing revenues
from some non-LSC funding sources, and census-based adjustments for a significant number of
grantees, despite increasing poverty rates in their service areas - has made it impossible for LSC
grantees to continue to do more with less. LSC grantees have been forced to reduce services,
close fewer cases, and reduce staff. We believe that LSC actually needs a substantial increase
from its current funding level to be able to support basic civil legal services for low-income
Americans. Although we believe the need for civil legal services justifies a significant increase
over LSC's appropriations request for FY 2015, our recommendation to maintain the same
request level as last year reflects our recognition ofcurrent budgetary realities.
Thefollowing are explanations of the sectìons of the recommended budgetfor LSC in addìtíon
to basicJield grønts.
Pro Bono Innovation Fund
LSC management recommends requesting $5 million for FY 2016-the same amount requested
for the past two years. For FY 2014, Congress appropriated $2.5 million for the Pro Bono
Innovation Fund (PBIF). For FY 2015, the House of Representatives has voted to approve $2.5
million for the PBIF and the Senate Appropriations Committee has voted to approve $5 million.
Projects funded under this program will develop, test, and replicate innovative pro bono efforts
that will enable LSC grant recipients to expand clients' access to high-quality legal assistance.
The grant criteria require both innovation (new ideas or new applications of existing best
practices) and replicability (likelihood that the innovation, if successful, could be implemented
by other legal aid programs).
In January 2014, immediately after the first funding for the PBIF became available, LSC formed
an intemal working group to coordinate planning for and implementation of the new grant
program. LSC has conducted six outreach webinars to publicize the grant program and to seek
input on its development. We issued a Notice of Funds Availability on April 22,the online
application process began May 27, and the application deadline for the initial grants is June 30.
V/è expect tô announce the awards in mid-September at LSC's 40th anniversary events.
Management and Grants Oversight
Congress appropriated $18 million for Management and Grants Oversight (MGO) for FY 2014
The House of Representatives has approved $18 million for MGO for FY 2015, and the Senate
Appropriations Committee has voted to approve $19 million. Last year, the Board approved a
request of 519,500,000 for MGO. We recommend the same amount for FY 2016.
9
51
The proposed MGO budget would allow LSC to continue to improve fiscal, compliance, and
programmatic oversight of LSC grantees by making more visits to grantees and expanding
training. We also plan to continue projects to improve and upgrade our information technology
systems, website functionality, and communications.
As detailed in the chart below, our proposed budget would allow LSC to maintain approved
staflrng levels for FY 2014. We do not anticipate increasing staff in FY 2016.
LSC Staffing By Department:
Comparison of FY 2013 and Estimated FY 2015 Staffing Levels
FY201{
Staffing*
F\'2016 Staffing
Estimates
Differencc
F\ l4 and FYIó
EO
7
7
0
OLA
7
7
0
GRPA
7
7
0
l)epartment
HR
6
6
0
OFAS
10
10
0
OIT
8
I
0
OPP
28
28
0
OIM
5
5
0
OCE
27
27
0
0
0
0
30
30
0
OIG
*
levels
ected as of 9-30-2014.
Technolory Initiative Grants
The Technology Initiative Grants (TIG) program is funded at $3.45 million for FY 2014. Both
the House of Representatives and the Senate Appropriations Committee have voted to increase
the funding to $4 million for FY 2015. For the past three years, the Board has approved a request
of $5million. We reconìmend the same request for FY 2016.
Since its start in 2000, TIG has funded more than 525 projects totaling more than $40 million.
With these grants, LSC grantees have been able to build a foundation for better service delivery
that includes statewide websites, enhanced capacity for intake and case management systems,
and automated forms to support clients, staff, and pro bono efforts. With that foundation in place,
LSC is poised to further expand access to justice through technology innovations.
Continuation of the TIG program and the development of resources for the poor to take
advantage of mobile devices in particular is an important tool in expanding access. Mobile
devices are the fastest-growing access low-income persons have to the Internet, and we intend to
10
52
work with our grantees to be sure that websites and automated forms are optimized for use on
mobile devices. The use of text messaging also needs to be integrated into delivery systems to
provide legal information on demand and reminders for appointments, deadlines, and court
hearings.
In20l3, LSC awarded 33 grants to support a variety of technology initiatives, including tools to
guide self-represented individuals through complex legal procedures, online support for pro bono
attorneys, and improved access to legal assistance for people in remote areas. Several of the
projects implement the recommendations of LSC's Report of The Summit on the Use of
Technologt to Expand Access to Justice.
Herbert S. Garten Loan Repayment Assistance Program
Since 2005, LSC has requested $lmillion each year for the Herbert S. Garten Loan Repayment
Assistance Program (LRAP). We recommend the same amount for FY 2016.
Started as a pilot program, LRAP has enabled LSC grantees to recruit and retain high-quality
attorneys. Past evaluations of the program show that large law school loan debts for legal aid
attorneys, coupled with low salaries, constitute major barriers for grantees in hiring and retaining
lawyers. The evaluations found that the availability of LRAP mitigates the economic hardships
confronting grantee attorneys and increases their ability and willingness to stay with legal aid
organizations.
At current levels, LSC can provide loan repayment assistance to only half of the applicants who
apply for grants. In2014, LSC received 130 new applications from attorneys at 58 grantee
offices in 33 states and Puerto Rico. The average law school debt for first-year applicants was
$147,913.67. Of the total new applications, 60 applicants, or 46Yo,were denied because of
insufficient LRAP funding. Turning away nearly half of the applicants who need these grants
impedes grantees' recruitment and retention efforts. The maximum grant allowed for each
recipient is S16,800.
The National Association for Law
Median Starting Salaries frrr Public Sector Attornevs
Placement (NLAP) released its
('ategon'
Salan
Public Sector and Public Interest
Local Prosecutors
$5 1,1 41
Attorney Salary report for 2014
Public Defenders
s50,400
two weeks ago. The report finds
Other Public Interest Lawyers
$46,000
civil legal aid lawyers continue to
be the lowest paid group in the
Civil Legal Aid Attorneys
s44.636
legal profession, eaming less than
public defenders and other public interest lawyers. Entry-level legal aid lawyers eatn a median
salary of 544,636, while attorneys at public service organizations eam $46,000 and public
defenders eam $50,400.4 Meanwhile, the average amount of law school debt has increased in the
past year. According to Bloomberg BusinessWeek, the average amount of law school debt has
a
Pubtic Sector & Pubtic Interest Attorney Salary Report, National Association for Law Placement, June 2014.
11
53
increased to $140,616 in2014 from $120,000 in 20ßs. It takes a civil legal aid attomey five
years to earn the same salary as an entry-level public defender. The chart above shows the salary
ranges for public sector attorneys.
Office of Inspector General
(fhis section was prepared by the OIG and included without change.)
For FY 2016, the LSC OIG is requesting an appropriation of $5.1 million or an increase of
$750,000 more than the FY 2014 appropriated amount of $4.35 million. This is the hrst budget
request increase from the OIG in seven years (since FY 2009). The request comes at the end of a
multi-year operational plan that spent down carryover funds in support of OIG operations while
not increasing annual budget requests. For perspective, this requested increase is in line with
relative growth in the MGO request over those seven years (15%).
This funding amount is critical to bring about stability in future OIG planning, appropriations,
workforce and operations and will enable the OIG to pursue its congressionally mandated dual
missions of promoting efficiency and effectiveness in LSC programs and operations and limiting
opportunities for fraud, waste and abuse of LSC funds.
The requested funds will enable the OIG to pursue its risk guided work and program priorities
while responding timely and effectively to requests from Congress, the LSC Board and LSC
management. The OIG will continue to review LSC grantees' operations with an eye toward
improving accountability for LSC funds while simultaneously maintaining a focus on internal
LSC operations. The OIG will also continuously identify opportunities for LSC to be more
effective and efficient in carrying out its statutory mission by providing LSC management with
current information relevant to grant competition and administration.
With an appropriation of $5.1 million the OIG will continue its program to review the adequacy
of grant recipients selected internal controls related to specific operations and oversight including
program expenditures and fiscal accountability. Also, the OIG will be able to continue its
comprehensive program of audit quality control reviews, which is intended to ensure that the
work of grantees' independent public accountants meets all relevant auditing standards. The
funds will support the OIG's ongoing efforts to combat fraud, waste, and abuse through a wide
range of fraud and compliance investigations; outreach and educational initiatives such as fraud
arwareness briefings, webinars and assessments; and by operating a nationwide hotline for
reporting suspected malfeasance. Moreover, the funds will enable the OIG to continue its
program of grantee regulatory vulnerability reviews designed to improve grantees' regulatory
compliance. The requested funds will allow the OIG to continue upgrading its internal
information management systems to improve the sharing of information regarding LSC grantees
and the performance of OIG audits and investigations. In addition, based upon its recent
identification of critical IT security vulnerabilities at LSC, the requested amount will allow the
OIG to expand its information security review to LSC grantees.
5
Clark, Patrick. Debt Is Piling Up Fasterfor Most Graduqte Students-but Not MBAs. Bloomberg Business Week.
Bloomberg, March 25, 2014.
t2
54
As required by the Inspector General Act of 1978, as amended, I, Jeffrey E. Schanz, Inspector
General of the Legal Services Corporation, certiff that the request includes $60,000 to satisff
foreseeable OIG professional training needs for FY 2016. The request also includes $15,000 for
the OIG's projected pro rata contribution in support of the Council of Inspectors General on
Integrity and Effi ciency.
The OIG requires the requested funds to maintain its staffing level, adequately prioritize its
resources to address the most signihcant and relevant issues and provide timely reporting to LSC
and the Congress, with the shared goal of increasing accountability and public confidence in the
LSC's expenditure of federal funds.
13
55
Appendix
1
Americans Eligible for tsc-Funded Legal Aid
Defined as those living below 125"Â of the federal poverty level
70,000
Ctì
b
N
qì
Þ
20tt
20L2
UJ
r.tl
-ot
50,000
(Jl
_o
æ
lJl
(l'
gl
æ
æ
2007
2008
Þ
Þ
w
Ctì
w
-o
Þ
Þ
Þ
(Jl
Oì
CN
60,000
(^)
(Jl
cn
_o
Þ
Þ
æ
ql
ì.¡
o
o
ts
qì
ì.¡
w
(Jl
(o
ro
w
o
40,000
30,000
20,000
10,000
0
2009
2010
2013*
2014*
2015*
2016+
*Projections.
U.S. Census Bureau, 2007-2012 American Community Survey l-Year Estimates, Table
Sl70l: Poverty Status in the Past 12 Months; Emily Monea
Brookingslnstitution,September13,20ll,FigureA;
andlsabel Sawhill, AnUpdateto"SimulatingtheEffectofthe'GreatRecession'onPoverty,"
U.S. Census Bureau 2012 National Population Projections: Summary Tables, Middle Series.
t4
56
Appendix 2
Public Comments Regarding LSC's
FY 2016 Appropriations Request
l5
57
MEMORANDUM
To:
Robert Grey, Chair,
From
Dennis Groenenboom, Chair, NLADA Civil Policy Group
Steven Eppler-Epstein, Chair, NLADA Resources Committee
Don Saunders, Vice-President for Civil Legal Services
Date:
June 2,2OL4
Re:
NLADA Recommendation for FY 20L6 LSC Funding Request
LSC
Finance Committee; John Levi, Chair, Board of Directors
This memorandum is presented to you on behalf of the National Legal Aid & Defender Association
(NLADA) Board of Directors and Civil Policy Group in response to your notice seeking input regarding
LSC's request to Congress for funding for Fiscal Year 2016. We appreciate your invitation to the public
and the civil legal aid field and welcome the opportunity to emphasize the critical need of NLADA's civil
members for significant increases in federal support for legal services.
The challenges facing LSC grantees in responding to the legal needs of the millions of people and
families living in poverty in this country are overwhelming. The confluence of the lingering effects of the
deep recession with the stagnation of the overall financial foundation upon which our legal aid system is
built makes it more important than ever that LSC send a strong signal to the Administration and
Congress of the need for federal support for civil legal assistance. As a result, NIADA urges LSC to seek
an appropriation of at least $580 m¡ll¡on for FY 2016. This figure reflects a slight increase over our FY
20L5 recommendation of 5560 million, based upon the continuing growth in the eligible client
population and cost-of-living increases.
We submit this request to you with recognition that the need for federal support for legal services is
much, much greater than this amount. However, we are acutely aware that LSC must present its
request for FY 20L6 in an intensively competitive environment for very limited discretionary federal
funding. Yet, as the leadership of LSC has eloquently pointed out over the last year in support of its
current request of $a86 million, justice and fairness are not optional values in our country. As the
leading voice articulating the critical need for federal support for civiljustice, you must continue to
strongly assert that our democracy's promise of equal justice remains a paramount priority of our
nation, particularly in light of the enormous challenges facing your grantees.
While LSC has made significant progress in expanding the reach and accessibility of the legal aid system
through its work with technology and pro bono innovation, no one can deny that the existing resources
available among your grantees to meet the legal needs of 67 million potential clients with potentially
devastating problems are woefully short of what is needed.
Appx.2-page1
58
ln this time of economic growth at the top of the income scale, a growing number of Americans are
facing a future of increasing concern. One in five Americans --67 million or 2O% of the American
population--- are at or below 1-25 percent of the federal poverty line.
The legal aid world is a stark reflection of this reality. As the number of individuals falling through the
economic safety net increases, so too does the need for legal aid. Today there is an inverse relationship
between the declining resources available to help vulnerable populations in need of legal assistance and
the increasing need for legal services for people living in poverty.
LSC's own statistical analysis indicates the very stark realities - in terms of staff recruitment, morale and
capacity - which have resulted from the continuing stagnation of funding available to grantees. Many
legal aid offices have closed and thousands of positions have been eliminated. At risk is the very notion
of equal access to justice.
Comparing the current level of federal support to the level provided in L98L under the "minimum
access" formula that was used in the formative days of LSC shows just how far congressional support for
the civil justice system has diminished over the years. This analysis indicates that federal support
relative to need for the basic infrastructure of the legal aid system in this country has fallen precipitously
using today's dollars. The relative level of funding has declined by 300% since 1981, while the number
of eligible clients has grown nearly 50% since 1981.
grantees have responded to these funding challenges with innovative new delivery systems. Courts
and many legal aid programs have developed ways to help the exploding number of self-represented
litigants understand the law, processes and court procedures. They have worked vigorously in many
states to expand the quality and impact of state-based access to justice commissions aimed at bringing a
wide array of stakeholders to the table to support the delivery of quality, effective civil legal assistance.
LSC
lndeed, the nation's justice gap would be far greater except for the fact that the original idea of funding
a minimum legal aid infrastructure through LSC at the federal level has led to significant, though
disparate, growth in other revenue sources that add to the numbers of LSC- grantee attorneys in the
field. However, there can be no mistake that a fundamental commitment of adequate resources at the
federal level is the critical building block upon which the development of these other revenue streams
within state justice communities has been constructed.
Strong federal support for LSC is particularly important in regions that have historically lacked other
resources to support their civil justice systems. That federal support is particularly critical on the lndian
reservation, in the Deep South and Rocky Mountain regions, and for politically disfavored populations in
need of justice. The quality of the justice system should not be dependent upon where one lives in a
country founded on principles of equality and justice under the law.
An investment in LSC ensures fairness in our justice system and results in significant social
returns for both clients and society
As recent public polling data suggests, the federal investment in LSC and its grantees pays dividends in
ensuring that our system of justice is available not just for those of means who can afford access to a
lawyer.
LSC
lawyers on reservations, in the fields and across urban America serve as a visible
2
Appx.2 -page2
59
embodiment of the principles of justice that form the foundation of our social contract.
Your grantees serue as a critical and unique resource to help poor people and their families escape the
shackles of poverty and become self-sufficient members of society. ln these extraordinarily difficult
fiscal times, the federal investment in legal aid ensures significant positive outcomes for both clients and
our society. Access to civil legal assistance empowers low-income people to take control of their lives
and vastly increases the health and vitality of the communities in which they live.
The breadth of matters handled by LSC-grantees that have a profound impact in addressing serious
human need is extraord¡nary. Every day legal aid lawyers in the United States assist people by:
o
¡
o
¡
.
Preserving homes from illegal evictions or foreclosures;
Assuring that domestic violence survivors live in homes free of violence;
lncreasing household income by helping those who have lost their jobs access unemployment
insurance, food stamps, and other needed public assistance;
Protecting families and the elderly from unscrupulous contractors or debt collectors;
Helping individuals with disab¡l¡ties gain to access Supplemental Security lncome (SSl), medical
o
insurance and/or care; or
Providing a homeless veteran with the opportunity to obtain housing.
ln addressingthese, and many other issues, legalaid providers have learned firsthand the stark reality
that children are the fastest growing segment of the "new poo(' , those who have recently fallen into
poverty. The 2013 American Community Survey indicates that2L.8% of children in the United States
now live in poverty. Child poverty rates have increased dramatically at the same time that the poverty
rates of the elderly have been dropping.
Legal aid programs address a number of issues that help ensure that every young person has a shot at
success later in life. Civil legal services directly ¡mpacts young people by:
o
Keeping families in housing/ warding off unfair foreclosures. A homeless child is very likely to
suffer dire consequences
o
-
health, education, even ability to sleep well can be affected;
lmproving housing conditions. When substandard housing is improved, toxins are eliminated
and the health (i.e., intensity and rates of asthma attacks and amounts of medications required
are all reduced) of everyone in the household improves dramatically;
o
Getting kids access to appropriate special education when needed. This intervention
dramatically increases the likelihood that a child can graduate from secondary schools and go
onto college success, which could make all the difference for their future economic mobility;
.
Helping victims of domestic violence achieve safety. Providing civil legal services to domestic
violence victims has a direct impact on the rate of victimization, lowering the rates of domestic
violence greatly;
¡
Providing a safe environment. A child exposed to violence in the home is much more likely to
suffer mental and physical health problems, miss days of school and perform poorly in school.
These factors place the child at greater risk of falling into or staying in poverty. Domestic
violence also raises the health care costs to a family, thereby forcing family resources to be used
to pay for these additional health consequences of the violence.
J
Appx.2-page3
60
Legal aid offices are often the only provider of a full range of legal services to low income individuals,
families and vulnerable populations in the communities that they serve. ln addition to representation in
individual cases, legal aid is part of a network of agencies providing services to the community's most
vulnerable members. Many community organizations such as homeless shelters, domestic violence
shelters, veteran organizations, housing counselors, child protective service agencies, case managers,
and others rely on legal aid to help with legal barriers and emergencies to achieve positive outcomes for
low income families.
Many of your grantees now measure outcomes achieved for the families that they assist. Statistics from
legal aid programs throughout the country demonstrate the positive results realized for clients from
theiraccesstolegalservices. Thesestudiessuggestthataddressinganyoftheselegalissuesnotonly
helps keep the individual client from falling further into poverty and despair, but also saves the
communities in which these individuals live the high cost of providing shelter, increased social services
and acute care that often becomes necessary when legal intervention cannot be secured.
A recent report by Community Services Analysis, LLC (CSACO) illustrated many additional benefits to the
community from the work of the LSC grantees in Arizona. lncreased property values from reduced
numbers of foreclosures, long-term employment of lower-income individuals due to enforcement of
employment rights and significant savings on emergency housing are just a few of the many additional
benefits shown by the study.
During 2011, the CSACO study found that Arizona Legal Aid Services closed 3,522legal matters resulting
¡n 53,167,599 in immediate direct financial community benefits and S13,350 ,240 in long-term
consequential financial benefits.
The study found that the S13,L91,509 provided to Arizona programs in 20LL created a net value of
584,328,327 to the communities they serve. This figure represents a social return on investment of
6390/o. ln other words, for every SL of investment in Arizona LSC providers, a value of $6.39 was realized
in these communities.
Many other states have conducted studies of the economic impact of legal aid (collated at:
). The most recent one
of these studies in North Carolina found over St8 m¡ll¡on in economic benefits derived from the
investment in civil legal aid (
).
NLADA certainly welcomes, and will support in any way we can, the efforts of LSC and others to develop
better data defining the actual need for legal assistance among the nation's poverty population.
However, there can be no doubt, based upon existing evidence and the clear experiences of your
grantees in the field, that the current demand far exceeds the capacity of our system to respond. A
request of S580 million, while providing much needed assistance to your grantees and the clients they
serve, would not begin to address the need for resources in the field.
SPECI FICS
BUDGETARY ISSU ES
There are several specific issues that NLADA would like to recommend with respect to various lines
4
Appx.2 -page4
61
within the
FY
20L6 request.
for
basic field services (including agricultural worker and Native
American grants) we believe that the great majority of LSC funding should be granted to programs to
provide those services to clients rather than be earmarked for any special projects. Local control over
Because of the overwhelming need
priorities and expenditures has been an enduring principle that has brought great strength, flexibility
and efficiency to the legal aid system over the past thirty-nine years. We urge you to continue to honor
this principle as a general rule as you proceed in your administration of LSC.
However, we ask that funds be specifically allocated for three continuing LSC priorities 1) dedicated
funding for agricultural worker representation; 2) continuation of the Herbert S. Garten Loan
Repayment Assistance Program; and 3)Technology lnitiative Grants.
a
Dedicated Agricultural Worker Funding. We are aware that the LSC board is reviewing the
allocation of grants to meet the special needs of delivering legal services to agricultural workers.
NLADA strongly believes in the vital importance and necessity of continuing these grants and
updating the data sources necessary to d¡stribute them more appropriately under current
agricultural realities.
Experience of legal aid lawyers in the field has shown that the legal needs of agricultural workers
are unique, because they are especially vulnerable to exploitative recruitment for employment,
have the lowest wages, are linguistically and culturally isolated and live in the worst housing in
the United States. They are often isolated on farms and are subject to a very specialized field of
law, requiring significant substantive specialization.
We look forward to working with LSC to update the data underlying the distribution of these
specialized funds and strongly support their continuation.
a
Herbert S. Garten Loan Repayment Assistance Program (LRAP). NLADA remains committed to
finding ways to assist legal aid lawyers in meeting the often staggering law school debt they
face. We think that the reports to date of the Garten LRAP program indicate that it can play an
important role in retaining high quality lawyers in LSC grantee programs. Additionally, you are
aware that Congress has chosen to discontinue funding for the Civil Legal Assistance Attorney
LRAP program and it appears unlikely that such funding will be forthcoming in the immediate
future. The future of the 10-year loan forgiveness component of the College Cost Reduction and
Affordability Act program has also come under recent scrutiny.
Therefore, we urge you to seek funding of at least St m¡ll¡on for loan repayment assistance for
FY 201_6.
Technology Initiative Grants. NLADA has worked in partnership with LSC and its grantees in
helping the civil legal assistance community make great strides in using technological innovation
to expand the reach and quality of legal services. The LSC Technology lnitiative Grants (TlG)
have played a vital role in helping states and local programs to improve their ability to use
technology to better serve their clients and to develop a national infrastructure necessary to
support state and local efforts. Therefore, we strongly support the continuation of the
Technology lnitiative Grant program. We recommend that the tY 2OL6 appropriation request
5
Appx.2-page5
62
contain at least 53.450 million for TIG
As we have suggested in prior years' memoranda, we also remain concerned about certain specific areas
related to delivery that remain in need of study by
LSC:
a
Native American Special Grants. NLADA continues to request that LSC study methods to
address the significant disparities in funding for Native American programs and to help develop
strategies to improve the delivery of services to Native Americans.
a
Training and Other Assistance for Substantive Advocacy. We remain concerned about the
need for training, professional development and advocacy support within the legal aid
community. ln today's environment of shrinking budgets, these issues are often neglected.
Failure to invest in professional growth and expertise is both a short term mistake and a long
term threat to the entire vitality of the system. NLADA would like to continue discussions with
LSC about how it can work with the field to reinforce the importance of training and support and
strengthen the capacity ofthe current system to meet these needs.
a
Pro Bono Innovations Fund. Pro bono remains a critical component of the delivery system for
civil legal assistance for the poor. We applaud the leadership on the issue shown by LSC, the Pro
Bono Task Force and congressional leaders supportive of pro bono. NLADA supports the
concept behind the Pro Bono lnnovations Fund line and expects that sign¡ficant creative thinking
will be generated by the Fund, similar to that generated over the years by the Technology
lnitiatives Grant program. We recommend that LSC evaluate the best practices in pro bono
innovation generated by the fund and give consideration over time to building the innovative
component into the already-existingI2.5% of basic field funding already dedicated to
supporting pro bono initiatives.
NLADA sincerely appreciates the support that every member of the LSC Board of Directors and staff
have shown for advancing federal support for LSC. We recognize and commend your work with the
Congress and the White House during the entirety of your time in office. We stand willing to support
your efforts in any way we can.
6
Appx.2-page6
63
Defendi ng liberty
AMERICAN BAR ASSOCIATION
Standing Committee on Legal Aid
and lndigent Defendants
Ghair
Lisa C. Wood
Foley Hoag LLP
Seaport World Trade Ctr West
155 Seaport Boulevard
321 N. Clark Street
Chicago, lllinois 60654-7598
wrww. a bale
galservices.org
Boston, M402210-2600
[email protected]
Members
Jacquelynne Bowman
Boston, MA
Maureen Essex
Baltimore, MD
MEMORANDUM
To
From: Lisa Wood, Chair, ABA Standing Committee on Legal Aid
and Indigent Defendants
Daniel Goyette
Louisville, KY
Danny Greenberg
NewYork, NY
Stephen Hanlon
St. Louis, MO
Seymour James, Jr.
New York, NY
Hon. Thomas Kilbride
Rock lsland, lL
Hon. Jon Levy
Portland, ME
Ada Shen-Jaffe
Seattle, WA
Drucilla Stender Ramey
San Francisco, CA
Board of Governors Liaison
Josephine McNeil
West Newton, MA
Committee Counsel
Terry Brooks
3'12-988-5747
terry. [email protected]
Associate Counsel
Bev Groudine
312-988-5771
[email protected]
Assistant Gounsel
Tori Jo Wible
2-988-5753
[email protected]
31
Finance Committee, Board of Directors, Legal Services Corporation
Date: June2,2014
Re:
ABA Recommendation for FY 2016 LSC Budget Request
This memorandum sets forth the recommendation of the Standing Committee on
Legal Aid and lndigent Defendants (SCLAID), on behalf of the American Bar
Association, regarding the Legal Services Corporation's budget request for FY
2016. We appreciate the opportunity to submit this recommendation, and look
forward to working with LSC to obtain adequate funding for the important work
of the Corporation and its grantees.
As the members of your Committee and the LSC Board of Directors are \¡/ell
aware, resources are wholly inadequate at all levels across the nation to provide
"Equal justice under law." Study after credible study has verified these facts. LSC
has never been provided with sufficient budget resources to respond to more than
a tiny fraction of the legal needs of eligible poor persons. Other resources,
including an increasing level of pro bono contributions by private lawyers, state
funding for legal aid, Interest on La'wyer Trust Account programs and other
devices are insufficient as more than modest supplements. Nothing short of an
enoÍnous increase in the federal appropriation for LSC will produce resources to
address the shortfall.
At the same time, the LSC Board, and organizations such as the ABA which
advocate on behalf of the Corporation, must face budget realities. In a world
where the rhetoric about the importance ofjustice was matched by action, a
budget appropriation for LSC approaching five times the current allocation would
be enacted. But we recognize that competing federal priorities and limited federal
resources counsel a more moderate request. We therefore propose that the LSC
Board strive to simply keep abreast of inflation. Last year, after carefully
balancing the overwhelming need for civil legal services against the federal
government's budgetary realities, LSC sought an appropriation for FY2015 of
$486 million. The US Bureau of Labor Statistics reported on May 15,2014 that
the inflation rate for the prior 12 months was2.0%o. Applying that basis for
adjustment of LSC's prior request, we urge that LSC seek an appropriation of no
less than 5495.7 million.
Appx.2-page7
64
Finance Committee, Board of Directors, LegalSerylces Corporation
June 2, 2014
Page 2
Many Indicators Support This Request
Fundingfor LSC hasføllen veryfar behind inflation
In2014, we recognize the fortieth anniversary of the creation of the Legal Services Corporation.
Yet the program's current level of funding, $365 million, is just $65 million more than LSC's
appropriation in 1980. If adjusted for inflation, the 5300 million funding provided for LSC in
1980 would be over 5850 million today.
There have heen dramatic increases in poverty during the past decade
The Census Bureau has reported significant increases in poverty during the past decade. Today,
nearly 30% of the U.S. population is financially eligible for LSC services. Research has
demonstrated that approximately 50o/o of low-income households face legal needs at any point in
time. Research has also shown that about half of those households will have more than one legal
problem. This increasing poverty is certain to result in an increased demand for legal help as
more people fall into poverty and suffer problems with employment, housing and income
maintenance. Those legal problems, and the need for services, will persist for some time, and this
burgeoning demand will continue to impact the LSC-funded network of provider-programs.
Pro se representøtion continues to increase, amid cutbacks in court services for selfrepresented persons
The constraints on resources to support civil legal aid services have led to large numbers of pro
se litigants appearing in state and federal courts. National data indicate that in family law
matters, between 60 and 90 percent of the cases involve at least one self-represented party. In
New York, nearly two million litigants self-represent each year. Califomia has over 150,000
divorce cases per year. At least one party is unrepresented in 70 percent of them. A New
Hampshire report indicates that in 70 percent of the domestic relations matters there, at least one
party is self-represented. In Oregon, about seven out of ten litigants in family law matters selfrepresent. According to a Utah study conducted in 2005, both sides in debt collection cases were
represented in only three percent ofthe cases. In addition, 81 percent ofrespondents in divorce
cases in Utah selÊrepresent, and in evictions, 97 percent ofrespondents self-represented.
This trend toward involuntary self-representation has been compounded by signihcant decreases
in the budgets for state and federal courts, causing in many places temporary closures and
suspension of trials or support services for self-represented litigants. These diminished services
impact everyone who uses the courts to resolve problems - businesses, veterans, victims of
domestic violence, landlords and tenants.
LSC-funded legal aid programs lead or participate in efforts in many communities to provide
assistance to self-represented litigants. Further, by providing representation in some matters,
LSC ameliorates the burdens that are otherwise placed on courts in attempting to serve
unrepresented persons. But, with current resources, LSC-funded legal aid programs are unable to
provide needed representation to many who need such help, thus leaving many applicants for
service to fend for themselves in court.
Appx.2-page8
65
Finance Committee, Board of Directors, LegalSeryices Corporation
June 2, 2014
Page 3
Other sources of fanding for legal aid provide unreliahle supplements to federal funding
Federal funding available through LSC provides the foundation for the nation's civil legal aid
delivery system, and LSC funding catalyzes the development of other funding sources. Board
and staff leaders of legal aid programs, recognizing the inadequacy of LSC funds to meet the
critical legal needs of poor people, work diligently to increase other resources to supplement
their LSC funds. While state and local resources will never be able to replace the loss of LSC
dollars, state legislators, attorneys, and other private and public funders across the nation
recognize the importance of legal aid and have stepped up to at least partially fill the gap.
Despite these efforts, forty percent of the states had less funding for legal aid in 2012 (the most
recent year for which data is available) than they did in 201 1.
With the leadership of the organized bar, IOLTA programs have been established in every state,
the District of Columbia and the Virgin Islands, and in many years has been second only to LSC
in the amount of revenue generated for legal aid programs. However, falling interest rates and
the reduction in legal business and therefore in the principal balances in lawyer trust accounts
have caused overall IOLTA grants to legal aid nationwide to plungeby 620/o since 2008, when
those grants were at their height. The decline in aggregate IOLTA grants to legal aid from 201I
to2012 was a staggering 19%.
State legislatures in many states have increased funding to help fill the gap created by reductions
in LSC funding. Legislatures in 47 states and Puerto Rico either provide funding directly
through appropriations or court filing fees or authorize local jurisdictions to do so. However,
growth in this area has been diffrcult in recent years because of the financial crisis faced by
almost every state legislature. In spite of the economic difficulties, state legislative funding
nationwide increased by 7% in2012. While that sounds like a significant increase, it merely
returns this critical funding source to its 2011 level.
Local legal aid programs also continue to work hard to increase revenue from private sources,
and these sources have increased during this difficult economic period. For example, private
donations from the legal community increased by 6% from 2011 to 2012 and foundation support
increased by 3%.It must be noted, however, that these increases, starting from much lower base
amounts and comprising a much smaller portion of revenue in the overall system, cannot begin
to compensate for the loss of federal funding.
arry aggregate increases mask a serious problem of disparities from
state to state. Relying more and more on state and local funding means that programs in states
with greater resources - e.g. where state govemments have recovered more quickly from the
recent economic crisis, where there are more attorneys and/or private foundations per capita
are better able to cope with the inadequate funding from LSC. The states in the Deep South are
It is important to note that
-
particularly negatively impacted.
LSC is the only funding source that provides funding to every state and jurisdiction, based on a
formula that allows for an equal measure ofjustice for every state. The poor and disadvantaged
in every state are helped equally, and every community benefits from the more just society that is
the result ofproviding equal access to justice.
Appx.2-page9
66
Finance Committee, Board of Directors, LegalSeruices Corporation
June 2, 2014
Page 4
Supplementary Contributions Made Through Pro Bono by Private Lawyers
LSC funding also provides important infrastructure for donated pro bono services by private
lawyers throughout the nation. LSC funding provides the institutional structure for intake and
placement of pro bono cases, and the staffed legal aid offices provide pro bono attorneys with
access to expert legal advice as they assume responsibility for work in unfamiliar areas of law.
Continuation of a vibrant pro bono system depends upon LSC receiving adequate funding.
The ABA continues to work closely with LSC to buttress and expand pro bono efforts by private
lawyers, and in particular to foster more pro bono service to poor individuals with routine legal
matters. We are heartened by, and support, the creation in FY2014 of a new fund to stimulate
innovation and creativity in the use ofpro bono as an adjunct to staffed civil legal aid services.
All who work within the delivery system, however, recognize that pro bono provides only a
supplement that cannot replace the network of LSC-funded staff legal aid offices, and that a
robust pro bono system is dependent on the infrastructure provided by LSC-funded programs.
For that reason, we urge that additional resources provided for the purpose of stimulating pro
bono innovation and services should not come at the expense of reductions to the amounts
allocated for basic field services.
Attracting and Retaining Legal Services Lawyers
LSC also provides an important foundation and support for other critical aspects of the delivery
system. This includes support for attracting and especially retaining high-quality lawyers to/in
legal services careers. The ABA has joined with LSC and many state bar foundations and
educational institutions in focusing attention on the impact of educational debt on the ability of
young lawyers to enter and remain in public service. Federal funding for loan repayment
assistance is no longer available through other government programs for civil legal services
lawyers. We therefore urge that LSC continue to request at least $1 million in funds for its
program providing loan repayment assistance for selected lawyers in LSC-funded programs.
Building a Strong Technological Infrastructure
Similarly, we endorse the continuation of the "Technology Initiative Grants" (TIG) program,
enabling the civil legal assistance community to move forward with improving and expanding
the technological infrastructure for serving clients, reaching into rural communities, etc. We urge
the Board to include within its FY2016 budget request an amount that will permit continued
development of a strong technological infrastructure within the legal services community.
Conclusion
As the LSC Board prepares its 2016 budget request to the Congress, we urge the Corporation to
advocate for an inflationary increase in federal support for legal services for the poor. We believe
that a request of 5495.7 million is reasonable for FY2016 in light of the above, and that an
appropriation at this level would bring LSC a step closer to fulfilling its role in promoting equal
access to justice. The AmericanB,ar Association will continue to work closely with LSC to
vigorously support increased funding for LSC.
Appx.2 - page 10
67
Conference of Chief Justices
Conference of State Court Administrators
Government Relations Offi ce
7ll
2"0 Street,
NE
Washington, DC 20002
(866) 941-0229
FAX: (202) s44-0978
COSCA PRESIDENT
Mr. Zygmont A. Pines
CCJ PRESIDENT
Hon. Michael G. Heavican
Chief Justice
Supreme Court of Nebraska
Court Administrator
Administrative Office of the Courts
1515 Market Stree t, Suite 1414
2214 State Capitol
P.O. Box 98910
Lincoln, NE 68509
(402) 471-373E
F^X (402) 411-0297
Philadelphia, PA 19102
(2ls) s60-6337
FAX (2r5) s60-s48s
I|i4ay
29,2014
Mr. David Richardson
Treasurer, Legal Services Corporation
3333 K Street, NW 3'd Floor
Washington, DC 20007 -3522
Dear Mr. Richardson:
We write on behalf of the Conference of Chief Justices and the Conference of State Court Administrators tn
response to a recent notice that the LSC Board will be meeting soon to determine the fiscal year 2016 LSC
budget request to Congress.
The CCJ was founded in 1949 to provide an opportunity for the highest judicial officers of the states to meet
and discuss matters of importance in improving the administration ofjustice, rules and methods of procedure,
and the organization and operation of state courts and judicial systems. For decades the Conference has made
recommendations to bring about improvements in such matters. The CCJ membership consists of the highest
judicial officers of the fifty states, the District of Columbia, the Commonwealth of Puerto Rico, the
Commonwealth of the Northern Mariana Islands, and the territories of American Samoa, Guam and the Virgin
Islands.
The COSCA was founded in 1955 to assist state court administrators in the development of more just, effective,
and effrcient system ofjustice by providing a strong network for the exchange of information and methods to
improve the operations of state courts. Like the CCJ, the COSCA has made many recommendations to bring
about improvements in court organization and operations. Its membership consists of the top state court
administrator in the states and territories noted above.
As you know, the Conference of Chief Justices in2013 released a data-rich policy paper entitled, "The
Importance of Funding for the Legal Services Corporation from the Perspective of the Conference of Chief
Justices and the Conference of State Court Administrators." [Available at policv paper] Our research makes
clear that the large number of unrepresented citizens overwhelming the nation's coutts has negative
consequences not only for them but also for the effectiveness and efficiency ofcoutts striving to serve these and
other segments of the community who need their disputes resolved. More staff time is required to assist
Appx.2-page11
68
Mr. David Richardson
29,2014
Page2
N4ay
unrepresented parties. [n the absence ofa fair presentation ofrelevant facts, court procedures are slowed,
backlogs of other court cases occur, and judges confront the challenge of maintaining their impartiality while
preventing injustice. Clearly frontline judges are telling us that the adversarial foundation of our justice system
is all to often losing its effectiveness when citizens are deprived of legal counsel.
In view of these facts on the ground we ask that you support a significant increase in LSC funding to
nation's promise of "equal justice under law."
fulfill our
I thank you for your anticipated cooperation.
Sincerely yours,
\e/'Su':
I
à{-----
ZygmontA. Pines
Honorable Michael G. Heavican
President
Conference of Chief Justices
President
Conference of State Court Administrators
Appx.2 - page 12
69
WASHINGTON COUNCIL OF LAWYERS
Pramaf.ing trublie /alúeres'f aßd Pya Fono Serøíee
June2,2014
Via
HONORARY BOARD
Nan Aaron
I'lon Anna Blackbume-Rigsby
Rotlerìc V O Boggs
Brooksley Bom
Katherine S Broderick
Avis Buchanan
Peter Edelman
Marc Elron
Patl.v Mullahy Fugere
Katia Ganet
Elliot Mincberg
James Sandrnan
Joseph M Sellers
Virginia E Sloan
Johnathan Srnith
Paul M Smith
Nkechi Taíla
William Treanor
ele
ctr onic mail to david. r ichar ds on@,ls
c.
gov.
Mr. David Richardson
Treasu¡er
Legal Services Corporation
3333 K Street, N.W.
Washington, D.C. 20007
R.e; Washington Council of Latuyers comments
for FY 2016 LSC
budget process
Dear Mr. Richardson:
As the Legal Services Corporation prepares its budget request to the
Administration and Congress for the 2016 fiscal year, the Washington Council
of Lawyers writes to highlight the need for increased funding to match the
increasing demands on overburdened and under-resourced civil legal seruices.
BO,{IID OF DIRECTORS
President: Elizabeth L. Howe
Jarnes W Rubin
Vice President:
Communications: Gregory Lipper
Secretary: Kelly Voss
Treasurer: Pâtricia L. Stûsco
Julie Abbate
Nicole Austin-Ffillery
Derra Bauman
Eveiyn Becker
A¡lene Brens
Daniel B¡uner
Nancy Drane
Karen Grisez
Steve Grurnm
Susan M Hoflnan
Steven P. Holllnan
Philip I torton
Richard Jerome
Barbara Kagan
Arnelia Kegan
Mary C. Kennedy
Anne King
Mark L Kovner
Chinh Q Le
Paul Lee
Gregory Lipper
Joy Moses
Barbara Moulton
Robin C Murphy
Elisabeth R Myers
Taryn Wilgus Null
Linda Perle
Colda Philip
Jess Rosenbaum
Larvrence A. Schneider
Arny Senier
David Steib
Elizabeth Symonds
Jennifer Tsch irch
lviarsha Tucker
Gwendolyn Wâshington
The Washington Council of Lawyers is a non-profit organization
committed to the spirit and practice of law in the public interest. Founded in
1971, the Washington Council of Lawyers is the D.C. area's only vohurtary bar
association dedicated exclusively to promoting pro bono and public interest law
Council members represent every sector of the Washington legal community:
larvyers ùîd pro bono coordinators from large and small law firms and law
schools; lawyers from public interest groups, government agencies and
congressional off,rces; and law students and members of law-related professions.
We share a common concern for the well-being of our community and the
integrity of our civil and constitutional rights.
In2072, four years into the recession that began in 2008, WCL devoted
substantial effort to a report on legal services delivery in the United States. Se¿
Our
review spotlighted a dire reality: funding to vital legal aid programs had
plummeted, while the demand for their services had climbed to an all-time high.
For example, the report notes that: "Despite a projected rise in the number of
Americans living below the poverty line between 2010 and20I3, Congress
slashed LSC fundingby 17% between 2010 and 2012. These and other cuts had
immediate negative effects in the District. By way of example, one LSC
recipient-Neighborhood Legal Services-was forced to lay off three attorneys
after 2010. Given that one attorney can serve as many as 300 clients, these
layoffs left nearly a thousand vulnerable D.C. residents without vital legal aid."
The situation is no less severe today, after still more years of sustained abovepeak demand and diminished funding from all sources. Particularly alarming
DariaZane
EXECUTIVI DIRECIOR
NancyA
Lopez
555 Twelfth Street, N.W., Suite 210-A, Washington, DC
20004 202.942.5063
Appx.2 - page 13
70
is that, because overall economic activity has slowed and interest rates have been close to zero
for years, IOLTA funding for legal services has all but collapsed. See "IOLTA Programs Find
New Funding to Support Legal Services," March 1,2013, avqilable at
vices/ ("Nationwide, IOLTA funding dropped from $371 million in2007 to $93.2 million in
2011, according to the ABA Commission on IOLTA."); Memorandum from LSC President
Sandman, July 19, 2013 (LSC FY 2015 budget request memorandum), at 3, available at
mendation(7-19-2013).pdf ("This stunning drop reflects both dwindling IOLTA ftind balances
and the continuing miniscule federal funds interest rate.")
Failure to respond to this crisis with adequate funding increases-even to make up for the
severe cuts already suffered, let alone to address the new need-is in effect a policy choice to
jeopardize programs that protect low-income families' access to such basic human needs as safe
housing, food, subsistence income, safety, and family stability.
As our 2012 Report stated, we are convinced that the most effective way to ensure that
low-income families in this country have equal access to justice in the form of quality civil legal
aid is to provide adequate support and funding to LSC. Yet the Administration has requested
only bare-bones funding for LSC in each of the past two fiscal years-and Congress has reduced
it even further. To reverse this trend, the Administration and Congress must take immediate
action to protect legal aid programs and the constituents they serve.
In our judgment, status quo levels of LSC funding are inadequate even to address the
needs of easier times. We believe that the FY 2016 LSC budget should be increased from past
levels in order to meet the increased demand for legal services, beginning with additional funds
for Field Grants-the LSC's core grant funding mechanism-to enable America's legal services
providers to address the legal needs of an ever larger low-income population. We also support
additional increases for Technology Initiative Grants and Pro Bono Initiative Grants, as we
believe that funds directed there will encourage creative thinking and the multiplication of
available legal services.
As a bar association whose members seek to ensure that our courts provide justice for all
Americans, we feel it is imperative to recognize the sorely deficient capacity of LSC grantees to
fulfill their critical mission after years of increased demand and decreased funding. We urge that
the FY 2016 LSC budget be suffìcient to ensure that our nation's understaffed, overburdened
legal services offices are not asked to do more and more with less and less.
Respectfully submitted,
#'S$u.¡,qHowe
President
Washington Council of Lawyers
cc:
Mr. James Sandman Gandman@,lsc. gov)
Mr. John G. Levi (ilevi@sidle:t.com)
Appx.2-page'14
71
Appendix
3
Methodology for Estimating Eligible Poverty Population
2012-2016
The poverty projections in the budget recommendation are the result of updated data into a model developed by Dr. Isabel Sawhill, a
senior fellow in Economic Studies, at the Brookings Institution. This is the only poverty projection model that has been updated to
reflect the particular behavior of populations during the recession. The model uses the unemployment rate and poverty rate to project
future poverty rates. The model relies on unemployment and poverty being lagging indicators; it uses prior year data for
unemployment and poverty.
The table below breaks down the inputs, factors and outputs of the model to generate the poverty projections in the budget
recommendation.
lncrease
Projected
Increase
from
from
Population
Growth
Poverty
from
combination
of growth
and rate
Rate
increase
lncrease
Unemployment
Rate
Rate
r25%
Poverty
125 %
L25%
Poverty
Population
63,569,000
Population
lncrease
L25%
2012
8.1
L5.9%
20.8%
Total
Population
306,086,000
2013
7.4
L63%
2!.2%
308,442,OOO
65,474,OOO
1,9o5,494
489,473
1,405,L90
10,830
2014
6.8
L6.5%
21.4o/o
310,817,000
66,488,000
t,ot4,ogt
493,242
506,O29
L4,gLO
201-5
6.5
L6.4o/o
2L4o/o
3L3,2Lr,OOO
67,001,000
5L2,604
497,O40
1.4,929
20L6
6.1
t6.4%
2t3% 3L5,622,000 67,359,000
358,L79
500,867
634
-156,528
Year
Poverty
13,839
The unemployment rates are from the Congressional Budget Ofhce (CBO) for actual (2012-2013) and projections (2014-2016). The
only actual poverty rate in the table is from the U.S. Census Bureau for 2012. The remainder of the rates are projected using the
Sawhill model. The total population projections use the census projected growth rate of .77%o applied to the same data set used for the
20 12 pov erty calculations.
For 2013, column 8 shows that 489,473 people are added by population growth. This is the result of the 2012 125% poverty rate
(20.\yo, column 4) multiplied by the 2013 total population (308,442,926). Similarly, holding the total population constant and
16
72
multiplying by the 125% poverty rate adds 1,405,I90 people to the estimated eligible population (2013, column
rate and increased population are driven by the last year ofactual data available.
9).
The increased
The model has been a consistent predictor of the eligible population within 3%o. The prediction for the 2011 eligible population was
over by 2%q while the prediction for 2012 was under by nearly 3%. This is largely due to the uncertainty in the inputs to the model.
Year Projection Actual
20tl
64,655,000
63,324,000
l)ilïþrence
2.t%
2012
61,805,000
63,569,000
-2.8%
At the same time, CBO overestimated the unemployment rate by more than 8olo when projecting for 2012 and missed by almost
percentage point when a single month of 2011.
l'ear
Actual
l)rojcction
a
full
l)if f crcncc
20tt
9
8.9
0.8o/o
2012
8.8
8.1
8.2%
Despite relying on lagging indicators, the Sawhill model is the most representative model of poverty following the recession. The
relationship between employment and poverty in the model is direct. There is a reasonable likelihood that this projection will be off by
2-3yo, but the model is suggestive of conditions and has proved to be a relatively accurate guide.
Source-- Eligible persons 2007-2012:U.S. Census Bureau,2007-2012 American Community Survey l-Year Estimates, Table S1701: Poverty Status in the Past
12 Months; Emily Monea and Isabel Sawhill, An Update to"Simulaîing the Efect of the'Creat Recession' on Poverty," Brookings Institution, September 13,
201l, Figure A; U.S. Census Bureau 2012 National Population Projections: Summary Tables, Middle Series; LSC Projections for 2013 client eligible population
using LSC estimates based on: Monea and Sawhill, Simulating the Effect of rhe"Great Recession" on Poverty
poverw-monea-sawhill). Unemployment: CBO, CBO's Baseline Economic Forecast - February 2014 Baseline Projections, (
).
Total Population: U.S. Census,2012 National Population Projections - Table l; Poverty Population, U.S. Bureau of the Census, Current Population Survey,
Annual Social and Economic Supplements.
t7
73
Appendix 4
tSC Appropriations Compared to 1995
Appropriationo Adjusted for Inflation
622.2
600
572.3
512.6
500
añ
C,
e
t
¡152.0
.g
3t
Ê,
J
J
420.0
/100.0
400
o
o
400.0
36s.0
330.8
300
303.8
200
2000
1995
FISCALYEAR
I
2005
Actual Appropriation
2010
2014
lnllation-adjusted 1 995
Note: The inflation-adjusted hgures in this graph were derived using the Consumer Price Index (CPI) Inflation
Calculator on the Bureau of Labor Statistics website
(
) June 10, 2014
l8
74
Appendix
5
Funding Sources for tSC Grantees, 2008-2013
tâ
c
S1,ooo
o
=
=
seoo
ssoo
-'a-.
SToo
¿
s6oo
r
r
Ssoo
Non-LSC Funding
LSC
Fundingx
s4oo
S¡OO
5418.4
5404.o
s2oo
5348.s
s342.8
Sloo
so
2008
2009
20LL
201_0
2012
20L3
*Includes Basic Field and other LSC grants, carryover funds and derivative income
l9
75
Appendix 6
Sources of Non-LSC Fundirgo 2008-2013
600
o
=
o
526.3
=
lCarryover
500
lOther
400
rPrivate (1)
r
300
Local
rFiling Fees
200
TIOLTA
rState
100
rFederal NonLSC
0
2008
2009
20'l'l
20'to
20't2
2013
20
76
Appendix 7
State
Poverty
Population
Arkansas
859,895
94,485
1 , 104,800
538,030
CaliTornia
5,676, 185
Colorado
Connecticut
651,640
350,440
102,355
108,035
2,969,990
1,686,035
Alabama
Alaska
Arizona
Delaware
DC
Florido
Georgia
Hawaii
lciaho
lllinois
lndiana
lowa
Kansas
17s.7sl
235,880
1 ,749,315
955,42û
364,270
375,695
lncrease/Decrease in
Pwerty Population
since 2000 Census
1ô1 ,798
FErcent Change in
Poverty Populalion
since 2000 Census
Percenl Change in LSC
Funding Based on Full Census
Ad¡ustnent
23.2o/"
17.5%
-7 00/"
-11 .31;'
14,080
381,93s
126,253
970,055
52.8o/"
3O.7"/"
19.4"/"
n.60/"
-9 00/"
262,688
67.50/"
%.5"/"
90p26
35.0%
32,454
46.4"/"
1.90/"
'10.5olo
-l,465
1 ao/
52.10/"
63.1 %
1,017,361
652,242
23.352
87.148
15.5%
Cõ
457,357
395,936
106,%2
O -/ô
1.4"/"
-25.5"/"
14 8"/"
23.1"/"
-1280/"
19.7"/"
35.4",1,
22"/"
74.8"/"
28.90/"
117,866
41.2"/"
45.7V"
6.6olo
10.o"/"
-390/"
,26.8o/"
Kentucky
790,525
169,4æ
27.3"/"
Louisiana
824,905
168,370
s46,485
709,305
1,613,400
601,200
638,370
881,480
-26,208
32,869
24.30/"
1û7,809
24.6"/"
-6 ü%
-6 09/.
135,884
591,7e5
23.7"/"
E7 00/
19.2o/"
2!J,724
58.0o/"
19.3"/"
90,291
16.5%
-12.14/"
243.58e
38.2V"
4.3"/"
15,965
63,1 46
175,435
12.4o/"
-15 1"/"
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montanà
Nebraska
Nevacla
New Hampshire
New Jersey
New Mexico
New York
North Carolina
Nofih Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode lsland
South Carolina
South Dakola
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Vìrgirria
Wiscorrsin
Wyoming
144,32]
224,415
385,120
107,800
858,985
407,405
2,845,OX)
'I,596,885
80,690
1,777,41s
6 12,305
594,815
1,621,2n
136,370
816,485
110,440
1,ûS7,575
4,s79,'170
345,730
70,870
861,950
876,845
322,675
716.245
a 10/
-6.7"1"
39.2%
5.O"/"
ó I .¿-/o
413%
æ,270
37.3o/"
3.7"/"
159,3 17
2.Bo/"
-l1 Jaolta
102,668
152,818
638,218
33.7o/"
5.7"/"
66.6%
6 5o/"
aA aa¡
7,233
9.8%
606,717
121 ,470
51.8%
24.6"/"
53 0%
24.3"/"
206,07s
31 7,10s
15,822
268,616
14,540
s50,786
tJ. I
70
49.0olo
15 20/"
47.O"/"
1,261,561
40.5"/"
A Lþ"/o
139,402
15,3ô4
205,309
27.7"/"
31 3%
264,475
43.2"/"
6,881
¿.1-/o
264,707
4,908
58.6%
59,685
t,809
2,94J6
-tJ 50i"
35,848
17e,775
1,666,600
1,056
3.Oo/"
I
Oo/"
25.74/"
-lÍ.17o
14.60/"
-5.90/"
15.5%
6.20/"
14.6"/"
12.5"/"
-13-1"/"
10.9"/"
6.O"/"
26.5ù/"
-3.7"/o
-o_9ù/"
8.1"/"
-22.90/"
19-7"/"
-17 '8"/o
TERRITORIES
Arnerican Samoa
Guam
Micronesia
Pueño Rico
Virgin lslands
3
23,õ23
1,4õ2
o.80/"
,152,û87
1
-8 4"/"
32.4"/"
1,308
-30 9"/"
-22.2"/"
ta
ao/^
-3L\ B"/"
'49 O"/"
Notês:
(1) Poverty populatlon datâ. "fbve¡ly Populat¡on"fom U.S. C€nsus Bu 6au, 2011 Amenæn Community SUwêy 3 Yoar Estimalês, clala providod LSC
pursuanl 1o PL Samplê Data (with stâlulor¡ly required adß$lrnênts for AK and Hl); datà fo,r lorr¡lories olhor than Ftlerto R¡co fom U S. Cénsus Buréau,
SeleclêdEcono]nicCharacter¡slics:2010 PovêrtypopulaliondâtaforMicrón€s¡abas6don
2OlOCensus,DP'3-Gèowaphy[foreachlerrilÒryì,Proffleof
U.S. Cênsus Butoàu, 2O1O Cënsus, DP 3 Geo$ aphy for Commonwealth of the Norlhem Marianas. Prof¡le of Sêl(ìcled EconÒmic Character islics. 201 0,
and data fo{n the gpverffnenls of the F€derated Stat(ts of Mic[onesia, lhe Republic of Palau, and the RepuÞ|rc of lhe Mârshall lslands- "ærcsnláge Çhange
in Povefty ftpulation S¡næ zOûY) Cens{/s"cabulaled using 2011 ACS Data and 2000 Census dala Íorn lhe LSC Offbe of lnformatiôn Managemont
(2) krwrwc c'hangê in LSC Fund¡ngbased on d¡frorerìce Þelween FY2013 appropriation le/d with no cerìstjs aduslfiìent and the FY2013 approprial¡on
level w¡th liXl cënsus aqusbnent Þ(cludes Native American tundhg, because lhes6 fr-rìds are nol albcaled based on the distr¡hrliÒn of lhê povôrty popr^dation.
2T
77
Appendix
8
Cases Clos€d, 2008 -2013
(in thousands)
1^
!t
c
(u
t^
o
-c 9s0
t932
900
900
889
8s0
800
750
700
2008
2009
20tt
2010
2012
20L3
22
78
Appendix 9
Cases Closed Compared to Grantee Funding
2008-2013
(Cases Closed ln Thousands, Funding in Millions)
l
Ss6o.1M
950 Sgss.sivt
932
920
900
:
8f)
$ess.zrvr
s8S2.8M
900
889
56.4%
57.7%
-
56.7%
s9.8%
67-3%
60.7%
800
l
810
i
750
759
43.6%
42.3%
43.3%
40.2%
39.9%
7oo l
2008
I
2009
# of Cases
Closed
2010
I
Non-LSC Funding
20L2
2011
I
LSC
38.7%
2013
Funding
23
79
Þ
f\)
8
o
o
8
O
F
æ
Ol
8
8
8
o
8
o
t\J
O
I
O
Ft
s¡
FI
-(+.
4,691,.8
Þ
o
o
4,513.t
.+
o
a
(=
D
(n
4,233.2
vl
FI
È¡
4,20L.2
-E¡
--
T
N
o
o
1,737.7
T
o,
I
r=j
7,648.5
UI
-,-P )\
-t*
T
aD-
o,
-o
E
-
o,
@
oe
ÎW
o
1,506.6
ÈÈ
t'.
1.,477.5
l-
¡t
J
Ð
o
F
lv
3,464.0
o
=
a
(D
.-t
o,
-
Fl=
Ê\/
--.
3,29 1.0
t
(t)
3,O4o.7
È¡
N
o
ts
t-Þ
JFI
(a
UJ
2,920.9
sU)
9,887.6
Io
9,452.6
â
o,
tJr
8,790.5
o)
+r
NJ
è
8,599.6
80
iJ
H'¡
ox'
¡
lv
CD
.S
\
\
ì\)
ò
\
\/
Appendix l1
Basic Field Funding vs. Number of Attorneys (FTEs)
4.8
s4so
C
e
E
=t
c
t!
6
S4oo
4. 7
S¡SO
4.6
53oo
I
=
to
4.5
4.4
s2so
\
52oo
4.3
5i.so
4.2
Sroo
4.L
4
Sso
3.9
so
2008
20tt
20to
2009
r
Basic Field Grants
*Number
20t2
2013
of Attorneys
25
81
Contact:
Carl Rauscher
202-295-1615
[email protected]
July 24, 2014
FOR IMMEDIATE RELEASE
LSC: 40 Years of Championing Equal Access to Justice
Washington, DC – The Legal Services Corporation (LSC), the single largest funder of civil legal aid in the country,
marks its 40th anniversary on July 25.
LSC will commemorate this milestone beginning with a three-day event bringing together a wide range of legal,
government, corporate, and philanthropic leaders to shine a light on the challenges and opportunities facing civil
legal aid in America. The 40th Anniversary Kick-Off will be held Sept. 14-16 at the Omni Shoreham hotel in
Washington, DC.
“Created in 1974 as one of the last acts of the Nixon administration, LSC’s mission is ‘to provide equal access to
the system of justice in our nation’ and ‘to provide high quality legal assistance to those who would be otherwise
unable to afford adequate legal counsel,’” said LSC Board Chairman John G. Levi. “We are grateful for four
decades of bipartisan congressional support in pursuit of this mission. With the number of people now eligible for
civil legal assistance at an all-time high—nearly 21% of Americans—we look forward to working with Congress to
further expand its funding to help meet this unprecedented need.”
LSC provides federal funds through competitive grants to 134 independent nonprofit organizations with nearly
800 offices in every state, the District of Columbia and the territories of the United States. LSC is headed by an 11member Board of Directors appointed by the President and confirmed by the Senate. The Board is bipartisan: no
more than six members may be of the same political party.
LSC promotes technology innovation through its Technology Initiative Grants program which has funded more
than 525 technology projects in the past decade. LSC also awards grants through its Pro Bono Innovation Fund to
support new and innovative projects to promote and enhance pro bono efforts throughout the country.
“Every day across America, victims of domestic violence seeking protection, veterans trying to avoid
homelessness, and consumers facing wrongful evictions or foreclosures are forced to navigate the legal system
alone because they can’t afford a lawyer,” LSC President James J. Sandman said. “LSC’s funding of high-quality
legal services for low-income people helps assure fairness in our legal system, and it’s never been more needed, or
more important, than it is today.”
Members of Congress applauded LSC on its 40th anniversary:
Representative Frank Wolf (VA-10th), Chairman, House Commerce-Justice-Science
Appropriations Sub-Committee: “As chairman of the House Commerce-Justice-Science Appropriations
subcommittee from 2001-2006 and again since 2011, I have worked closely with the LSC leadership to support
these programs and ensure that funding is spent efficiently and appropriately. I have also worked with my
colleagues in Congress and LSC leadership to mitigate partisan issues that undermine support for this program.
Through these efforts, we have been able to ensure that LSC funding is focused on supporting legitimate civil legal
aid needs by those Americans who need it most.
82
Over the past several years, I have encouraged LSC to do more to engage law firms and bar associations to expand
pro bono services in coordination with the corporation. In response, the LSC board created a Pro Bono Task
Force in 2011 and produced a comprehensive report with innovative ideas to bolster national pro bono efforts. I
want to credit LSC Board Chairman John Levi and LSC President Jim Sandman for their leadership on this
project, which has the potential to further extend LSC’s support for low-income Americans.
Forty years after its creation, the LSC fills a critical gap by providing low-income Americans with legal assistance
they wouldn’t otherwise have access to. I want to commend the Legal Services Corporation and the attorneys
working in our communities for the work they do every day on behalf of Americans who need qualified counsel.”
Representative Chaka Fattah (PA-2nd), Ranking Member, House Commerce-Justice-Science
Appropriations Sub-Committee: “For millions of low-income Americans—including veterans, working
families, and people with disabilities—Legal Services Corporation (LSC) is the only path to navigating the justice
system and securing high-quality legal representation. As Ranking Member on the Commerce, Justice, and
Science Appropriations Subcommittee, I have led the effort in Congress to secure adequate funding to support
LSC’s mission of ensuring that every individual who requires it has access to America’s courts. As demand
continues to grow for civil legal aid in our country, it will remain our responsibility to continue to fight for
increased funding. I applaud LSC’s four decades of success advocating for equal access to justice and look forward
to remaining its champion.”
Representative Steve Cohen (TN-9th): “On this anniversary, I salute the Legal Services Corporation and LSCfunded attorneys for the vital work they do every day on behalf of Americans who need qualified counsel. Every
day that a legal aid attorney protects the safety, security and health of our most vulnerable citizens, they bring this
nation closer to living up to its commitment to equal justice for all.”
Representative Tom Cole (OK-4th): “Friday, July 25, marks the 40th anniversary of the Legal Services
Corporation (LSC). LSC-funded legal aid programs make a crucial difference to millions of Americans by assisting
with the most basic civil legal needs. On this anniversary, I salute the Legal Services Corporation and LSC-funded
attorneys for the vital work they do every day on behalf of Americans who need qualified counsel.”
Representative John Conyers, Jr. (MI-13th): “On this 40th anniversary of the Legal Services Corporation,
we should recommit ourselves to the founding principle and continue to ensure that LSC can fulfill its critical
mission through sufficient funding. I commend LSC and its grantee programs for the vital work they do every day
on behalf of Americans who need qualified counsel and for continuing its mission of equal justice for all.”
Representative Mike Honda (CA-17th): “I salute the Legal Services Corporation and LSC-funded attorneys
for the vital work they do every day on behalf of Americans who need qualified counsel. In my role as a senior
member of the Commerce, Justice, Science Appropriations Subcommittee, I’ve fought to increase LSC funding,
and have sought to remove federal restrictions on how LSC can use state, local, and private funds to more
efficiently use the resources it has available to serve low-income clients. I will continue to work to provide LSC
with the resources and flexibility it needs to ensure equal access to justice.”
Representative Mike Quigley (IL-5th): “I rise today to honor the Legal Services Corporation, which for 40
years has played a vital role in ensuring all Americans, regardless of income, have proper representation in court.
Thank you to the Legal Services Corporation and LSC-funded attorneys for the vital work they do every day on
behalf of Americans who need qualified counsel.”
Representative Adam Schiff (CA-28th): “On this anniversary, I salute the Legal Services Corporation and
LSC-funded attorneys for the vital work they do every day on behalf of Americans who need qualified counsel, as
well as the thousands of attorneys who contribute pro bono services to clients in need. In my district, LSC
provides funding to Neighborhood Legal Services of Los Angeles County, an organization which provided legal aid
to over 4,600 clients last year and looks to increase that number this year.”
Representative Bobby Scott (VA-3rd): “I have long been a supporter of legal assistance for low-income
Americans and of the LSC dating back to the 1970s, when I led the effort to establish the LSC-funded Virginia
Peninsula Legal Aid Center, Inc. So I know from first-hand experience that LSC-funded legal aid programs make a
83
critical difference to low-income Americans by assisting with their most basic civil legal needs. On this 40th
anniversary, I salute the Legal Services Corporation and LSC-funded attorneys for the vital work they do every day
on behalf of millions of Americans who need qualified, competent legal counsel.”
Representative Chris Van Hollen (MD-8th): “I rise today to honor the achievements of the Legal Services
Corporation (LSC) on its 40th anniversary. While we reflect on the achievements of LSC over the last 40 years,
Congress must also renew its commitment to providing LSC the critical resources it needs to assist our must
vulnerable.”
Senator Roy Blunt (MO): “Congratulations to the Legal Services Corporation on their 40th anniversary. The
important work they do on behalf of low-income citizens who need qualified counsel helps to make a difference in
the lives of thousands of our most vulnerable Missourians each year.”
Senator Tom Harkin (IA): “I know firsthand the important work of the Legal Services Corporation. Before I
was elected to Congress, I worked as a legal aid attorney in Polk County, IA. I experienced the challenges—and
also the rewards—of representing people who otherwise would not have the legal assistance they deserve. And I
developed a deep appreciation for the role that legal aid attorneys play within our system of justice. On this
anniversary, I salute the Legal Services Corporation and LSC-funded attorneys for the vital work they do every day
on behalf of Americans who need qualified counsel.”
Senator Angus King (ME): “I salute the Legal Services Corporation and LSC-funded attorneys for the vital
work they do every day on behalf of Americans who need qualified counsel. I began my career as one of these
attorneys - beginning in 1969, I worked in Skowhegan, Maine for a legal services provider called Pine Tree Legal
Assistance. Although my time predated LSC, today Pine Tree is funded by LSC and continues to provide highquality legal services to those in most need. I learned first-hand during this period that the work of LSC attorneys
is a critical element of making real the promise of our country to our disadvantaged and disenfranchised citizens.”
Senator Mary Landrieu (LA): “On this 40th anniversary, I congratulate and commend the Legal Services
Corporation for the vital work they do every day on behalf of Americans who need qualified counsel. In my home
state, more than 25% of the population is eligible for LSC-funded legal services. The three programs funded by
LSC served nearly 40,000 Louisianians and closed nearly 16,000 cases last year. Every day that a legal aid
attorney protects the safety, security, and health of our most vulnerable citizens, they bring this nation closer to
living up to its commitment to equal justice for all.”
Senator Patty Murray (WA): “I applaud the efforts of LSC, the programs and services funded by the
corporation, and ask that we commit ourselves to ensuring that Americans of all backgrounds have access to
adequate legal services. We are a better nation for its 40 years of service and advocacy on their behalf. In my home
state of Washington, LSC-backed programs have been helping survivors of the Oso mudslide get back up on their
feet and rebuild their lives. LSC is essential to protecting the lives and liberty of the most vulnerable Americans.”
The Legal Services Corporation (LSC) was established by the Congress in 1974 to provide equal access to justice
and to ensure the delivery of high-quality civil legal assistance to low-income Americans. The Corporation
currently provides funding to 134 independent nonprofit legal aid programs in every state, the District of
Columbia and U.S.territories.
84
AMERICAN BAR ASSOCIATION
Chair
Lisa C. Wood
Foley Hoag LLP
Seaport World Trade Ctr West
155 Seaport Boulevard
Boston, MA 02210-2600
[email protected]
Members
Jacquelynne Bowman
Boston, MA
Maureen Essex
Baltimore, MD
Daniel Goyette
Louisville, KY
Danny Greenberg
New York, NY
Stephen Hanlon
Washington, DC
Seymour Wesley James, Jr.
New York, NY
Hon. Thomas Kilbride
Rock Island, IL
Hon. Jon D. Levy
Portland, ME
Ada Shen-Jaffe
Seattle, WA
Drucilla Stender Ramey
San Francisco, CA
Board of Governors Liaison
Josephine McNeil
West Newton, MA
Committee Counsel
Terry Brooks
312-988-5747
[email protected]
Associate Counsel
Bev Groudine
312-988-5771
[email protected]
Assistant Counsel
Tori Jo Wible
312-988-5753
[email protected]
Dir., Resource Ctr. for ATJ
Steven Grumm
312-988-5748
[email protected]
Standing Committee on Legal Aid
and Indigent Defendants
321 N. Clark Street
Chicago, Illinois 60654-7598
www.abalegalservices.org
June 6, 2014
Ms. Stefanie K. Davis
Assistant General Counsel
Legal Services Corporation
3333 K Street, NW
Washington, D.C. 20007
Via e-mail to: [email protected]
Re: Comments on Notice of Proposed Rulemaking Regarding 45 CFR Part 1614
Dear Ms. Davis,
The American Bar Association, through its Standing Committee on Legal Aid and
Indigent Defendants (SCLAID) and with substantial input from its Standing
Committee on Pro Bono and Public Service (Pro Bono Committee), submits these
comments regarding proposed revisions to the Legal Services Corporation’s (LSC)
Private Attorney Involvement (PAI) requirement.
The ABA appreciates the process that LSC engaged in to obtain input on a variety of
issues regarding PAI before drafting and publishing the proposed revisions, as well
as the fact that many of the ABA’s suggestions were acted upon. Some of the
proposed changes that reflect the ABA’s views include: expanding the scope of Part
1614 to include law students, law graduates and paralegals; permitting LSC
recipients to spend PAI resources towards intake, screening and referral of
individuals to pro bono programs without the need to open cases for the individuals
screened and referred; and easing the administrative burden on recipients to enable
certain lawyers to obtain low-fee PAI contracts including those who participate in
incubator programs, as well as those who are stay-at-home parents or re-entering
the workforce.
There are, however, several proposed revisions that the ABA recommends be further
revised. They are discussed in detail below.
I. Definition of the Term “Legal Services Provider”
The proposed revisions at 45 CFR 1614.3 include a definition of the term “private
attorney,” as well as a subsection explaining who is not included in that term. One
of the types of lawyers not included is: “An attorney employed by a non-LSCfunded legal services provider acting within the terms of his or her employment with
the non-LSC-funded provider.” It is not clear from this language what is meant by
the term “legal services provider” in this context. The term is so broad that it
85
Ms. Stefanie Davis
June 6, 2014
Page 2
could include a private law firm, which is clearly not the intent. LSC indicates in the
Preamble to the revisions at 79 Fed. Reg. 21191 (April 15, 2014) that it is excluding this
group because the purpose of the PAI regulations is to engage lawyers “who are not currently
involved in the delivery of legal services to low-income individuals as part of their regular
employment.” The ABA agrees in principle with this view, but would refine it further
because there are lawyers working for private law firms who represent low-income
individuals on a contingency fee basis in a variety of matters including personal injury suits
and social security disability claims. As a result, the ABA urges LSC to clarify the definition
of “legal services provider” within the regulation as being “an entity whose primary purpose is
the delivery of free legal services to low-income individuals.”
II. Range of Activities – PAI Clinics
The ABA is keenly aware of the requirements under which LSC operates regarding screening
for eligibility for services, as well as the prohibition on representing aliens. LSC has
addressed these issues as they apply to PAI Clinics by providing in proposed 45 CFR
1614.4(b)(4) that LSC-eligibility screening is required for those clinics that provide legal
advice, but is not required when only legal information to the public is provided.
Furthermore, the proposed regulations indicate at 45 CFR 1614.4 (b)(4)(ii)(C) that a program
can allocate to PAI the support provided to a clinic that provides both legal information to the
public and legal advice to those screened for LSC eligibility.
There are several clinic settings that are not specifically addressed in the regulations that the
ABA believes should be. The first is the situation in which a clinic does not screen for LSC
eligibility and has two components to its operation: a legal information to the public
component and a legal assistance component. While not addressed in the proposed
regulations, this issue is discussed in the Preamble at 79 Fed. Reg. 21197 (April 15, 2014)
where such clinics are referred to as hybrid clinics: “Recipients may support hybrid clinics
and allocate costs associated with their support to the PAI requirements, but only if the clinic
screens for LSC eligibility prior to providing legal assistance and only provides assistance to
individuals who may be served by an LSC recipient.”
The approach articulated in the Preamble is problematic because the proposed regulations
permit legal information to be provided to the public without requiring screening for LSCeligibility. As a result, it follows logically that such screening should continue to be
unnecessary even if the clinic has a separate component that provides legal advice to those
who are not screened for LSC eligibility. For example, a clinic may provide community legal
education seminars at which pro bono lawyers lead the seminars and have a separate
component of the clinic that provides legal advice. LSC staff could play an important role in
the legal information portion of the clinic by developing materials distributed to attendees, as
well as by assisting the pro bono attorney with preparation for the presentation. Even if the
legal assistance portion of the clinic does not screen for eligibility, the ABA believes that a
LSC recipient should be able to assist the pro bono lawyer participating in the legal
information portion of the clinic and allocate to PAI costs associated with any support
86
Ms. Stefanie Davis
June 6, 2014
Page 3
provided. In addition, any time spent by the recipient in helping to plan and organize the legal
information portion of the clinic should also count towards PAI.
Another situation that the proposed regulation fails to consider adequately is one in which the
clinic has two components: one in which LSC-eligible clients are provided pro bono advice by
one group of lawyers, and another component in which non-eligible individuals are provided
service by either staff of the clinic (who are not employees of a LSC recipient) or a separate
group of pro bono lawyers. In this situation, screening would take place in advance by clinic
staff who are not employees of a LSC recipient, but may be staff of a bar association that has
organized the clinic. Those screened individuals who are eligible for LSC services would be
seen in the portion of the clinic to which a LSC recipient provides support. Staff of the LSC
recipient would not provide support to any of the activities taking place in the other portion of
the clinic that provides assistance to non-eligible individuals. In that scenario, LSC recipients
should be able to provide support to the portion of the clinic assisting LSC-eligible clients and
allocate that support provided to PAI. The ABA is taking this position because in many
communities, the bar association wants to serve through its pro bono programs many people
who cannot afford an attorney, not just those who fall within the LSC eligibility guidelines.
Given that LSC encourages its recipients to cooperate and collaborate with local bars, the
solution that the ABA suggests here enables the LSC recipient to respect the bar’s wishes
while still assuring that it is in compliance with LSC regulations.
A related scenario that the proposed regulations do not address is one in which a court or bar
contacts the local LSC recipient and requests assistance in planning a pro bono clinic. The bar
or court may not decide initially if LSC-eligibility screening will take place at its clinic or if
the clinic will provide legal information or legal assistance. Is the LSC recipient permitted to
provide technical assistance to the court or bar before such decisions are made? And if such
activity is permitted, can the LSC recipient allocate to PAI the costs associated with any
support or technical assistance that is provided to the bar or court during the discussion period
if the decision is ultimately made that the clinic will provide legal assistance and not screen
for LSC eligibility? The ABA regards these support activities as permissible and as ones that
should count toward the PAI requirement because the LSC recipient is not assisting lawyers
who will be helping ineligible clients, but is simply engaging in discussions initiated by the
court or bar to explore options. This type of collaboration and cooperation is precisely the
type of activity that LSC encourages its recipients to engage in with the bar and the courts.
Regardless of the final view taken by LSC on these issues, it would be best if it provides
clarity to LSC recipients so that they understand from the start when that collaboration is
permissible and when it is not.
III.
Failure to Comply
Currently, 45 CFR 1614.7(c) provides that if any funds are withheld from an LSC recipient for
failure to comply with expenditure of PAI funds as required by the regulations, LSC is to
make those funds available for providing legal services in the recipient’s service area through
PAI programs pursuant to a competitive grant process. However, under proposed 45 CFR
87
Ms. Stefanie Davis
June 6, 2014
Page 4
1614.10 (c), such withheld funds are to “be made available for basic field purposes, which
may include making those funds available for use in providing legal services in the recipient’s
service area through PAI programs.” In the Preamble at 79 Fed. Reg. 21198 (April 15, 2014),
LSC explains this change is being proposed due to its concern that if the current recipient is
the only applicant for those funds in the competitive grant process, the deterrent effect of
withholding the funds would be reduced and would defeat the purpose of holding the
competitive grant process.
The ABA urges LSC to reconsider this change because it is contrary to the purposes of the
regulation to encourage PAI. If the consequence of failing to use funds for PAI is that the
funds become available for basic field services, this provides a disincentive to comply with
the PAI requirement. Instead, these withheld funds should be required to be used for PAI, if
not in the service area of the program being penalized, then somewhere else in the state or the
country. The ABA therefore recommends that LSC maintain the current language, but add a
caveat that if the program from which funds are being withheld is the only LSC recipient
applying for the funds in the competitive grant process, then LSC shall redirect the funds to
another service area for a competitive grant process for PAI services.
The ABA appreciates the opportunity to present these comments and would be happy to
provide additional clarification or analysis if such is required.
Sincerely,
Lisa C. Wood
cc:
James R. Silkenat, ABA President
88
OFFICE OF LEGAL AFFAIRS
To:
Operations and Regulations Committee
From: Mark Freedman, Senior Assistant General Counsel
Stefanie K. Davis, Assistant General Counsel
Date: June 26, 2014
Re:
Summary of Comments Received in Response to the Notice of Proposed Rulemaking on
45 C.F.R Part 1614—Private Attorney Involvement
LSC published proposed revisions to 45 C.F.R. Part 1614—Private Attorney Involvement
(PAI) as a Notice of Proposed Rulemaking (NPRM) on April 15, 2014. 79 Fed. Reg. 21188
(Apr. 15, 2014). LSC received eight comments prior to the close of the comment period on June
16, 2014. Commenters generally voiced support for LSC’s proposed changes to the rule,
particularly the expansion of the rule to cover involvement by law students, law graduates,
retired attorneys, and other professionals. Commenters also recommended that LSC reconsider
some aspects of the rule, primarily the definition of “private attorney” and the new provision
governing support to clinics. All comments are available on LSC’s PAI rulemaking page at
http://www.lsc.gov/rulemaking-lscs-private-attorney-involvement-pai-regulation.
Commenters
Organization
Commenter
Date Submitted
American Bar Association, through its
Standing Committee on Legal Aid and
Indigent Defense (“ABA”)
Lisa C. Wood
California Rural Legal Assistance (“CRLA”)
and Legal Services Association of Michigan
(“LSAM”) (joint)
Jose R. Padilla & Ann Routt June 13, 2014
Northwest Justice Project (“NJP”)
Deborah Perluss
June 13, 2014
LSC Office of the Inspector General (“OIG”)
Laurie Tarantowicz &
Matthew C. Glover
June 16, 2014
89
June 6, 2014
13
Summary of Comments—PAI NPRM
June 26, 2014
Page 2
California Commission on Access to Justice
(“CCAJ”)
Hon. Ronald B. Robie
June 16, 2014
National Legal Aid and Defender Association
(“NLADA”)
Dennis Groenenboom,
Silvia Argueta, Don
Saunders & Robin C.
Murphy
June 16, 2014
Legal Aid Society of Northeastern New York
(“LASNNY”)
Michele Sleight
June 16, 2014
Legal Services of New York City (“LSNYC”)
Adam J. Heintz
June 16, 2014
Summary of Comments
A.
The Definition of “Private Attorney”
Four commenters expressed concern about LSC’s proposed definition of the term
“private attorney.” The majority of the comments focused on the exception to the definition
contained in proposed § 1614.3(h)(2)(ii). This provision specifically excludes from the definition
of “private attorney” an “attorney employed by a non-LSC-funded legal services provider acting
within the terms of his or her employment with the non-LSC-funded provider.” 79 Fed. Reg. at
21199. Although there was not a consensus about how LSC should revise the definition, the
commenters generally objected to the definition’s effect of limiting who could be considered a
“private attorney” for purposes of the PAI rule. Additionally, one commenter objected to the
exclusion of attorneys who were employed by a recipient for at least 1,000 hours in a calendar
year from the definition of “private attorney.”
Through their joint submission, CRLA and LSAM expressed strong opposition to §
1614.3(h)(2)(ii). CRLA and LSAM were concerned that this limitation would make it more
difficult for recipients in rural areas to design PAI plans that meet the rule’s requirements. As an
example, both organizations stated that a significant portion of their PAI plans involves cocounseling cases with non-LSC-funded legal services and other non-profit organizations engaged
in helping the poor. They suggested that LSC define “private attorney” as “any person authorized
to provide legal services who is not an employee of [an] LSC grantee,” and limit the applicability
of § 1614.3(h)(2)(ii) to subgrantees of recipients.
CCAJ also expressed concern “that the proposed private attorney exclusion set forth in 45
C.F.R. 1614.3(h)(2)(ii) is overly broad.” While it “understands LSC’s desire to encourage pro
bono participation by attorneys who do not generally serve low income clients,” CCAJ believes
that the exclusion “may unnecessarily restrict the pool of attorneys eligible to volunteer. . . .” The
PAI rule needs to “be flexible enough to encourage the participation of” such attorneys “while
permitting LSC-funded legal services programs to recruit and work with available attorneys and
90
14
Summary of Comments—PAI NPRM
June 26, 2014
Page 3
organizations in their local communities.” CCAJ suggests a narrower limitation that would
exclude “an attorney employed by a non-profit organization whose primary purpose is the
delivery of civil legal services to the poor during any time that attorney is acting within the terms
of his or her employment. . . .” Such an attorney could, however, participate in a PAI program
outside of his or her employment.
The ABA likewise expressed concern about the scope of § 1614.3(h)(2)(ii). The ABA
commented that the term legal services provider “is so broad that it could include a private law
firm, which is clearly not the intent.” The ABA recommended that LSC clarify that the term
“legal services provider” within the PAI rule means “an entity whose primary purpose is the
delivery of free legal services to low-income individuals.”
NJP expressed concern about proposed § 1614.3(h)(2)(i), which excludes any attorney
who was employed by a recipient for at least 1,000 hours in a calendar year from the definition
of “private attorney.” NJP asserted that this provision would exclude attorneys who, for any
reason in a given year, left a recipient’s employ after working 1,000 hours, such as recently
retired attorneys; the limit may also exclude recipients’ volunteers who are occasionally
employed to fill temporary needs. NJP concluded that, because recipients cannot allocate nonPAI activity to PAI costs, “there seems little reason to limit who is considered a ‘private
attorney’” for PAI purposes—as long as the costs of the attorney “are not allocated for time spent
while they are employed by the recipient.”
B.
PAI Clinics
Five commenters addressed aspects of the new provision governing the treatment of PAI
clinics, 45 C.F.R. § 1614.4(b)(4). The comments highlighted ambiguities in the text of the rule as
written.
According to CCAJ, proposed § 1614.4(b)(4)(ii) and 1614.4(b)(4)(ii)(C) bar recipients
from participating in any clinics that do not screen for LSC eligibility. CCAJ objected that “[t]his
ban exists even for ‘hybrid’ clinics where legal information is provided to groups and individual
legal information is provided separately.” As an alternative, CCAJ suggested that recipients be
allowed to allocate the costs associated with providing support to the unscreened legal
information portion of a clinic to PAI. Thus, recipients “would be permitted to provide legal
information during clinics, but not legal assistance to clients who have not been screened for
eligibility.”
The ABA made similar observations and recommendations to those provided by CCAJ.
Because legal information can be provided without screening for LSC eligibility, the ABA
argued, “it follows logically that such screening should continue to be unnecessary [for legal
information clinics] even if the clinic has a separate component that provides legal assistance” to
unscreened individuals. The ABA asserted that an LSC recipient “should be able to assist the pro
bono lawyer participating in the legal information portion of the clinic and allocate to PAI costs
associated with any support provided,” even for hybrid clinics that also provide legal assistance
to unscreened individuals.
91
15
Summary of Comments—PAI NPRM
June 26, 2014
Page 4
The ABA additionally noted that the text of proposed § 1614.4(b) failed to include other
types of clinics that recipients support. One example was a clinic in which “LSC-eligible clients
are provided pro bono advice by one group of lawyers, and another component in which non[LSC-]eligible individuals are provided service by either staff of the clinic or a separate group of
pro bono lawyers.” This type of clinic operates by screening clinic participants in advance and
directing them to the LSC recipient’s portion of the clinic if the individual is LSC-eligible, and to
the other pro bono attorneys if the individual is not. The other example was of a court or bar
association asking an LSC recipient for assistance planning a pro bono clinic. The ABA
recommended that LSC recipients be permitted to allocate to the PAI requirement costs
associated with helping to set up a pro bono clinic, regardless of whether the clinic ultimately
serves only LSC-eligible individuals.
NLADA submitted comments objecting to the screening requirement for PAI clinics
providing individualized legal assistance. NLADA asserted that this requirement “will make it
practically impossible for many programs to support important pro bono clinics,” the sponsors of
which—such as courts—“do not want to limit services solely to clients eligible for LSC
funding.” NLADA recommended that where “legal education activities are distinct and separate
from the legal assistance activities of the clinic, an LSC program should be permitted to support
the legal education activities and count the resources used to support these activities toward their
PAI requirement.” NLADA also recommended that LSC revise the rule to allow a form of
limited screening, plus procedures to be developed by recipients, “to allocate expenses for
activities that are permissible” under the LSC Act, “thereby ensuring that LSC funds are not used
to provide legal assistance to ineligible clients.” Further, if the clinic is set up in a way that
ensures a recipient only provides legal assistance to LSC-eligible clients, “recipients should be
able to count their participation in the clinic as PAI activities.”
Finally, LASNNY also objected to the screening requirements for PAI clinics providing
legal assistance to individuals, arguing that the requirements would restrict its participation in its
own programs. The inability to allocate the resources spent on a clinic that does not screen,
LASNNY notes, “limits the time that we can spend on this very important program, as well as
the PAI personnel who are permitted to assist.” LASNNY suggested that an alternative to
screening would be for LSC to allow recipients to use non-LSC funds to provide legal assistance
to unscreened clients.
The OIG recommended simplifying the eligibility standards described in proposed §
1614.4(b). The OIG referenced a comment offered by a Committee member at the April
Committee meeting noting that LSC could substitute “language pointing to generally applicable
standards governing the use of LSC funds as the operative constraint on PAI activities, thereby
reducing the complexity [of] the proposed rule.” The OIG advocated this approach because the
OIG “favors a systematic approach to rulemaking that avoids duplication of regulatory standards
across LSC’s regulatory apparatus.” Alternatively, the OIG recommended that LSC accompany
proposed § 1614.4(b)(4) with a statement in the general policy section of the rule “to the effect
that notwithstanding any other provision or subsection of the rule, a grantee may only count
toward its PAI requirement funds spent in support of activities that the grantee would itself be
able to undertake with LSC funds.”
92
16
Summary of Comments—PAI NPRM
June 26, 2014
Page 5
C.
1614.7 Failure to Comply
Two commenters raised concerns regarding proposed changes to § 1614.7, which
governs sanctions for a recipient’s inability to comply with, or seek a waiver of, the PAI
requirement. NLADA wanted to ensure that, although LSC does not consider withholding of
funding under Part 1614 to be equivalent to a suspension or termination of funding or a
questioned cost, “LSC will follow normal procedures of due process, including allowing
recipients the ability to appeal a decision to withhold funds to LSC’s President.”
The ABA expressed concern that the revisions to § 1614.10(c), which gave LSC
discretion about how to use any funds withheld from a recipient for failure to meet the PAI
requirement, are “contrary to the purposes of the regulation to encourage PAI.” The ABA opined
that “[i]f the consequence of failing to use funds for PAI is that the funds become available for
basic field services, this provides a disincentive to comply with the PAI requirement.” Instead,
the ABA recommended that LSC retain the current language, but add language authorizing LSC
to redirect the funds to another service area for PAI in the event that the program from which
funds are being withheld is the only LSC recipient applying for the funds.
D.
Other Comments
The OIG restated a number of concerns that it originally raised in a prior memo to LSC
Management regarding potential changes to the PAI rule. The OIG expressed concern that the
proposed rule’s expansion to allow recipients to involve law students, law graduates, and other
professionals “may divert resources away from private attorneys who participate in . . . PAI
programs designed in accordance with current requirements.” This is because the proposed rule
“do[es] not increase the overall amount grantees are required to spend on PAI,” while it expands
the activities covered by the PAI rule. The OIG also noted that subsections of § 1614.7 “should
be revised to account for the expanded focus of the PAI rule,” including recordkeeping
requirements about payments and reimbursements.
Because the approach proposed in the NPRM “has yet to be tested by experience,” the
OIG asserted that it is “very important to have in place mechanisms for measuring the
performance of the revised PAI rule from its inception.” These mechanisms should “consist
largely of reporting requirements that, at a minimum, break out the number of private attorneys
(as distinguished from other service providers) involved. . . .”
Finally, the OIG recommended that “LSC should retitle the Private Attorney Involvement
rule to reflect its expanding focus.”
NJP expressed concern that the proposed rule excluded existing § 1614.3(e)(4). Section
1614.3(e)(4) requires recipients to make any records which do not contain client confidences or
client secrets, as defined by applicable state law, available to LSC’s auditors and monitors. NJP
was concerned that removing this section would serve as a disincentive to PAI because private
attorneys might believe that they would be required to share client confidences and secrets with
LSC in contravention of state rules of professional responsibility. NJP also recommended that
93
17
Summary of Comments—PAI NPRM
June 26, 2014
Page 6
LSC raise the amount at which payments of PAI fees become subgrants for purposes of the prior
approval requirement in Part 1627. NJP recommended that LSC adjust the current threshold of
$25,000, established in 1983, to $60,000 in order to reflect increases in the cost of living.
LSNYC objected to proposed § 1614.3(b)(1), which would exclude from PAI activities
“work done on behalf of an organization, rather than a client.” LSNYC stated that the proposed
rule “estranges LSC regulations from the pro bono community’s definition of donated legal
work.” LSNYC cited § 6.1 of the ABA Rules of Professional Conduct, as well as the definitions
of “pro bono” from the Pro Bono Institute and New York Court of Appeals, to show that
nonprofit organizations can have their representation by an attorney termed “pro bono” if the
matter furthers their purposes, and where paying standard legal fees would significantly deplete
their resources. Nonprofits need pro bono legal assistance, LSNYC argued, because without it
“organizations that serve the poor simply would not be able to function.” LSNYC also noted that
the proposed § 1614.3(b)(1) would “ignore[] contributions of many transactional attorneys . . .
who might not otherwise find an avenue of pro bono assistance to the poor that is in keeping with
their skill set.” Allowing PAI attorneys to represent organizations would be a much-needed
“indirect service[]” to clients of a recipient.
94
18
June 20, 2014
Reginald J. Haley
Office of Program Performance
Legal Services Corporation
3333 K Street NW.
Washington, DC 20007
via email: [email protected]
Re:
Proposed Changes to LSC Grant Assurances for FY2015
Dear Mr. Haley:
I write to submit comments on behalf of the American Bar Association (ABA) in response to the
request by the Legal Services Corporation (LSC) for comments on proposed changes to the
Grant Assurances to be used by LSC in entering into grant agreements with LSC recipients in
FY2015. The ABA appreciates the opportunity afforded by the LSC to submit these comments
and express our views on this important topic. Because the proposal implicates the professional
responsibilities of lawyers across the nation and a variety of ABA policies/models, we write to
suggest several changes in the proposed grant assurances. These include suggested modifications
of grant assurances #10 and addition of a clause protecting a recipient and its clients during the
pendency of any dispute.
Policy and Legal Considerations Argue Against Modifying Grant Assurance #10 to Specify
that Access Must be Provided to All Materials Not Protected from Disclosure by Federal
Law or the Federal Attorney-Client Privilege
LSC has historically been very respectful of the professional responsibilities of attorneys who are
employed by LSC grant recipients. It has always recognized the value of attorney-client
relationships where legal aid clients can have complete confidence that their attorneys will fully
protect their clients’ interests. LSC has recognized that undue government interference in such
relationships has the potential to transform legal aid clients into second-class citizens, who are no
longer afforded the same protections that are available to clients of private lawyers. LSC has
therefore consistently respected the right of states to regulate the practice of law in state courts,
including those legal services provided to the clients of LSC grant recipients. Thus, even though
it may arguably have the power under some circumstances to require information that is
otherwise protected as confidential under the rules of professional conduct, LSC has adopted
appropriate protocols to assure that improper intrusions into confidential information do not
occur.
95
June 20, 2014
Page 2
It is not necessary for LSC to incorporate language into its Grant Assurances that may be read to
signal a desire to reverse those longstanding accommodations, including the proposed changes in
language in grant assurance #10. The current Grant Assurance language is sufficiently broad to
permit LSC access to materials subject to protections of “applicable” law. In circumstances
where LSC has cause to conduct a more in-depth investigation, it has adequate authority already
in place to enforce its full array of rights to access relevant materials.
The essence of the lawyer’s duty of confidentiality is a proscription on a lawyer’s voluntary
disclosure of confidential client information, as set forth in ABA Model Rule of Professional
Conduct 1.6 dealing with “Confidentiality of Information” and the many binding state rules of
professional conduct that closely track the ABA Model Rule.
In this respect, an advance, voluntary waiver of a lawyer’s future obligation to protect client
confidences through entry into a contract with a funding source (a “Grant Assurance”), without
any context or consideration of the particular circumstances that may be involved in a disclosure,
is a very different situation than a lawyer’s compliance with a subpoena or court order. We have
consulted disciplinary counsel in several states in considering this matter, and have been told that
at least in some states the lawyer may be required to test the validity of a demand for disclosure
to avoid a disciplinary infraction. These lawyers would, arguably, be unable to sign an advance
waiver of their duty of confidentiality.
An Argument Can be Made That the Law Governing Disclosure of Materials Remains
Unsettled
Some may argue that United States v. California Rural Legal Assistance, 722 F.3d 424 (D.C.
Cir. 2013) (US v CRLA) is fully dispositive of the issue whether state law is in any way
implicated where disclosure of grantee materials is involved. Unfortunately, the decision in that
case did not explicate its reasoning fully in holding that:
…[T]he general issue submitted to the district court by the parties…is, “whether, and if
so, which California state privileges and protections apply.” Because the district court
determined that the answer to the “whether” issue is “no,” and because we affirm that
holding, the “if so, which” half of the issue is no longer germane. Federal law exclusively
governs.
The opinion by the court in U.S. v CRLA does not provide details regarding how it factored
several relevant provisions of federal law into its decision. The opinion does not discuss the
extent to which its holding is based upon the Omnibus Consolidated Appropriations Act of 1997,
Pub. L. No. 104-234 §509(h), 110 Stat. 1321 (Section 509(h)), which dictates that certain
enumerated materials must be disclosed to LSC. By the terms of Section 509(h), such specified
materials are explicitly exempted from any protection provided by lawyers’ professional
responsibility codes or canons. Clearer guidance would have been provided if the court had
articulated whether its decision was based in whole or in part on that federal law. Presumably the
holding reaches beyond the materials enumerated in Section 509(h), but that is not absolutely
clear.
96
June 20, 2014
Page 3
There are a number of materials that LSC might request that are not among those enumerated in
Section 509(h). If the holding of US v. CRLA means that these, too, are subject only to the
provisions of federal law, not state law, that still does not fully resolve whether in some manner,
at least in some states, the state ethics rules are relevant. An important applicable federal law is
the LSC Act, which continues to provide protection for materials protected by professional
responsibility codes. The Act is less than a model of clarity, stating, at §2996e(b)(3):
The Corporation shall not, under any provision of this subchapter, interfere with any
attorney in carrying out his professional responsibilities to his client as established in the
Canons of Ethics and the Code of Professional Responsibility of the American Bar
Association (referred to collectively in this subchapter as "professional responsibilities")
or abrogate as to attorneys in programs assisted under this subchapter the authority of a
State or other jurisdiction to enforce the standards of professional responsibility generally
applicable to attorneys in such jurisdiction. The Corporation shall ensure that activities
under this subchapter are carried out in a manner consistent with attorneys' professional
responsibilities.
The Act does not make clear how the ABA Canons and Code are to be applied, since they are
merely models to be adopted as each state sees fit and do not prescribe lawyer behavior. Rather,
the practice of law in state courts is regulated by each state, usually by the state supreme court,
through rules of lawyer conduct that are enforced by state disciplinary authorities. Even if the
ABA models are somehow relevant, those referenced in the LSC Act have long since been
superseded, having been replaced by the 1983 ABA Model Rules of Professional Conduct.
The court in U.S. v CRLA notes that the LSC grantee was not seeking the protection of the ABA
Canons or Code (indeed, as noted above, how could it?), but instead was seeking protections of
California law. The court states that only federal law applies, but it does not discuss the fact that
the most relevant federal law, the LSC Act quoted above, specifies that LSC “shall ensure that
activities under this subchapter are carried out in a manner consistent with attorneys’
professional responsibilities.” Thus, that federal law seems to turn to the state professional
responsibility rules for its content, since only the states dictate “attorneys’ professional
responsibilities” (at least for practice in state courts, where much of an LSC grantee’s work is
performed).
Many states, including California where the CRLA case arises, have adopted a version of ABA
Model Rule of Professional Conduct 1.6(b) that states, in relevant part, that a lawyer shall not
reveal information relating to the representation of a client unless the client gives informed
consent, the disclosure is impliedly authorized in order to carry out the representation, or the
disclosure is permitted, among other situations, where the lawyer reasonably believes it to be
necessary to comply with other law or a court order. In those states, reference to the state
professional responsibility rules would not yield a result different than achieved in the U.S. v
CRLA decision. The state rules of professional responsibility specifically permit the lawyer to
make the disclosure. The same is true in a large majority of states, though a number of states do
not include the exemption in the black letter of their rules, but instead – like California – include
a statement in the commentary to the same effect.
97
June 20, 2014
Page 4
The situation is different in the professional responsibility rules of other states. Some states
include language permitting lawyers to divulge confidential information if required by other law,
but not if required by a court order. See, e.g., NJ RULES OF PROF’L CONDUCT R. 1.6(d)(4). Some
other states require lawyers to divulge confidential information if required by a court order, but
not if required by “other law.” See, e.g., WA. RULES OF PROF’L CONDUCT R. 1.6(b)(6). And at
least two other states omit the exemption entirely, but include a statement in their commentary
that “Whether another provision of law supersedes Rule 1.6 is a matter of interpretation beyond
the scope of these Rules, but a presumption should exist against such a supersession.” FLA.
RULES OF PROF’L CONDUCT R. 4-1.6; ALA. RULES OF PROF’L CONDUCT R. 1.6. Pennsylvania
takes a similar approach: “Other law may require that a lawyer disclose information about a
client. Whether such a law supersedes Rule 1.6 is a question of law beyond the scope of these
Rules. When disclosure of information relating to the representation appears to be required by
other law, the lawyer must discuss the matter with the client to the extent required by Rule 1.4”
PENN. RULES OF PROF’L CONDUCT R. 1.6 CMT. [18].
In some of these states that did not adopt the ABA Model Rule verbatim, if a case were to arise
where LSC sought confidential materials, an argument could be made that the federal law (i.e.,
the LSC Act) prohibits LSC from interfering with attorneys in carrying out their professional
responsibilities to their clients as established by their state professional responsibility rules, and
the state rules do not permit the lawyer to disclose the material sought by LSC. Whether a
subsequent case presenting this different set of facts would be decided in the same manner as
U.S. v CRLA is arguably an open question.
Even if the decision in U.S. v CRLA means that only federal professional responsibility law
applies, such an approach is not sufficient to provide clarity regarding what rules apply and what
materials are protected. The court in U.S. v CRLA did not discuss the meaning of the terms in the
LSC Act “standards of professional responsibility” and “attorneys' professional responsibilities.”
The LSC Act itself seems to define them as rooted only in the model ABA Canons and Code, but
those (now superseded) model documents are not binding on any attorney, anywhere. For the Act
to have meaning, it must refer to some ethical rules that are actually binding on attorneys. If the
court did not interpret those terms in the LSC Act to refer to state rules of professional
responsibility, then did it assume that they refer to a federal code of lawyer conduct? What is the
relevant federal law that governs the conduct of lawyers employed in LSC-funded programs, and
what constraints does the applicable federal code of federal conduct impose upon lawyers with
regard to divulging client confidences? There are no national, federal rules of professional
responsibility. Each federal court uses its own code of lawyer conduct, with some courts using
the state versions of the rules in which they sit, and others using their own written or unwritten
rules. Given this ambiguity, a reference in the proposed LSC Grant Assurances to “federal law”
is no more illuminating to those concerned than the reference in the current version to
“applicable law.”
Though we have limited our comments above to Grant Assurance #10, it is worth noting that
Grant Assurance #11 may suffer from exactly the same type of circularity as described above
regarding the rules of professional conduct. In many federal districts, the court adopts as
applicable federal law the state laws of attorney-client privilege in effect in the jurisdiction where
the court sits.
98
June 20, 2014
Page 5
Some Form of “Savings Clause” is Essential in the Grant Assurances
Given the ambiguities of the law, we urge that the Grant Assurances should include language to
state explicitly that they are not intended to prevent or penalize good-faith objections to
disclosure and presentation of any dispute to an appropriate adjudicator.
In addition to the legal analysis above, there are other important considerations that support
addition of such a clause in the Grant Assurances. LSC’s mission to provide representation to
clients in poverty obligates it to avoid any unnecessary interruptions in service to such clients.
Where a recipient of LSC funds is using those funds to provide legal services to clients, it would
be inconsistent with its mission for LSC to place in jeopardy the ongoing representation of such
clients while a legitimate dispute over grantee compliance is pending – either based in the
ambiguities respecting attorneys’ professional responsibilities or uncertainty regarding the extent
of protection provided by federal attorney-client privilege. It would be most appropriate for LSC
to include within the Grant Assurances a clause stating that it will not be considered a violation
of the agreement for a recipient to assert a colorable claim to withhold certain confidential client
information under provisions of applicable law.
The concept that financial sanctions, with the unavoidable harm they will cause to clients, should
not be imposed on a recipient for certain types of good faith non-compliance is reflected in
LSC’s own regulations. Part 1606 addresses situations where reductions in funding are
appropriate and requires that such reductions only occur when there has been a “substantial
violation.”
The requirement in the proposed (and existing) Grant Assurances that a grantee wishing to
withhold materials must identify in writing the bases for withholding seems to presume that there
will be some due process accorded to the grantee prior to LSC’s withholding of funding. It
would be inappropriate for LSC to peremptorily suspend or discontinue the objecting program’s
funding, conceivably before the objection was even heard or ruled on by an appropriate
adjudicator. This is especially true in those states where the applicable rules of professional
responsibility may obligate the grantees’ attorneys to assert and test their good faith objection to
an information request that calls for privileged or confidential client information as defined by
the applicable state court’s rules. Nothing in the LSC Act authorizes LSC to condition its
monetary grants to legal aid programs on the programs’ waiver of this right and their attorneys’
duty to object and submit to adjudication.
For these reasons, we urge that the Grant Assurances include specific language permitting a
grantee to assert and test in good faith any colorable objection to any aspect of LSC’s request for
documents or information. Such a process seems implicit in the language of the existing and
proposed Assurances, and is explicit in the regulations. The proposed savings clause simply
removes any doubt in this regard.
99
June 20, 2014
Page 6
Summary and Conclusion
We urge that LSC adopt language for Grant Assurances #10 that is sufficiently broad so as not to
rely upon unsettled law or principles. Further, we urge LSC to include a clause stating that a
violation will not be presumed to have automatically occurred if a recipient withholds certain
documents under a colorable claim that they are protected under applicable law.
Suggested further edits to proposed Grant Assurance #10 (with further changes highlighted for
clarity) are:
During normal business hours and upon request, it will give any authorized representative
of LSC, including the OIG, or the Comptroller General of the United States (which
includes the Government Accountability Office (GAO)) access to and copies of all
records that they are entitled to under the provisions of the LSC Act and other applicable
laws. This requirement does not apply to any such materials that may be properly
withheld due to applicableunder Federal applicable law or rulesor rules.. It agrees to
provide LSC with the requested materials (excluding those which may be properly
withheld) in a form determined by LSC while, to the extent possible consistent with
this requirement, preserving the confidentiality of client informationapplicable client
secrets and confidences and respecting the privacy rightsinterests of the Applicant’s staff
members. For those recordseach record subject to the Federal attorney-client privilege
that is withheld, itthe Applicant will identify in writing the specific record(s) or
portion thereof not being provided and the legal justification for not providing the
record(s). or portion thereof.
The above proposed edits return the assurance to use of the term “applicable” instead of “Federal”
law. They also clarify that an Applicant does not agree to provide all “requested” materials, but may
exclude some in certain circumstances. Another change substitutes the current ABA model and
widely adopted state rules’ language of “confidentiality of client information” for the nowsuperseded Code language of “client secrets and confidences.”
We do not offer specific edits or language to ensure that grant recipients can continue to receive
funding and provide representation to clients during the pendency of a dispute regarding production
of records, but leave it to LSC to properly express that concept in the Grant Assurances.
Thank you for the opportunity to comment on the proposed Grant Assurances for FY2015.
Sincerely,
Thomas M. Susman
Director, ABA Governmental Affairs Office
cc:
James R. Silkenat, President, American Bar Association
Lisa Wood, Chair, ABA Standing Committee on Legal Aid & Indigent Defendants
100
MEMORANDUM
TO:
Operations and Regulations Committee
FROM:
James J. Sandman, President
DATE:
July 2, 2014
SUBJECT:
Grant Assurances for LSC 2015 Grant Awards
This memorandum addresses the LSC Grant Assurances that LSC management
intends to use for 2015 grant awards. The revised assurances incorporate changes that
affect six of the current (2014) Grant Assurances, i.e., Grant Assurances 8, 9, 10, 11, 15,
and 16. (The Grant Assurances, with the changes in redline format, are at Attachment 4.)
The changes incorporated in the attached 2015 Grant Assurances were reviewed by
the LSC Grant Assurances Committee (Committee) using the "Statement of Purpose - Grant
Assurances," which is the guide LSC uses in considering revisions to the Grant Assurances.
(Please see Attachment 1.)
LSC published proposed 2015 Grant Assurances for an initial thirty-day public
comment period and, following a request for an extension, extended the comment period for
an additional 21 days for Grant Assurances 10 and 11. LSC received a total of twelve
comments pertaining to Grant Assurances 10, 11, and 15. (The comments appear in the
board book after this memo and attachments.) The attached 2015 Grant Assurances reflect
modifications from our initial, published proposals in response to the comments we
received. In their final form, we believe that the 2015 Grant Assurances make only minor
modifications to the 2014 Grant Assurances that do not require committee or board
approval.
Background:
Grant Assurances are standard for all grantees and are required to be executed by
each LSC grantee when it applies for and when it accepts a grant from LSC. They include
certifications by the grantee and delineate certain responsibilities of the grantee. Grant
Assurances 1–6 address applicable legal requirements; Grant Assurances 7–9 address
programmatic requirements; Grant Assurances 10–19 address records and information,
recordkeeping, and notification requirements; and Grant Assurances 20–21 address the
grantee's responsibility to assist in resolving outstanding audit or compliance issues and the
use of the LSC logo.
101
20
Operations and Regulations Committee
July 2, 2014
Page 2
The Grant Assurances are periodically updated or revised based on LSC's
experience and on suggestions received from the Office of Inspector General (OIG) and
third parties. They are reviewed annually by the Committee, which is comprised of
representatives from the Offices of Compliance and Enforcement, Information
Management, Legal Affairs, and Program Performance. Representatives from the OIG
provided recommendations and participated in Committee discussions. The National Legal
Aid and Defender Association also provided input.
To ensure transparency in the grants process, LSC published the proposed 2015
Grant Assurances on the "LSC Grants" website on April 30, 2014, for public comment. A
Federal Register notice informed the public of the changes proposed for the 2015 Grant
Assurances, the location for reviewing the proposed 2015 Grant Assurances, and the options
for submitting comments to LSC. LSC also emailed the notice of the proposed changes and
the link to the proposed 2015 Grant Assurances to all LSC recipients. Of the twelve
comments received, eight pertained to the change proposed for Grant Assurances 10 and 11.
The remaining four comments pertained to the change proposed for Grant Assurance 15.
Grant Assurance 10 requires LSC recipients to give LSC and the U.S. Comptroller
General access to records they are entitled to under the provisions of the LSC Act and other
applicable law. The change to the Grant Assurance that LSC initially proposed and
published for comment would have required LSC recipients to provide access to records in
accordance with federal law rather than “applicable law,” consistent with the 2013 decision
of the U.S. Court of Appeals for the District of Columbia Circuit in United States v. Cal.
Rural Legal Assistance, 722 F.3d 424 (D.C. Cir. 2013) (United States v. CRLA).
Grant Assurance 11 currently requires LSC recipients to provide LSC and federal
agencies or independent auditors or monitors reviewing the recipient access to financial
records, time records, retainer agreements, client trust fund and eligibility records, and
client names, except for those reports or records that may be properly withheld under
“applicable law.” As with Grant Assurance 10, the initial proposed change would have
required LSC recipients to provide access to reports and records in accordance with federal
law.
The comments regarding the proposed changes to Grant Assurances 10 and 11 urged
LSC to withdraw the proposed change, or to revise the language to permit access to records
based on “applicable laws and rules,” or pursuant to court order. In particular, the
comments noted that “in some states the [LSC recipient] lawyer may be required to test the
validity of a demand for disclosure to avoid a disciplinary infraction.” (See comments from
the American Bar Association, page 2). LSC management believes that the potential
unintended consequences of the initial proposed change to Grant Assurances 10 and 11
outweighed the benefits of the proposed change to these Grant Assurances. LSC currently
requires, and has required for more than a decade, through the LSC Certification that its
recipients consent to the exclusive jurisdiction of the United States District Court for the
District of Columbia regarding disputes involving a grant, including this grant assurance.
Thus, United States v. CRLA provides controlling law on this issue. As a result, LSC
102
21
Operations and Regulations Committee
July 2, 2014
Page 3
management has decided to retain the longstanding language regarding access based on
“applicable law” and to make only minor changes for clarity. (The revised language is
shown in redline format at Attachment 4.)
Grant Assurance 15 currently requires LSC recipients to notify the OIG when it has
“reason to believe it has been the victim of a loss of $200 or more as a result of any crime,
fraud, misappropriation, embezzlement, or theft involving property, client funds, LSC funds,
as well as non-LSC funds used for the provision of legal assistance; or when local, state, or
Federal law enforcement officials are contacted by the program about a crime. It also will
notify the OIG if it has been the victim of a theft of items such as credit cards, check stock,
passwords, or electronic access codes, that could lead to a loss of $200 or more.” The
change to the Grant Assurance is intended to make explicit to LSC recipients that fraudulent
timekeeping is covered by this grant assurance and must also be reported to the OIG. The
initial change proposed added the word “time” so that the first clause would have read “any
crime, fraud, misappropriation, embezzlement, or theft involving property, time, client
funds, LSC funds, as well as non-LSC funds used for the provision of legal assistance . . . .”
(Emphasis added.)
With regard to the change to Grant Assurance 15 that LSC initially proposed, the
comments expressed concern that inadvertent, unintentional timekeeping errors would be
subject to mandatory reporting to the OIG. That was not LSC’s intention. LSC has since
clarified Grant Assurance 15 to make clear that the reporting obligation applies to “willful
misrepresentation of theft” of time having a value of $200 or more. (The revised language
is shown in redline format at Attachment 4.)
Please see attachment three for a more detailed summary regarding Grant
Assurances 10, 11, and 15.
This memorandum includes the following six attachments:
•
Attachment 1 is the LSC "Statement of Purpose - Grant Assurances," which is the
guide LSC uses in considering revisions to the Grant Assurances.
•
Attachment 2 contains the rationale for the proposed revisions for the 2015 Grant
Assurances. Revisions are proposed for Grant Assurances 8, 9, 10, 11, 15, and 16.
•
Attachment 3 provides a more detailed summary regarding Grant Assurances 10,
11, and 15.
•
Attachment 4 is a copy of the 2015 Grant Assurances shown in redline format
from the current Grant Assurances.
•
Attachment 5 is a clean copy of the 2015 Grant Assurances.
103
22
Operations and Regulations Committee
July 2, 2014
Page 4
I do not believe that the 2015 Grant Assurances require action by the Operations
and Regulations Committee, or the full Board. In recent years; however, Grant
Assurances have been presented to this Committee. Consistent with that practice I am
submitting them to the Committee.
I would be happy to answer any questions you may have or provide any additional
information you would like.
104
23
ATTACHMENT – 4
LSC Grant Assurances
Proposed for Calendar Year 2015 Funding
If Applicant is successful and receives an LSC grant or contract,
APPLICANT HEREBY ASSURES THAT:
1.
It will comply with the requirements of the Legal Services Corporation Act of 1974 as
amended (LSC Act), any applicable appropriations acts and any other applicable law,
rules, regulations, policies, guidelines, instructions, and other directives of the Legal
Services Corporation (LSC), including, but not limited to, LSC Audit Guide for
Recipients and Auditors, the Accounting Guide (2010 Edition), the CSR Handbook
(2008 Edition, as amended 2011), the 1981 LSC Property Manual (as amended) and the
Property Acquisition and Management Manual, and with any amendments of the
foregoing adopted before or during the period of this grant. It will comply with both
substantive and procedural requirements, including recordkeeping and reporting
requirements. It understands that a successful Applicant may be required to agree to
special grant conditions as a condition of receiving the grant. Multi-year grants must be
renewed each year. Upon renewal, new terms and conditions may apply.
2.
It agrees to be subject to all provisions of Federal law relating to the proper use of
Federal funds listed in 45 C.F.R. § 1640.2(a)(1). It understands that if Applicant violates
any Federal laws identified in 45 C.F.R. Part 1640, it may be subject to civil, criminal
and/or administrative penalties. It represents that it has informed employees and board
members of the Federal laws and their consequences both to the recipient and to
themselves as individuals as required in 45 C.F.R. § 1640.3.
3.
It agrees that all derivative income from these grant funds shall also be subject to the
terms and conditions of this grant as authorized by 45 C.F.R. Part 1630.
4.
It will not discriminate on the basis of race, color, religion, gender, age, disability,
national origin, sexual orientation, or any other basis prohibited by law against: (1) any
person applying for employment or employed by the Applicant; or (2) any person
seeking or provided assistance from the Applicant or other program(s) supported in
whole or in part by this grant. The governing body has adopted or will adopt in a timely
manner Equal Opportunity and Sexual Harassment Policies, each of which must include
an effective mechanism for processing complaints.
105
30
5.
It will notify the LSC Office of Inspector General (OIG) within thirty (30) calendar days
after replacement of the Independent Public Accountant (IPA), termination of the IPA,
or any other occurrence resulting in a new IPA performing the grantee's annual financial
audit. No audit costs may be charged to the LSC grant when the audit required has not
been made in accordance with the guidance promulgated by the OIG. It understands that
if it fails to have an audit acceptable to the OIG in accordance with the OIG’s audit
guidance (including the Audit Guide for Recipients and Auditors), LSC may impose
sanctions in addition to those specified by statute, which are: (1) withholding of a
percentage of the recipient's funding until the audit is completed satisfactorily; and (2)
suspension of the recipient's funding until an acceptable audit is completed. Other
possible sanctions that LSC may impose for not having an acceptable audit include
special grant conditions and/or corrective actions.
6.
It understands that Congress may reduce, rescind or sequester LSC funding or may
impose additional requirements or restrictions on the use of LSC funding. An award of a
grant under the competitive bidding process does not obligate LSC to disburse any funds
that are not authorized or appropriated by Congress, nor preclude the imposition of
additional Congressional requirements on any funds that are so disbursed. Such
requirements or reductions as implemented by LSC shall not constitute a termination or
suspension of funding.
7.
It will provide legal services in accordance with the plans set out in its grant application,
as modified in further negotiations with LSC, and agrees to provide high quality,
economical, and effective legal assistance, as measured by the LSC Performance
Criteria, ABA Standards for the Provision of Civil Legal Aid, ABA Standards for
Programs Providing Civil Pro Bono Legal Services to Persons of Limited Means, and
consistent with any applicable code or rules of professional conduct, responsibilities, or
ethics.
8.
With respect to its office technology:
(a)
it has an information security system that ensures confidentiality and security of its
operations, assets, data, and files.
(b)
it will conduct program-wide conflicts checking contemporaneously with intake
using a case management system with an electronic database, including when
intake is conducted outside its offices and contemporaneous access to the case
management system is available.
(c)
it has a plan for backing up case management data, financial data, documents and
other critical data. It performs these backups at least weekly and checks their
integrity by restoring test files. Further, it stores electronic or physical copies of
these backups in a safe, offsite location.
(d)
it has the capacity to convert paper documents into Portable Document Format
(PDF) and the capacity to transmit those documents as electronic files.
106
31
(e)
each case handler has a computer at her or his work area that can perform all of the
following functions: word processing, access to the case management system,
access to time-keeping, access to the Internet, including the ability to download
files from the Internet, and e-mail capability with the capacity to send and receive
messages and attachments both internally and externally. It understands that the
above functions describe the minimum functionality of existing computers only. It
further agrees that any new computer, monitor, or printer purchased to perform the
above functions will have a capacity to exceed the demands of current operating
systems and software so that it can reasonably be expected to perform adequately
with few upgrades for at least three (3) years.
9.
It will work with other LSC and non-LSC-funded legal services providers in the State to
ensure that there is a statewide website that publishes a full range of relevant and up-todate community legal education/pro se related materials and referral information, at least
covering the common topics facing the client communities on the subject matters that are
the Applicant’s priorities. It will contribute to sustaining said website according to the
plan for the development and maintenance of the website adopted by the statewide
website Stakeholders Committee of which it will be a member. As a member of the
Committee it will work to ensure that: 1) outreach is conducted for members of the client
community to inform them of the website and about how to use it, 2) the website is
periodically evaluated and updated for ease of use and accessibility to meet the needs of
as many consumers as possible, and 3) the LSC logo is used on at least the homepage of
the website3) the LSC logo is included on the website, at least on the homepage, and 4)
the website indicates that LSC funded programs participate in the website consistent
with LSC restrictions. Sample disclaimer language for the homepage or other
prominent location: LSC’s support for this website is limited to those activities that are
consistent with LSC restrictions (see Grant Assurance 21 for further instructions and
clarification on terms of usage). If a Technology Initiative Grant (TIG) was awarded to
start the website using either the LawHelp or Open Source template, it will maintain the
scope of functionality of the template it was using, including the capability of having
separate sections on the website for clients, legal services advocates, and pro bono
attorneys; adhering to the “National Subject Matter Index”; and the ability to use the
LawHelp interactive HotDocs server.
10.
During normal business hours and upon request, it will give any authorized
representative of LSC, including the OIG, or the Comptroller General of the United
States (which includes the Government Accountability Office (GAO)) access to and
copies of all records that they are entitled to under the provisions of the LSC Act and
other applicable laws. This requirement does not apply to any such materials that may
be properly withheld due to applicable law or rules. It agrees to provide LSC with the
requested materials in a form determined by LSC while, to the extent possible consistent
with this requirement, preserving applicable client secrets and confidences and
respecting the privacy rightsinterests of the Applicant’s staff members. For those
recordseach record subject to the attorney-client privilege, it will identify in writing the
specific record(s) or portion thereof not being provided and the legal justification for not
providing the record(s). or portion thereof.
107
32
11.
Notwithstanding any other Grant Assurance, §1006(b)(3) of the LSC Act, 42 U.S.C. §
2996e(b)(3), or any state rule governing professional responsibility, it shall, upon
request, provide access to and copies of financial records, time records, retainer
agreements, client trust fund and eligibility records, and client names, except for those
reports or records that may be properly withheld due to applicable law governing
attorney-client privilege, to LSC, including the OIG, and to any Federal department or
agency that is auditing or monitoring the activities of LSC or of the Applicant and any
independent auditor or monitor receiving Federal funds to conduct such auditing or
monitoring, including any auditor or monitor of LSC. For those reports or recordseach
record subject to the attorney-client privilege, it will identify in writing the specific
record(s) or portion thereof not being provided and the legal justification for not
providing the record. or portion thereof. Any materials furnished pursuant to this
Assurance shall be provided in a timely manner.
12.
It will cooperate with all reasonable information collection, including surveys,
questionnaires, monitoring, audits, investigations, and compliance or evaluation
activities undertaken by LSC, including the OIG, or its agents. Such cooperation shall
include making staff available to LSC, including the OIG, or its agents for interview and
otherwise allowing staff to cooperate with the same. It understands that nothing in these
Grant Assurances in any way restricts or limits the authority of the LSC OIG to access
any and all records and information to which it is entitled under the Inspector General
Act of 1978, as amended, 5 U.S.C. app. § 3. It will submit, for each year of the grant
and for each service area for which a grant is awarded, Grant Activity Reports in a
format and at a time determined by LSC.
13.
It will not take or threaten to take any disciplinary or other retaliatory action against any
person because of any appropriate cooperation with or the appropriate release of
information to LSC, including the OIG, or other entity authorized to receive such
cooperation or information pursuant to applicable procedures and consistent with any
applicable law, code of ethics, or rule of professional responsibility. It will notify its
employees and volunteers in writing that it will not take any disciplinary or other
retaliatory action against an employee or volunteer (including board members) for any
appropriate cooperation with LSC, including the OIG, or other entity authorized to
receive such cooperation.
14.
It will notify the LSC Office of Information Management within thirty (30) calendar
days after any of the following occurrences that involve activities funded by the grant:
a. a decision to close and/or relocate any main or staffed branch office;
b. change of chairperson of the governing/policy body (including the new
chairperson’s name, telephone number, and e-mail address);
c. change of chief executive officer (including the new chief executive officer’s name,
telephone number, and e-mail address);
d. change in its charter, articles of incorporation, by-laws, or governing body structure;
or
e. change in its main e-mail address or its website address (URL).
108
33
15.
It will notify the LSC OIG Hotline (Telephone: 800-678-8868 or 202-295-1670; Email [email protected]; Fax 202-337-7155) within two (2) business days of the
discovery of any information that gives it reason to believe it has been the victim of a
loss of $200 or more as a result of any: willful misrepresentation or theft of time, crime,
fraud, misappropriation, embezzlement, or theft involving property, client funds, LSC
funds, as well asand/or non-LSC funds used for the provision of legal assistance; or
when the grantee has contacted local, state, or Federal law enforcement officials are
contacted by the program about a crime. It also will notify the OIG if it has been the
victim of a theft of items such as credit cards, check stock, passwords, or electronic
access codes that could lead to a loss of $200 or more. The required notice shall be
provided regardless of whether the funds or property are recovered. Once it has
determined that a reportable event has occurred, it agrees it will contact the OIG before
conducting its own investigation into the occurrence.
16.
It will notify the LSC Office of Compliance and Enforcement (OCE) within twenty (20)
calendar days whenever:
(a) under the provisions of § 1006(f) of the LSC Act, 42 U.S.C. § 2996e(f), the
Applicant receives any notice of a claim for attorneys’ fees. The Applicant also will
forward, upon receipt, a copy of the pleading requesting these attorneys’ fees;
(b) any of the following events likely to have a substantial impact on its delivery of
services occur:
(i)
(ii)
a monetary judgment, sanction or penalty has been entered against it;
it enters into a voluntary settlement of an action or matter which involves the
payment of a monetary judgment, sanction or penalty;
(iii) it experiences a force majeure event.
(c) any of a grantee’s key officials (executive director, chief financial officer, or other
key financial official) is charged with fraud, misappropriation, embezzlement, theft,
or any similar offense, or is subjected to suspension, loss of license, or other
disciplinary action by a bar or other professional licensing organization.
17.
It will maintain all records pertaining to the grant during the grant year and for such
period(s) of time as prescribed by the Accounting Guide for LSC Recipients, Appendix
II (2010 Edition) after expiration of the grant year. With respect to financial records, it
will maintain originals (or digital images thereof unless otherwise required by applicable
law) of all financial records and supporting documentation sufficient for LSC to audit
and determine whether the costs incurred and billed are reasonable, allowable and
necessary under the terms of the grant. LSC retains the right to perform an audit, or
engage independent auditors to do so, whether during or subsequent to the grant period.
18.
It will, in accordance with internal policies, retain and preserve closed client files for a
period of not less than five (5) years from the date the file is closed or for the period set
by Federal, state, or local rules on maintenance of records, whichever is longer.
109
34
19.
In the event that the Applicant merges or consolidates with another LSC grantee,
changes its current identity or status as a legal entity, or ceases to be a direct recipient of
LSC grant funds at the end of the grant term or during the grant term for whatever
reason, it agrees:
a. to provide the LSC Office of Program Performance (OPP) with written notice at least
sixty (60) calendar days prior to any of the above events (except when the LSC grant
relationship changes as a result of LSC action);
b. not to transfer its interests in its LSC grant to another entity without prior approval
from LSC for such transfer, including submission to LSC and approval by LSC of a
Successor in Interest Agreement;
c. to ensure that any successor entity maintains the Applicant’s records, including
financial records, for a period of six (6) years after expiration of the grant year to
which they pertain and maintains client files for a period of not less than five (5)
years after the closure of the case to which they pertain;
d. to submit to the LSC OPP, either at the time that it provides the written notice in (a)
above, or within fifteen (15) calendar days from being notified by LSC that it will
cease to be a recipient of LSC grant funds, a plan for the orderly conclusion of the
role and responsibilities of the Applicant as a recipient of LSC funds. Detailed
instructions for preparing this plan are at www.grants.lsc.gov under the title
“Planning the Orderly Conclusion of the Role and Responsibilities of a Recipient of
LSC Funds.” Once at the website, click “RIN,” then locate the instructions under
“Grantee Guidance.”
20.
It agrees to cooperate with LSC in its efforts to follow up on audit findings,
recommendations, significant deficiencies or material weaknesses, and corrective actions
by LSC, including the OIG, or the GAO, and/or with the findings, recommendations or
significant deficiencies or material weaknesses found by the Applicant's IPA to ensure
that instances of deficiencies and noncompliance are resolved in a timely manner. It
agrees to expeditiously resolve all such reported audit findings, significant deficiencies
or material weaknesses, and corrective actions, including those of sub-recipients, to the
satisfaction of LSC.
110
35
21.
It will use the LSC logo on any Internet website page that may serve as a “homepage”
for the Applicant, and on its Annual Report, press releases, and official letterhead, and
may use the logo on other official documents such as business cards, newsletters,
telephone directory listings or other advertisements or announcements about services
provided by the Applicant and supported with LSC funds. It understands that the LSC
logo is a registered service mark of LSC and that permission to use the logo is provided
to Applicant under a limited license such that the logo may be used: (1) only while
Applicant is receiving LSC funds; (2) only for the purposes described above; and (3)
only in accordance with such size, format and color instructions as LSC provides. Other
uses of the logo are not permitted unless expressly authorized in writing by LSC.
Electronic and camera-ready versions of the logo are available at www.grants.lsc.gov.
Once at the website, click “Resources,” then click “Reference Materials” to access the
logo.
____________________________________
Name of Executive Director
____________________________________
Name of Governing/Policy Board Chairperson
(or other organization official authorizing this
application)
____________________________________
Title
____________________________________
Title
____________________________________
Signature
____________________________________
Signature
____________________________________
Date
____________________________________
Date
111
36
Legal Services Corporation
America’s Partner For Equal Justice
OFFICE OF LEGAL AFFAIRS
ADVISORY OPINION
Advisory Opinion # AO-2014-005
Date:
June 9, 2014
Subject:
Part 1612 Lobbying Activities
QUESTION PRESENTED
What communications by recipients of LSC funding are prohibited “attempts to
influence” government decisionmaking under 45 C.F.R. Part 1612, and what communications
are permitted under that regulation?
BRIEF ANSWER
The restrictions at 45 C.F.R. § 1612.3 prohibit attempts to influence government
decisionmaking through communications addressing actions the government should or should
not take. The restrictions do not prohibit creating or distributing information about the impact
and effects of actual or potential government actions, so long as that information does not
advocate outcomes of government decisionmaking.
BACKGROUND
Advisory Opinion 2013-010 and Program Letter 13-5 discuss the framework of the LSC
lobbying restrictions appearing at 45 C.F.R. Part 1612, which implement statutory restrictions in
the LSC Act and LSC’s annual appropriation. The National Legal Aid and Defender Association
and the chief executive officers of the organizations that publish the Clearinghouse Review and
the Management Information Exchange Journal requested further guidance from LSC on the
scope of the “attempt to influence” prohibitions in the legislation and Part 1612. This opinion
addresses the restrictions in 45 C.F.R. § 1612.3 on “attempts to influence” legislative, executive,
and administrative activities (hereinafter “government decisionmaking”) and how they affect
recipient communications about government decisionmaking.
As discussed in AO 2013-010, the language of the attempt-to-influence restrictions is
broad, and the legislative history and judicial interpretations relating to the attempt to influence
provisions indicate that the provisions are intended to be broadly construed. The LSC Act
provides that the Corporation shall:
insure that no funds made available to recipients by the Corporation shall be used
at any time, directly or indirectly, to influence the issuance, amendment, or
revocation of any executive order or similar promulgation by any Federal, State or
Local agency, or to undertake to influence the passage or defeat of any legislation
112
AO-2014-005
June 9, 2014
Page 2
by the Congress of the United States, or by any State or local legislative bodies, or
State proposals by initiative petition.
42 U.S.C. § 2996f(a)(5)(emphasis added).
The restrictions in the LSC appropriations legislation contains materially similar
substantive prohibitions and adds language that bars “attempts to influence” executive or agency
actions “of general applicability and future effect.” Pub. L. 104-134, § 504(a)(2)–(5) (1996)
(incorporated by reference thereafter). Under section 504(a),
[n]one of the funds appropriated in this Act to the Legal Services Corporation
may be used to provide financial assistance to any person or entity (which may be
referred to in this section as a recipient)—
(2) that attempts to influence the issuance, amendment, or revocation of any
executive order, regulation, or other statement of general applicability and
future effect by any Federal, State or local agency;
(3) that attempts to influence any part of any adjudicatory proceeding of any
Federal, State, or local agency if such part of the proceeding is designed for
the formulation or modification of any agency policy of general applicability
and future effect;
(4) that attempts to influence the passage or defeat of any legislation,
constitutional amendment, referendum, initiative, or any similar procedure of
the Congress or a State or local legislative body;
(5) that attempts to influence the conduct of oversight proceedings of the
Corporation or any person or entity receiving financial assistance provided by
the Corporation . . . .
Id. (emphasis added). These “attempt-to-influence” restrictions in the appropriations legislation
are entity restrictions—they preclude LSC from providing financial assistance “to any person or
entity” engaging in the enumerated activities regardless of the funding source for those activities
(subject to a blanket exception for tribal funds and limited exceptions for non-LSC funds). See
45 C.F.R. §§ 1610.2(b) and 1610.4 (1996 restrictions on non-LSC funds) and 45 C.F.R. 1612.6
(non-LSC funds exceptions to Part 1612).
The House Committee report accompanying the 1996 restrictions states that:
The Committee understands that advocacy on behalf of poor individuals for
social and political change is an important function in a democratic society.
However, the Committee does not believe such advocacy is an appropriate use
of Federal funds. The Committee notes that there are hundreds of private
organizations which can and do fulfill this advocacy role. The Committee notes
113
AO-2014-005
June 9, 2014
Page 3
that any funding devoted to advocacy is funding taken away from basic legal
assistance.
H.R. Rep. No. 104-196, at 119-21 (1996) (emphasis added). This report language associates the
“attempt-to-influence” prohibitions with “advocacy.”
In interpreting these provisions, the Second Circuit has stated that “the restrictions here
placed on grantees are not narrow; they are extremely broad” and that the “language imposes a
sweeping restriction on grantee activity.” Velazquez v. Legal Services Corp., 164 F.3d 757, 766,
767-68 (2d Cir. 1999), aff’d, 531 U.S. 533 (2001).
The LSC regulations implement these statutory restrictions, providing that recipients
“shall not attempt to influence”:
(1) The passage or defeat of any legislation or constitutional amendment;
(2) Any initiative, or any referendum or any similar procedure of the Congress,
any State legislature, any local council, or any similar governing body acting in
any legislative capacity;
(3) Any provision in a legislative measure appropriating funds to, or defining or
limiting the functions or authority of, the recipient or the Corporation; or,
(4) The conduct of oversight proceedings concerning the recipient or the
Corporation.
45 C.F.R. § 1612.3(a). Furthermore, the regulations provide that “recipients shall not”:
participate in or attempt to influence any rule-making, or
attempt to influence the issuance, amendment, or revocation of any executive
order.
45 C.F.R. § 1612.3(b).
45 C.F.R. § 1612.2 provides a number of relevant definitions, the most significant of
which are as follows.
(b)(1) Legislation means any action or proposal for action by Congress or by a
State or local legislative body which is intended to prescribe law or public policy.
The term includes, but is not limited to, action on bills, constitutional
amendments, ratification of treaties and intergovernmental agreements, approval
of appointments and budgets, and approval or disapproval of actions of the
executive.
...
114
AO-2014-005
June 9, 2014
Page 4
(c) Public policy means an overall plan embracing the general goals and
procedures of any governmental body and pending or proposed statutes, rules,
and regulations.
...
(d)(1) Rulemaking means any agency process for formulating, amending, or
repealing rules, regulations or guidelines of general applicability and future effect
issued by the agency pursuant to Federal, State or local rulemaking procedures . . . .
45 C.F.R. § 1612.2 (emphasis added).
The LSC regulations provide a non-exhaustive list of permissible activities. These are
not exceptions to the rule, but rather examples of activities that fall outside of the prohibitions.
When adopting the rule in 1997, LSC stated that:
As with prior regulations regarding lobbying and rulemaking, the final regulation
seeks to clarify the activities that are not prohibited by the rule. This list is not
intended to be exhaustive. Rather, it seeks to clarify those instances likely to raise
close questions.
62 Fed. Reg. 19,400, 19,401 (April 21, 1997) (preamble to the final rule) (emphasis added). 45
C.F.R. § 1612.5(c) provides three examples relevant to this opinion:
(c) Nothing in this part is intended to prohibit a recipient from:
...
(2) Communicating with a governmental agency for the purpose of obtaining
information, clarification, or interpretation of the agency’s rules, regulations,
practices, or policies [which is also excluded from the definition of
“rulemaking” at 45 C.F.R. § 1612.2(d)(2)(ii)];
(3) Informing clients, other recipients, or attorneys representing eligible
clients about new or proposed statutes, executive orders, or administrative
regulations;
...
(6) Advising a client of the client’s right to communicate directly with an
elected official;
...
115
AO-2014-005
June 9, 2014
Page 5
45 C.F.R. § 1612.5(c)(2), (3) & (6).1
Part 1612 does not define “attempt to influence.” Some additional guidance on the
meaning of “influence” appears in the definition of “grassroots lobbying,” which is subject to a
separate prohibition at 45 C.F.R. § 1612.4. Section 1612.2(a)(1) defines grassroots lobbying as
an action that includes “a direct suggestion to the public to contact public officials” regarding
“pending or proposed” government decisionmaking or “participation by recipients in any . . .
lobbying campaign . . . for the purpose of influencing” government decisionmaking. Section
1612.2(a)(2) states that grassroots lobbying “does not include communications which are limited
solely to reporting on the content or status of, or explaining, pending or proposed legislation or
regulations.” LSC has determined that providing that type of explanatory information is not, by
itself, participating in a lobbying campaign for the purpose of influencing government
decisionmaking. Thus, the same type of explanatory information also does not, by itself,
constitute an attempt to influence government decisionmaking.
LSC added the term “or explaining” to this provision in the final rule to expand on the
phrase “report on the effects” in the interim rule. LSC noted “that it is appropriate for recipients
to prepare communications explaining the meaning [of] and analyzing pending or proposed
legislation,” which could include “what the legislation does, the changes it would make in
existing laws, the problems which the proposed legislation addresses, and who would be affected
by the proposal.”
Nonetheless, LSC cautioned that “recipients could not prepare
communications which encourage the public to support or oppose proposed or pending
legislation.” 62 Fed. Reg. 19,400, 19,401 (April. 21, 1997) (preamble to the final rule).
ANALYSIS
Examples of activities explicitly permitted under 45 C.F.R. § 1612.5(c)
The “attempt to influence” prohibition is a broad statutory restriction, but not without
limit. The examples of permissible activities provided in section 1612.5(c) identify ways in
which recipients are permitted to communicate regarding government decisionmaking that do
not constitute “attempts to influence” as that term is used in the regulation. These examples are
not exhaustive and provide context for analyzing other situations. Impermissible “attempts to
influence” usually involve some statement about what decision the government should make
1
45 C.F.R. § 1612.5 identifies several other categories of permissible activities using any funds –
“administrative representation for an eligible client in a proceeding that adjudicates the particular rights or
interests of such eligible client,” “negotiations directly involving that client’s legal rights or
responsibilities . . .”, and participation “in litigation challenging agency rules, regulations, guidelines or
policies . . .” Id. § 1612.5(a) & (b). 45 C.F.R. § 1612.6 identifies permissible activities using non-LSC
funds, including responding to a written request from a governmental agency (§ 1612.6(a)) and
participating in a public rulemaking proceeding (§ 1612.6(e)). The questions raised by the National Legal
Aid and Defender Association and the chief executives of the Clearinghouse Review, and the
Management Information Exchange Journal do not focus on these activities, so they are not addressed in
this opinion.
116
AO-2014-005
June 9, 2014
Page 6
with regard to adopting or rejecting proposed policy. Conversely, permissible activities do not
involve communications advocating the adoption or rejection of proposed policy.
Section 1612.5(c)(2) permits communications with an agency “for the purpose of
obtaining information, clarification, or interpretation of the agency’s rules, regulations, practices,
or policies.” Such inquiries may include statements reflecting a recipient’s understanding of how
the rules, regulations, practices, or policies would operate and how they would affect the
eligible-client population.
Section 1612.5(c)(3) permits “[i]nforming clients, other recipients, or attorneys
representing eligible clients about new or proposed statutes, executive orders, or administrative
regulations.” This example permits recipients to both identify the government action and explain
how it could affect eligible clients. Thus, a recipient may provide information and analysis about
how pending or potential legislation will affect low-income people and the mechanics of how it
could be implemented. In doing so, however, an LSC recipient may not express an opinion
about what action the government should take regarding the legislation. Nor may an LSC
recipient suggest that other organizations or individuals should themselves lobby in favor of or
against the legislation. The permissible provision of information and education activities may
extend to other relevant audiences, such as community groups or other stakeholders. The
attempt to influence prohibition focuses not on the audience, but on the information conveyed.
Application of these examples
Application of the distinctions embedded in these examples is illustrated by two recent
articles. AO-2013-010 concluded that an article authored by an LSC recipient violated section
1612.3 because it stated that the failure by states to expand Medicaid “should not be allowed to
happen.” The article thus went well beyond an explanation of the effect of potential government
action on recipient clients and contained clear advocacy statements regarding the ultimate
government decision about potential legislation or regulations that every state had to consider.
Medicaid Expansion of the Affordable Health Care Act and the Supreme Court’s Decision: Will
Legal Services Programs Rise to the Challenge, 26 Management Information Exchange Journal
No. 4, 3 (2012).
By contrast, a different article by an LSC recipient regarding approaches to addressing
the condition of sheepherders did not violate section 1612.3 because it did not express any
position regarding government decisionmaking. The Sheepherder Project: Systemic Change for
Marginalized Workers, 45 Clearinghouse Review No. 45, 472 (2012). Rather, the article
described legislation in Colorado and the legislative process involved in the consideration of that
legislation, including the LSC recipient’s responses to legislators’ requests for information,
permitted under 45 C.F.R. § 1612.6(a). Id. at 477. The article also discussed litigation
challenging special procedures adopted by the U.S. Department of Labor exempting
sheepherders from many of the general H-2A regulatory protections.2 Id. The article did not
2
The article did not state if any LSC recipients were among the advocates who participated in this
litigation. 45 C.F.R. § 1612.5 states that an LSC recipient “may initiate or participate in litigation
117
AO-2014-005
June 9, 2014
Page 7
state an opinion regarding whether the procedures themselves should be repealed or replaced.
Rather, the article described the effect of the procedures on sheepherders and the process of
challenging the procedures under the Administrative Procedure Act. Id.
Application of Part 1612 to professional publications
The two articles referenced above illustrate another point: the “attempt-to-influence”
restrictions do not create exceptions for articles appearing in professional publications, as
contrasted to newspapers or other publications of wider circulation. There is nothing in the LSC
Act, the appropriations legislation, or the LSC regulations that suggests, for example, that
articles advocating the enactment or defeat of proposed legislation, or the repeal of a current
public law, do not constitute “attempts to influence” simply because they appear in a
professional publication or legal aid journal. Similarly, information distributed via e-mail,
electronic discussion groups, or other means can also violate Part 1612 if it involves prohibited
activities.
Proposals for legislative action
Part 1612 prohibits any “attempt to influence . . . [t]he passage or defeat of any
legislation,” and “legislation” is defined as “any action or proposal for action by Congress or by
a State or local legislative body which is intended to prescribe law or public policy.” 45 C.F.R.
§§ 1612.3(a)(1) (prohibition) and 1612.2(b)(1) (definition of “legislation”) (emphasis added). A
proposal for action necessarily occurs prior to the formal introduction of a bill and may include
advocacy for, or opposing, the introduction of a bill.
In analyzing the scope of these limitations on proposals for legislative action, we have
considered comparable limitations in the Internal Revenue Code and regulations issued by the
Internal Revenue Service (“IRS”) to implement the Code. These IRS statutes and regulations
address lobbying activities of 501(c)(3) organizations using the 501(h) election for lobbying
expenses. This statutory and regulatory framework is similar to Part 1612, and we believe that
its interpretation by the IRS provides useful guidance for the interpretation of Part 1612.
The Internal Revenue Code addresses “lobbying expenditures” that are “for the purpose
of influencing legislation,” which “includes actions with respect to Acts, bills, resolutions or
similar items” by any legislature, and “actions” are defined as “limited to the introduction,
amendment, enactment, defeat, or repeal of Acts, bills, resolutions, or similar items.” 26 U.S.C.
§ 4911(a), (c), (d), & (e), incorporated by reference at 26 U.S.C. § 501(h). For 501(h) elections,
the IRS defines both “direct lobbying” and “grassroots lobbying” as any communication that
“refers to specific legislation,” which “includes both legislation that has already been introduced
in a legislative body and a specific legislative proposal that the organization either supports or
opposes.” 26 C.F.R. §§ 56.4911-2(b) and (d)(1) (emphasis added). The IRS then provides the
following example involving potential legislation that has not been introduced:
challenging agency rules, regulations, guidelines or policies, unless such litigation is otherwise prohibited
by law or Corporation regulations.”
118
AO-2014-005
June 9, 2014
Page 8
Example 2. An organization based in State A notes in its newsletter that State Z
has passed a bill to accomplish a stated purpose and then says that State A should
pass such a bill. The organization urges readers to write their legislators in favor
of such a bill. No such bill has been introduced into the State A legislature. The
organization has referred to and reflected a view on a specific legislative proposal
and has also encouraged readers to take action thereon.
Id. at 59.4911-2(d)(1)(iii). The IRS concludes that the language for a bill that could be
introduced, but has not been introduced, is a “specific legislative proposal” subject to these
lobbying rules. Likewise, under Part 1612, the same type of action would constitute a prohibited
attempt to influence legislation.
With respect to potential legislative proposals, the IRS also considered and ultimately
rejected a test based on how “imminent” the potential legislation might be. In 1990 revisions to
regulations regarding lobbying, the IRS deleted the reference to legislation “to be submitted
imminently.” The IRS stated that “the term implies that a temporal standard determines whether
or not an unintroduced legislative proposal is ‘specific legislation’ that can be influenced.” The
IRS concluded that “[g]iven the nature of the legislative process, a temporal standard is
inappropriate and underinclusive. For example, numerous specific legislative proposals are
subject to extensive scrutiny, debate and controversy long before they are formally introduced as
a bill. Moreover, effective lobbying could prevent a bill from ever being introduced.” 55 Fed.
Reg. 35,579, 33,581 (Aug. 31, 1990) (final rules regarding 501(h) elections and lobbying by
private foundations) (emphasis added). For these reasons, we likewise believe that the
application of the Part 1612 restriction applicable to legislative proposals should not turn on the
imminence of the potential legislation.
Finally, the distinction between impermissible attempts to influence legislation and
permissible creation or distribution of information discussed above also applies with respect to
“proposals” for legislative action. LSC recipients may provide the same types of explanatory
information about proposals for legislative action as they may for already-introduced legislation.
Such communications should not advocate for or against such proposals.
Communications regarding funding for LSC and its recipients and restrictions on
recipient functions
Subject to exceptions provided in 45 C.F.R. §§ 1612.5 and 1612.6, section 1612.3(a)(3)
prohibits attempting to influence “any provision in a legislative measure appropriating funds to,
or defining or limiting the functions or authority of, the recipient or [LSC].” This provision
prohibits a recipient from expressing an opinion regarding how much funding Congress should
appropriate for LSC, which would include a general statement that Congress should substantially
increase funding. This provision likewise prohibits a recipient from attempting to influence the
existence or scope of the restrictions on recipient functions.
45 C.F.R. § 1612.6(f) expressly permits recipients to use non-LSC funds to communicate
regarding state or local funding of the recipient:
119
AO-2014-005
June 9, 2014
Page 9
Recipients may use non-LSC funds to contact or communicate with, or respond to
a request from, a State or local government agency, a State or local legislative
body or committee, or a member thereof, regarding funding for the recipient,
including a pending or proposed legislative or agency proposal to fund such
recipient.
Notably, this provision does not permit use of non-LSC funds for communicating with the
federal government about federal funding for LSC or LSC recipients.
A recipient may educate government officials or the officials’ staff about the work of the
recipient and the types of problems and challenges experienced by the recipient itself and the
recipients’ client community. Given the breadth of the attempt to influence restrictions,
however, the recipient should make clear that it is not attempting to influence the passage or
defeat of any measure and should carefully consider the Part 1612 requirements when planning
such communications.
45 C.F.R. § 1612.5(c)(4) expressly permits “[c]ommunicating directly or indirectly with
the Corporation for any purpose including commenting upon existing or proposed Corporation
rules, regulations, guidelines, instructions and policies.” LSC recipients may also communicate
with others about their interpretations of LSC regulations and about how restrictions will apply
to specific situations. Such communications do not eliminate the requirement that recipients
comply with the LSC restrictions as LSC interprets them. LSC’s Office of Legal Affairs
welcomes questions regarding the interpretation of LSC’s regulations.
CONCLUSION
The restrictions at 45 C.F.R. § 1612.3 prohibit attempts to influence government
decisionmaking through communications addressing what actions the government should or
should not take. The restrictions do not prohibit communicating information about the impact
and effects of actual or potential government actions, so long as that information does not
advocate outcomes of government decisionmaking.
MARK FREEDMAN
Senior Assistant General Counsel
RONALD S. FLAGG
Vice President & General Counsel
120
MEMORANDUM
TO:
Chair and Members, ABA Standing Committee on Legal Aid and Indigent
Defendants (SCLAID)
FROM:
Shubi Deoras, Consultant to SCLAID on Civil Right to Counsel Activities
DATE:
July 28, 2014
RE:
Report on SCLAID’s Activities and Recent Developments Relating to Civil
Right to Counsel
______________________________________________________________________________
This memorandum provides a report on SCLAID’s current activities, as well as recent
noteworthy developments, on the civil right to counsel front:
“ABA Resource Manual for Judges on Appointment of Counsel in Civil Proceedings”
SCLAID is completing its multi-year project (with the ABA Working Group on Civil Right to
Counsel and the National Coalition for a Civil Right to Counsel) to produce an online resource
manual cataloguing all law in the fifty states (plus D.C.) regarding the authorization or
requirement to appoint counsel in civil proceedings. The Manual will be posted on the ABA
web site sometime during the first week of August 2014 (prior to the ABA Annual Meeting),
after which announcements of the resource will be sent to state judges throughout the country.
Recent Civil Right to Counsel Developments Across the Country
·
California: In 2012, the San Francisco City Council established a pilot project to increase
pro bono legal representation in certain housing cases. In May 2014, initial results from the
project were released within the “San Francisco Right to Civil Counsel Pilot Program
Documentation Report,” which is available online at
http://www.sfbos.org/Modules/ShowDocument.aspx?documentid=49157.
·
Colorado: In In re Petition of R.A.M., --P.3d --, 2014 WL 2148793 (Colo. App. 2014, a
Colorado appeals court recently held that a non-consenting father has a due process right to
counsel in a termination of parental rights proceeding initiated by the other parent.
·
Florida: The Florida state legislature recently passed HB561, which requires the
appointment of counsel for certain children (such as children who have developmental
disabilities, reside in skilled nursing care facilities, or are victims of human trafficking) in
dependency and termination of parental rights cases.
·
New Jersey: In Parness-Lipson v. Parness, 2014 WL2533783 (N.J. App. 2014), a New
Jersey appeals court extended the right to counsel for incarcerated contemnors, finding the
litigant in that case (who had been incarcerated for failure to pay child support) to be indigent
and therefor entitled to appointment of counsel during his Matthei hearing (i.e., a periodic
civil contempt review hearing).
1
121
·
New York: New York City Council members have filed three separate bills that would
establish rights to counsel for low-income individuals (including seniors and those with
minor children) in eviction and foreclosure proceedings in New York City.
·
Washington: In In re J.A., 2014 WL 2601713 (Wa. App. 2014) (unpublished), the
Washington Court of Appeals ruled, in an unpublished opinion, that a trial court had abused
its discretion in refusing to appoint counsel for a foster child in a dependency proceeding.
The appellants are seeking publication of the opinion.
·
National/Immigration: A federal bill known as the “Vulnerable Immigrant Voice Act” (HR
4936) has been proposed that would provide a right to counsel in immigration proceedings to
unaccompanied minors and those with disabilities. Further, the ACLU, American
Immigration Counsel, Northwest Immigrant Rights Project, Public Counsel, and K&L Gates
LLP have filed a class action lawsuit in federal court seeking a constitutional right to counsel
for all immigrant children in deportation proceedings.
2
122
12
Maryland Bar Journal
July 2014
123
A Right to
Counsel In
Critical Civil Cases
and the Role
of the
Private Bar
By Ward B. Coe III and Debra Gardner
On August 7, 2006, at the urging of its thenPresident Michael Greco, the American Bar
Association (ABA) House of Delegates unanimously resolved:
The American Bar Association urges federal,
state, and territorial governments to provide
legal counsel as a matter of right at public
expense to low income persons in those
categories of adversarial proceedings where
basic human needs are at stake, such as those
involving shelter, sustenance, safety, health
or child custody, as determined by each
jurisdiction.
American Bar Association Task Force on Access
to Civil Justice, ABA Resolution on Right to
Counsel, 15 TEMP. POL. & CIV. RTS. L. REV.
508 (2006) (ABA Resolution). The author was
proud to be present at such a historic event
and prouder still of the Maryland delegation
that was part of that unanimous vote. However
proud she was, though, she was not surprised
because three years earlier the Maryland State
Bar Association (MSBA) itself had spoken eloquently on the subject. But I am getting ahead
of myself.
124
July 2014
Maryland Bar Journal
13
The notion of a civil right to counsel
did not begin with the ABA Resolution.
And, while it is sometimes casually (and misleadingly) referred to as
Civil Gideon, for the landmark case
of Gideon v. Wainwright, 372 U.S. 335
(1963), it did not begin with Gideon,
either. The concept can be traced to the
Magna Carta (“To no one will we sell,
to no one will we refuse or delay, right
or justice.”) and a Tudor era codification. That English law provided that
“the Justices . . . shall assigne to the
same pou psone or psones Councell
lerned by their discrecions which shall
geve their Councelles nothing taking
for the same, and in like wise the same
Justices shall appoynte attorney and
attorneies for the same pou psone or
psones . . . .” 11 HEN. 7, ch. 12 (1495),
reprinted in 2 STATUTES OF THE
REALM 578 (1816), microformed on
Microcard No. 55E53 (Matthew Bender
& Co.) Article V of the Maryland
Declaration of Rights incorporates this
and other English Common Law into
Maryland’s common law. A right to
counsel in civil cases involving basic
human needs and fundamental interests may also lie in Articles XVIV and
XXIV. However, the modern Court
of Appeals of Maryland has thus far
declined to speak on the subject. See
Frase v. Barnhart, 379 Md. 100, 126
(2003).
The call for recognition of a civil
right to counsel is motivated by the
staggering and unmet need for legal
advocacy for the poor, which can be
observed daily in Maryland courtrooms and clerks’ offices, in the waiting areas of Legal Aid’s eleven offices
throughout the state, as well as those
of all of the other civil legal services
providers and pro bono programs
funded through the Maryland Legal
Services Corporation, MSBA and local
bar foundations. Every innovation
14
Maryland Bar Journal
July 2014
has been brought to bear to replace
dwindling federal financial support
for civil legal services and Maryland
is a national leader in these efforts,
including Interest on Lawyers’ Trust
Accounts (IOLTA) programs, civil filing fee surcharges, and aggressive
private fundraising. In addition,
resources have been stretched as far
as they will go through programs
providing limited advice to those who
are forced to represent themselves,
Internet-accessed and other legal educational materials, and proposed rules
to facilitate limited scope representation, among others.
The result of all of these efforts: the
poor, overall, have barely held their
ground. Steady increases in the poverty
population and continued stagnation
of federal funding have offset the gains
made by equal access to justice advocates in Maryland and throughout the
nation. Studies continue to show the
same level of unmet need for legal services among those who cannot afford
to hire a lawyer. See LEGAL SERVICES
CORPORATION, DOCUMENTING
THE JUSTICE GAP IN AMERICA
13-15 (2009), available at http://www.
lsc.gov/sites/default/files/LSC/
pdfs/documenting_the_justice_gap_
in_america_2009.pdf (demonstrating
the persistence over decades of the
fact that existing resources for civil
legal aid meet less than one in five
civil legal needs experienced by poor
Americans); see also Action Plan for Legal
Services to Maryland’s Poor, A Report of
the Advisory Council of the Maryland
Legal Services Corporation, at ix (1988).
Such statistics about how many
poor people are forced to go without
lawyers when they need them tell
only part of the story. The day to
day practice of law tells the rest. The
presence of lawyers in a civil case
makes a substantial difference to the
125
outcome of the proceedings, which
is why those who can afford lawyers
hire them. Parties without lawyers
are far more likely to default. See
Carroll Seron et al., The Impact of Legal
Counsel on Outcomes for Poor Tenants in
New York City’s Housing Court: Results
of a Randomized Experiment, 35 LAW
& SOC’Y REV. 419, 427 (2001) (indicating that an experiment showed
only 16 percent of represented parties
default versus 28 percent of unrepresented); see also Steven Gunn, Note,
Eviction Defense for Poor Tenants: Costly
Compassion or Justice Served?, 13 YALE
L. & POL’Y REV. 385, 414, Tab. 18
(1995) (indicating a default rate of 0
percent for parties with lawyers, 19
percent for those without). Simple
procedural maneuvers that are commonplace for lawyers are beyond the
reach of the vast majority of unrepresented litigants. See Gunn, supra, at
412, Tab. 16 (73 percent of represented
litigants filed motions, compared with
8 percent of those without lawyers);
Anthony J. Fusco, Jr. et al., Chicago’s
Eviction Court: A Tenant’s Court of No
Resort, 17 URB. L. ANN. 93, 115 (1979)
(35 percent of parties with lawyers
received continuances, while only 3
percent of those without did so).
The result, as any reader of this
article knows all too well, is entirely
predictable: Parties who are unrepresented and face a lawyer on the
other side are at a significant disadvantage. Their chances of prevailing are, on average, halved. Robert
H. Mnookin et al., Private Ordering
Revisited: What Custodial Arrangements
are Parents Negotiating?, in DIVORCE
REFORM AT THE CROSSROADS 37,
64 (Stephen D. Sugarman & Herman
Hill Kay eds., Yale Univ. Press, 1990);
Jane W. Ellis, Plans, Protections, and
Professional Intervention: Innovations in
Divorce Custody Reform and the Role
Of Legal Professionals, 24 U. MICH.
J.L. REFORM 65, 132 (1990). In certain kinds of cases the gap is worse.
Applicants for domestic violence
protection orders with lawyers succeed 83 percent of the time, while
only 32 percent of applicants without
lawyers obtain such orders. Jane C.
Murphy, Engaging With the State: The
Growing Reliance on Lawyers and Judges
to Protect Battered Women, 11 AM. U.J.
GENDER SOC. POL’Y & L. 499, 511–
12 (2003). Lawyers, in these and other
civil matters involving basic human
needs, “are necessities, not luxuries.”
Gideon, 372 U.S. at 344. The stakes for
indigent civil litigants in such cases
may be as great, or even greater, than
those for the criminal defendant. The
loss of custody of one’s child is a lifeshattering event more profound than
the prospect of a few days in jail. The
homelessness that may result from
eviction could have consequences far
more devastating for an entire family
than a short jail term for one family
member.
Hence, the renewed call in the 21st
century for a civil right to counsel in
cases involving basic human needs
and fundamental interests. ABA
Resolution at 521 (“The categories
contained in this resolution are considered to involve interests so fundamental and critical as to require
governments to supply lawyers to
low income persons who otherwise cannot obtain counsel.”). The
fundamental importance of providing legal protections for such basic
human needs is also grounded in
international human rights law. See
126
International Covenant on Economic,
Social & Cultural Rights, art. 10, Dec.
16, 1966, 963 U.N.T.S.14531. And this
is why “Civil Gideon” is a misnomer:
no one in the current debate advocates
for a right to counsel in all civil matters; the right to counsel in the critical
types of civil cases addressed in the
ABA Resolution is quite narrow and
would not encompass, for example,
tort actions for money damages and
other contingency fee cases. It is also
a right, perhaps obviously, that would
only inure to private individuals, not
business entities of any stripe, because
personal indigence is its touchstone.
What is the role of the private bar
in all this? There are at least four
such roles, the first of which is well
underway. As noted above, the ABA
has spoken unequivocally on the subJuly 2014
Maryland Bar Journal
15
ject. The MSBA has, as well. In 2003,
advocates in Maryland, including the
author, brought an appeal on behalf
of an indigent Eastern Shore mother
in a contested custody case where her
opponents had a lawyer, arguing that
she had a right to appointed counsel
under the Maryland Declaration of
Rights. While the majority of the Court
of Appeals declined to reach the issue,
having handed the mother a complete
victory on the merits of her appeal
otherwise, three members of the Court
concurred but would have reached
the right to counsel issue and would
have found the right attached to a
custody case such as was before the
Court. Frase, 379 Md. at 143. Among
the several amicus briefs presented
to the Court urging recognition of a
civil right to counsel in basic human
needs cases was the first amicus brief
ever known to have been filed by the
MSBA, in which it championed recognition of the right:
[T]he MSBA has a long and proud
tradition of supporting access to
justice for all citizens, and of carrying out the legal profession’s
16
Maryland Bar Journal
July 2014
responsibility to promote public
respect for the rule of law. The ideal
of equal access to justice remains
unfulfilled when a high percentage
of requests for urgent legal assistance made by indigent Maryland
citizens cannot be met by the best
efforts of existing civil legal aid
resources and pro bono services.
In addition, public respect for the
rule of law depends critically on
the legal system’s ability to mirror
the public’s perception that justice is administered evenhandedly. Studies have shown, however,
that as much as 80 percent of the
American public believes, mistakenly, that in urgent civil matters a
lawyer will be provided for persons who cannot afford one. This
gap between public perception and
reality threatens respect for the rule
of law.
When the legal system fails to protect the fundamental rights of a
citizen as a direct consequence of
that person’s inability to pay for
or be appointed counsel, a long
127
shadow is cast over the ability of
“the courts [to] maintain the confidence of the society and to perform the task of insuring that we
are a just society operating under
a rule of law.” Robert W. Sweet,
Civil Gideon and Confidence in a
Just Society, 17 Yale L. & Pol’y Rev.
503, 503 (1998). […] Appellant presents a compelling argument that
a right to counsel is guaranteed
to indigent Maryland citizens in
at least some civil contexts. The
recognition of such a right would
be consistent with widely held
notions of the basic fairness in our
civil justice system. According to a
poll conducted in 1991, 79 percent
of Americans believe that there
already exists a constitutional right
to free counsel for indigent citizens
in civil cases. Sweet, supra, at 504.
This mistaken impression likely
grows from the broad understanding and acceptance of the rationale
for providing counsel in criminal
cases: the notion that our adversary
system requires a rough balance
of ability to present the opposing
sides of a case. See Garcia, The Right
to Counsel Under Siege: Requiem for
an Endangered Right, 29 Am. Crim.
L. Rev. 35, 49 (1991)(footnotes omitted). In this regard, it is noteworthy
that Gideon v. Wainwright is considered one of the most legitimate,
and popular, constitutional decisions of the Supreme Court. See
Garcia, supra. Gideon’s legitimacy
rests substantially on the notion
that the case “affirmed a right that
is now fundamentally accepted in
our society.” Krash & Lewis, The
History of Gideon v. Wainwright,
10 Pace L. Rev. 379, 382 (1990).
Conversely, the reality that counsel
is often not available to indigent
persons in civil cases whose fundamental rights are at stake is at odds
with society’s basic understanding
of equal justice.
Brief for Maryland State Bar
Association, Inc., as Amicus Curiae
Supporting Appellant, at 1, 5-6, Frase
v. Barnhart, 379 Md. 100 (2003) (No.
6) (MSBA Amicus Brief). The private
bar’s use of its own bully pulpit in
support of a civil right to counsel has
thus been critical to the advancement
of the conversation in the new millennium.
The private bar has also contributed mightily by providing pro bono
representation to persons seeking
to advance recognition of the right
through the courts in various states
around the country. As just one example, in Maryland, Ms. Frase was represented by the Honorable Stephen
H. Sachs, former Attorney General
of Maryland and Of Counsel at
WilmerHale (then Wilmer, Cutler &
Pickering) and by Deborah Thompson
Eisenberg, then a partner at the firm
of Brown, Goldstein & Levy, LLC.
The pro bono service of these private
lawyers, as co-counsel with the Public
Justice Center, was indispensable.
Should a civil right to counsel be
recognized and implemented, there
will, of course, be a significant role
for pro bono services in providing
representation to indigent litigants
entitled to appointed counsel in critical cases. Maryland’s Access to Justice
Commission has recommended that
implementation of the right be provided through reliance on willing grantee
participants in our “rich and diverse
[legal services] provider community,”
which includes many local and statewide pro bono placement programs.
Maryland Access to Justice
Commission, Implementing
a Civil Right to Counsel in
Maryland, at 4 (2011), available at
http://mdcourts.gov/mdatjc/pdfs/
implementingacivilrighttocounselinmd2011.pdf. But there is consensus
that such a right could never be fulfilled through pro bono services alone.
[A] right to counsel in civil cases
involving fundamental rights is a
critical component of the provision of equal justice. That attorneys
have a unique role in bringing the
ideal of equal justice into being,
and in advocating for effective
measures to ensure equal justice,
does not mean that attorneys must
bear the entire cost of providing
this societal need. As Judge Robert
Sweet, formerly of the United
States District Court for the District
of New York, so aptly described the
matter, the costs of a fair and functioning judicial system is one that
must properly be borne by society
at large:
[S]ociety’s paramount interest
must be in a just determination
of a person’s fundamental rights
and privileges. While there will
128
undoubtedly be a cost to providing counsel to impoverished
litigants, erosion of faith in the
judicial system would exact an
even higher price. To put it simply, denial of representation constitutes denial of access to real
justice.
As for the money to finance such
a constitutional right, it must
come from the public fisc as it
does for the representation of
criminals, security for the aged,
and protection for the poor and
the infirm.
Sweet, supra, at 506. Equal administration of justice is a core value
of the MSBA; it is the right, as
well as the responsibility of all
Marylanders.
MSBA Amicus Brief at 18.
Which leads directly to the final
critical role of the private bar. Whether
a civil right to counsel might eventually be recognized as a constitutional
right by a court, or enacted through
legislation or court rule, achieving the
promise of such a right will depend
on adequate public funding. The poor
of Maryland will need the private bar,
and its champion, the MSBA, to stand
shoulder to shoulder with them, and
with the rest of Maryland’s access to
justice community, to ensure that such
resources are provided. Only then will
our shared goal of equal access to justice be fully realized.
Mr. Coe is a partner at Gallagher Evelius
& Jones LLP and a former chair of the
Maryland Court of Appeals Standing
Committee on Pro Bono. Ms. Gardner
is the Legal Director of the Public
Justice Center. She may be reached at
[email protected].
July 2014
Maryland Bar Journal
17
AMERICAN BAR ASSOCIATION
Fund for Justice
and Education
ABA Division for Legal Services
Standing Committee on Legal Aid and Indigent Defendants
SCLAID
FY2013-2014
As of July 25, 2014
Primary Addressee
Robert E. Hirshon
The Honorable Sarah M. Singleton
E. Jane Taylor
Jonathan D. Asher
Janet R. Studley and Robert P. Trout
Schulte Roth & Zabel LLP
Justice Earl Johnson, Jr. (Ret.)
Lisa C. Wood
Hulett H. Askew
Robert A. Weeks
Neil G. McBride
Daniel T. Goyette
Norman Lefstein
Mark I. Schickman
Drucilla S. Ramey
Stephen F. Hanlon
Jack W. Londen
Maureen F. Essex
USA Funds
Contribution Total
129
Gift Amount
$7,614.00
Gift Date
11/26/2013
12/17/2013
12/19/2013
12/30/2013
12/29/2013
12/31/2013
12/31/2013
1/8/2014
1/8/2014
12/31/2013
12/31/2013
12/31/2013
12/31/2013
12/31/2013
1/29/2014
12/31/2013
12/31/2013
12/31/2013
3/19/2014
Exhibit 5.3
CHAIR
Don Bivens
Snell & Wilmer, LLP
One Arizona Center
400 East Van Buren
Phoenix, AZ 85004
(602) 382-6549
CHAIR-ELECT
Nancy Scott Degan
New Orleans, LA
VICE-CHAIR
Steven A. Weiss
Chicago, IL
SECRETARY
Beth L. Kaufman
New York, NY
BUDGET OFFICER
Koji F. Fukumura
San Diego, CA
REVENUE OFFICER
Palmer G. Vance II
Lexington, KY
PUBLICATIONS & CONTENT OFFICER
Lorelie S. Masters
Washington, DC
SECTION DELEGATES TO THE
HOUSE OF DELEGATES
Kim J. Askew (2015)
Dallas, TX
Dennis J. Drasco (2016)
Roseland, NJ
Lawrence J. Fox (2014)
Philadelphia, PA
David C. Weiner (2014)
Cleveland, OH
IMMEDIATE PAST SECTION CHAIR
William R. Bay
St. Louis, MO
FORMER CHAIRS
Ronald L. Marmer
Chicago, IL
Hilarie Bass
Miami, FL
BOARD OF GOVERNORS
REPRESENTATIVE
Robert L. Rothman
Atlanta, GA
COUNCIL MEMBERS
Hon. Nancy F. Atlas (2014)
Houston, TX
Zesara C. Chan (2014)
San Francisco, CA
Abbe F. Fletman (2014)
Philadelphia, PA
Bart L. Greenwald (2014)
Louisville, KY
Victoria T. McGhee (2014)
Houston, TX
Dennis P. Rawlinson (2014)
Portland, OR
Barbara J. Dawson (2015)
Phoenix, AZ
Christina L. Dixon (2015)
Denver, CO
Franchesca Hamilton-Acker (2015)
Lafayette, LA
Kelly Overstreet Johnson (2015)
Tallahassee, FL
Robert R. Simpson (2015)
Hartford, CT
David A. Soley (2015)
Portland, ME
Ruth A. Bahe-Jachna (2016)
Chicago, IL
Alfreda D. Coward (2016)
Fort Lauderdale, FL
Charles Denton (2016)
Grand Rapids, MI
Keathan B. Frink (2016)
Miami, FL
Horace W. Jordan, Jr. (2016)
Lake Forest, IL
Kent A. Lambert (2016)
New Orleans, LA
YOUNG LAWYERS DIVISION
REPRESENTATIVE
David B. Wolfe
Livingston, NJ
ADJUNCT YLD REPRESENTATIVE
Adrian K. Felix
Miami, FL
LAW STUDENT DIVISION
REPRESENTATIVE
R. Cody Bannon
Washington, DC
DIRECTOR
Veronica M. Muñoz
(312) 988-5592
ASSOCIATE DIRECTOR
Linda D. Caradine-Poinsett
(312) 988-6236
MEMORANDUM
Section of Litigation
321 North Clark Street
Chicago, IL 60654-7598
(312) 988-5662
FAX: (312) 988-6234
www.ambar.org/litigation
DATE:
April 23, 2014
TO:
ABA Board of Governors
FROM:
Don Bivens, Chair
Section of Litigation
Cc:
Veronica Muñoz—Section of Litigation
SUBJECT:
Section of Litigation Funding of Outside Legal Service Organizations
The Section of Litigation seeks the approval of the ABA Board of Governors (BOG) to
fund the following organizations for FY2013-2014. Each year, the Section provides funds
to organizations that deliver pro bono legal services to low-income, underserved, and
under-represented populations. The total funding amount for all three organizations is
$15,000.

Bay Area Legal Services
o Funding Amount: $5,000
o Location: Tampa, FL
o Purpose: To fund an ambitious campaign, including a multi-media
extravaganza event honoring a number of “Local Legends” in the Tampa
Bay area legal community

Legal Aid Society of Middle Tennessee and the Cumberlands
o Funding Amount: $5000
o Location: Nashville, TN
o Purpose: To expand and deepen the relationships with rural attorneys,
private law firms, government agencies, and private business for the 2014
Campaign by hosting a series of lunches to reintroduce the organization to
their legal community and invite the legal community to participate in the
Campaign

Montana Legal Services Association
o Funding Amount: $5,000
o Location: Helena, MT
o Purpose: To assist in launching the organization’s first Private Bar
Campaign. The funds will be used, along, with matching funds, to create
and distribute a donor mailing list, develop a donor impact report, print
essential materials, and design a biannual electronic newsletter
Section funds not derived from dues will be used for this contribution. The Section and
ABA will not be exposed to liability for unanticipated expenses and/or net losses. No
ABA general revenue funding is requested or required.
Thank you for your consideration.
130
281 of 292
FINANCE COMMITTEE
McCANDLESS
A.
MATTERS FOR REVIEW BY THE BOARD
5.1
Request from Judicial Division to Contribute to the Hon. William F. Dressel
Scholarship Endowment
The Board approved the request from the Judicial Division, along with its National
Conference of State Trial Judges, National Conference of Specialized Court Judges, and
National Conference of the Administrative Law Judiciary (collectively referred to herein
as the “JD Contributors”), to make a financial contribution from JD Contributors reserve
funds to the Hon. William F. Dressel Scholarship Endowment in the amount of
$2,500.00.
5.2
Request from the Council of the Fund for Justice and Education Regarding
Society of Saratoga Legacy fund
The Board approved request of the Council of the Fund for Justice and Education (“FJE
Council”) to increase the membership level for donors pledging a bequest to the Society
of Saratoga Legacy Fund from the current $1,000 level to $10,000.
5.3
Request from Section of Litigation to Fund Outside Legal Organizations
The Board approved the request from the Section of Litigation request to contribute from
section funds $15,000 to three outside Legal Services organizations in the amount of
$5,000 each to a) Bay Area Legal Services; b) Legal Aid Society of Middle Tennessee
and the Cumberland; and c) Montana Legal Services Association.
5.4
Grant Awards/Modifications Report
The Board of the American Bar Association Fund for Justice and Education accepted the
restricted grants and contributions received or awarded through March 31, 2014 and not
previously reported, as requested by the Association's Financial Services Division.
5.5
Request for Funding of Presidential Task Force on Stand Your Ground Laws
The Board tentatively approved the request from the Presidential Task Force on Stand
Your Ground Laws for $30,000 for FY2015 to implement its Final Report with
recommendations. In approving the request, it is understood that this recommendation
does not impact the Program’s priority support for funding of $185,000 for the Center on
Children and the Law as recommended to the Finance Committee at its April 10-11,
2014 meeting.
5.6
Commission on Domestic & Sexual Violence Funding Request for the 210th
Anniversary of the Violence Against Women Act
The Board tentatively approved the request of the Commission on Domestic & Sexual
Violence for the FY2015 budget in the amount of $30,000 to support a signature
_______________________
Summary of Action
June 5-6, 2014, Board of Governors Meeting
Page 16
131
American Bar Association
Communications and Media Relations Division
www.ambar.org/news
Release:
Immediate
Contact:
Matt Cimento
Phone:
202-662-1092
Email:
[email protected]
Online:
http://www.americanbar.org/news/abanews/aba-newsarchives/2014/07/aba_announces_cataly.html
ABA announces catalyst grant winners for its Legal Access Job Corps
WASHINGTON, July 10, 2014 -- The American Bar Association announced the recipients of “catalyst”
grants given through the Legal Access Job Corps initiative established by ABA President James R.
Silkenat. The grants are available to bar associations, courts, law schools or other groups that propose to
employ new lawyers in innovative ways to address the legal needs of poor or moderate-income
individuals.
"The ABA's catalyst grants will help nurture innovative programs that bridge the unmet legal needs of our
society and the unmet employment needs of our young lawyers," Silkenat said. "We are working on ways
to get young lawyers to open new avenues to justice through programs that also give them practical
experience" he added.
To address the dual problems of the lack of adequate legal representation for disadvantaged
communities and the significant number of unemployed and underemployed lawyers, the ABA formed the
Legal Access Job Corps Task Force to study the issue. Co-chaired by Chief Judge Eric Washington of
the District of Columbia Court of Appeals, Allan Tanenbaum, managing partner at Equicorp Partners, and
Patricia White, dean of the University of Miami School of Law, studied various projects and initiatives and
chose the grant winners from a group of 96 proposals.
"We know the ABA can't solve the problem alone. But by joining with state and local institutions, we can
work together to find win-win solutions," task force co-chair Tanenbaum said of the grants, which are not
intended to be an ongoing source of funding but are meant to start or support projects that can be
sustained by other resources.
The projects awarded the grants are:
o
o
Legal Aid of Arkansas ($15,000) which will fund fellowships for newly admitted lawyers who will
serve under the direction of a legal aid lawyer representing clients in rural areas for one year.
After the initial year, the fellows will transition to a modest means panel serving people with
incomes between 125% and 250% of the federal poverty guidelines for an additional two years.
Nebraska State Bar ($15,000) in collaboration with the University of Nebraska College of Law
and Creighton University School of Law, which will operate a project to enhance access to
132
o
o
o
o
o
lawyers in rural areas by, among other things, facilitating summer clerkships for law students who
will be placed with rural law firms, gaining practice experience and a sense of life in less
populated areas.
University of Detroit Mercy School of Law ($15,000) which will launch the Solo and Small Firm
Incubator Program, which will provide a supportive environment for select new law graduates who
are committed to beginning a solo or small firm practice, and also demonstrate a commitment to
serving low and moderate income individuals.
Vermont Bar Association ($15,000) which will launch the Solo and Small Firm Incubator
Program, providing a supportive environment for select new law graduates who are committed to
beginning a solo or small firm practice, and also demonstrate a commitment to serving low and
moderate income individuals.
Loyola Law School – New Orleans ($15,000) which will launch an incubator program for new
graduates, who have an interest in social justice, resources including instruction, mentoring, case
referral and peer feedback.
Legal Aid Society of Orange County ($15,000) with the University of California School of Law
which will develop the Incubator in a Box project, a comprehensive program that will provide a
step-by-step resource to implement a regional incubator program.
Oakland County (Michigan) Bar Association ($5,400) which has collaborated with the Legal
Aid and Defenders Association and the Family Law Assistance Project to create the OCBP Pro
Bono Mentor Match Program. The grant funding will allow the collaborators to expand into the
areas of immigration and foreclosure.
The ABA remains committed to closing the justice gap in America and to developing new avenues of
employment and practice for unemployed and underemployed lawyers. "So many of our citizens have
never even met a lawyer or can't afford a lawyer,” Silkenat said. “It would seem natural to put those two
together and find the funding to make that work."
An ABA short video – “Be the Change” – highlights the issues and programs that help employ
underutilized lawyers while serving those who need a lawyer's help.
With nearly 400,000 members, the American Bar Association is one of the largest voluntary
professional membership organizations in the world. As the national voice of the legal profession,
the ABA works to improve the administration of justice, promotes programs that assist lawyers
and judges in their work, accredits law schools, provides continuing legal education, and works to
build public understanding around the world of the importance of the rule of law. View our privacy
statement on line. Follow the latest ABA news at www.ambar.org/news and on Twitter
@ABANews.
133
In Memoriam:
John D. Robb
1924–2014
J
ohn D. Robb was a brilliant, professional lawyer and a pillar of
the Albuquerque legal community. He was known for serving
clients to the absolute best of his abilities, while ensuring that the
legal profession continued to be an honorable, caring and kind
profession.
Mr. Robb was born in New York, N.Y., in 1924. He spent his
first year of college at Yale University. It was at that time that his
family moved to New Mexico and Mr. Robb spent the next two
years attending the University of New Mexico. As a member of
the Naval ROTC, Mr. Robb was called to serve his country in
World War II. After completing his military service, he attended
law school at the University of Minnesota and then returned to
Albuquerque, where he was a sole practitioner. In 1951, he joined
what is now known as Rodey, Dickason, Sloan, Akin & Robb, P.A.
(Rodey Law Firm). Over the years, Mr. Robb’s legal practice varied.
When he first started practicing law, he was involved in real estate
work. In the 1950s his practice began to revolve around uranium
litigation. When the uranium business in New Mexico fell off,
Mr. Robb practiced in real estate, public utility law and a variety
of other areas. This year was his 63rd year with the Rodey Law
Firm. In his later years at Rodey, Mr. Robb served as Of Counsel
to the firm while devoting most of his time and effort to legal aid.
A major part of Mr. Robb’s professional career was devoted to
Mr. Robb’s service to and efforts on behalf of the legal community
legal aid—both secular and Christian. He served as one of the
were beyond compare. He was a past national chairman of the
ABA’s principal representatives in establishing the National Legal
American Bar Association Committee on Atomic Energy. For
Services Corporation. Over the years he testified in support of
many years he served as national chairman of the American Bar
the National Legal Services program before committees of the
Association Standing Committee on Legal Aid and Indigent
U.S. House and Senate.
Defendants. He also served for many years on the national board
of the Christian Legal Society and on the international board of
During the last 28 years of his career, Mr. Robb was also a key
Lex Mundi, a professional network of hundreds of worldwide law
contributor to New Mexico Christian Legal Aid, which provides
firms. He was a member of the American Bar Association; Alboth legal and spiritual assistance to the poor and homeless
buquerque Bar Association; American Board of Trial Advocates;
by Christian lawyers and law students. This work involved asAmerican Judicature Society; Christian Legal Society; National
sisting communities in organizing
Legal Services, where he served as
and conducting Christian legal aid
an Advisory Committee Member
programs, the training of volunteer
for many years; National Legal Aid
“without Mr. Robb’s efforts on
Christian lawyers and law students
& Defender Association, where
behalf of Legal Services, the
to perform such services and in the
he served as a director for many
Corporation
as
we
know
it
may
preparation (with the assistance of
years; and the International Bar
nationally recognized Christian legal
not even exist today.”
Association.
aid lawyers) of numerous how-todo-it manuals dealing with various
Mr. Robb received many honors.
phases of Christian legal aid. In addition, Mr. Robb was the author
In 1995 he was honored as a recipient of the University of New
of a number of legal aid articles in various publications.
Mexico School of Law’s Distinguished Service Award. In 2008
Mr. Robb was named Outstanding Lawyer of the Year by the
In May of 2006 the American Bar Association honored Mr. Robb
Albuquerque Bar Association. In 2012 he was honored with the
with an award that recognized his early efforts in helping establish
Distinguished Bar Service Award by the State Bar of New Mexico.
the Legal Services Corporation and his continued efforts to secure
legal aid for the poor. Mr. Robb received the award in Washington
Mr. Robb was listed in The Best Lawyers in America for his
D.C., during a meeting of the American Bar Association’s Standing
expertise and experience in mining law and was just named AlCommittee on Governmental Affairs. The ABA stated in a letter
buquerque Mining Lawyer of the Year-2015 by The Best Lawyers
to Mr. Robb that “without Mr. Robb’s efforts on behalf of Legal
in America.
134
Bar Bulletin - July 30, 2014 - Volume 53, No. 31 7
Services, the Corporation as we know it may
not even exist today.”
the practice of law and why he had been equally successful in his
passionate and steadfast efforts to ensure that every individual
has equal access to justice:
Mr. Robb’s efforts on
behalf of legal aid are
not only known and
celebrated in New
Mexico, but across the
nation.
“The practice of law has satisfied me incredibly mentally.
I really enjoy the mental processes that we go through.
I like being a part of a system of justice. I really think
handling cases for clients has been a very rewarding thing
but most of that is physical and mental involvement.
What happens in legal aid work is you have that, but
it’s an affair of the heart, too. You have your heart—it’s
such a satisfying experience when you can actually be
of help. These are the most helpless of the helpless—the
homeless people that we’re dealing with primarily and
the fact that some lawyer advocate will go and step up
and help them, the fact that you can have a small role
in doing this, is one of the most satisfying experiences
that any lawyer can have.”
Mr. Robb was married
to his wife, Peggy, for
68 years until her passing earlier this year.
Together they had six
children, 20 grandchildren and three
John and Peggy Robb attend the
great grandchildren.
Justice for All Ball in 2009.
He was an avid sailor
who loved to teach
sailing to his grandchildren when he took time out from his efforts
on behalf of legal aid for the poor.
How do you summarize a career that spans 63 years? The following quote, taken from an interview of Mr. Robb in October 2006,
as part of the State Bar’s Senior Lawyers Division Oral History
Project, will help to explain why Mr. Robb was so successful in
8
Bar Bulletin - July 30, 2014 - Volume 53, No. 31
We celebrate and remember John D. Robb for the 63 years of
service to his clients and the legal profession, and for his diligent,
determined and tireless efforts on behalf of legal aid.
As part of the Senior Lawyers Division Oral History Project, Anita
Miller conducted an interview with Mr. Robb in 2006. Read excerpts
from the interview here, http://www.nmbar.org/Attorneys/lawpubs/
BB/bb2011/BB092111.pdf#page=10.
135
From: César Torres <[email protected]>
Date: July 23, 2014 at 4:14:52 PM PDT
To: "Washington State Alliance for Equal Justice Leadership Group" <[email protected]>
Subject: [atj-leadership] DOJ/DOL: L&I Workers Comp LEP policies and practices inconsistent with Civil
Rights Act
Reply-To: César Torres <[email protected]>
Dear Equal Justice Colleagues:
In a major victory for LEP communities and access to justice for Workers Compensation
claimants, DOJ/DOL have found that L&I policies, practices, and procedures are inconsistent
with Title VI of the Civil Rights Act of 1964, the Workforce Investment Act of 1998 and
implementing regulations and L&I grant obligations. DOJ/DOL issued a 33 page decision in
response to a complaint filed by NJP on behalf of 8 limited English proficient workers claiming
denial of language access by the Department of Labor and Industries - Insurance Services
Division.
The DOJ/DOL investigation found violations including, the failure (a) to take specific steps to
develop, assess, and monitor its Language Assistance Program; (b) to adequately identify the
language needs of claimants; (c) to assess the competency and quality of its interpretation
services; (d) to ensure that all claimants are provided vital documents and information in a
timely manner in a language they can understand, and (e) provide adequate notice of LEP
claimants of available language assistance services. Specifically, DOJ/DOL decided that L&I
needs to translate vital documents into languages other than Spanish, including Russian,
Korean, Chinese, Vietnamese, Laotian, Cambodian and “a few” of the other more frequently
encountered languages. The list of vital documents required to be translated is extensive.
This is a huge victory for all LEP workers in Washington and a major step to obtaining better
and more just access to this important worker benefit system, particularly after the Kustera
cases, in which the Washington Supreme Court rejected an array of language protections for
LEP claimants in the L&I hearing process. L&I has agreed to work toward developing an
adequate language access program with appropriate monitoring and negotiations are
underway.
Congratulations to NJP attorneys Kelly Owen, Senior Attorney-Bellingham, Leticia Camacho,
NJP-King County, and Patrick Pleas, NJP-Wenatchee, who filed and litigated the extensively
documented complaint three years ago, with assistance from Kristi Cruz, NJP-CLEAR.
César E. Torres
Executive Director
Northwest Justice Project
(206) 464-0162 x 233
136
What is Domestic Violence?
Domestic violence is a pattern of coercive behaviors used by a perpetrator (abuser) to maintain control
over an intimate partner. Coercive behaviors can include isolation, psychological abuse, sexual violence,
economic control, manipulation of children, stalking, threats, intimidation, and physical assaults.
Why “Domestic & Sexual” Violence?
Sexual violence is a commonly used, but underreported, tool of perpetrators. More than half (51.1%) of
female victims of rape reported being raped by a current or former intimate partner and 40.8% by an
acquaintance.
What is the ABA 20/20 Message?
20/20 Vision: CDSV & VAWA 1994-2014
Celebrating history, Planning for the future: What Every Lawyer Can Do
(Provide every member with something they can do to “mobilize the legal profession against domestic &
sexual violence”)
What is the ABA DSV Message?
Skilled legal assistance (or representation) is critical to successful intervention and accountability.
·
Legal services are second only to medical services as the most-requested need of victims. However,
of all women who reported needing legal services, 64% received NO assistance from an attorney.1
·
LSC-funded programs are the nation’s primary source of legal assistance for women who are
victims of domestic violence.2
·
“[T]he provision of legal services significantly lowers the incidence of domestic violence…Because legal
services help women with practical matters such as protective orders, custody, and child support they
appear to actually present women with real, long-term alternatives to their relationships.”3
·
In 86% of cases where a victim received a protection order, the abuse stopped or was greatly reduced.4
Who are the Victims?
Victims (and perpetrators) come from all walks of life: they are female and male; gay and straight;
immigrant and U.S.-born; young and old; all classes and races; located in small towns and large cities.
Data from the CDC:
· “On average, 24 people per minute are victims of rape, physical violence, or stalking by an intimate
partner in the US. Over the course of a year, that equals more than 12 million women and men.”5
·
“About 1 in 4 women and 1 in 7 men have experienced severe physical violence by an intimate
partner (e.g., hit with a fist or something hard, beaten, slammed against something) at some point
in their lifetime.”6
·
“Nearly 1 in 5 women and 1 in 71 men in the United States have been raped at some time in their
lives. More than half (51.1%) of female victims of rape reported being raped by a current or former
intimate partner and 40.8% by an acquaintance.”7
1
137
What Kinds of Cases?
-Civil Protection Order
-Divorce & Property Division
-Child Custody & Support
-Child Welfare
-Immigration
-Disability
-Income & Consumer Debt
-Employment
-Housing
-Education
-Health Care
-Privacy
-Tribal law
-Military law
-Torts/Insurance
-Criminal
What Can Lawyers Do?
ü Lawyers can receive training to screen more effectively for domestic & sexual violence in their
clients, and make appropriate referrals.
o Review the ABA Standards of Practice at:
http://www.americanbar.org/content/dam/aba/administrative/domestic_violence1/20110
419_aba_standards_of_practice_dv.pdf
o
Download the ABA Issue Spotting Tool at:
http://www.americanbar.org/content/dam/aba/administrative/domestic_violence1/20110
419_aba_cdv_issue_spotting.pdf
ü Lawyers who are trained and mentored can take cases representing victims.
o Find organizations with pro bono programs that provide training, supervision and mentoring
at http://www.probono.net/dv/, the ABA’s National Domestic Violence Pro Bono Directory.
o
Join the CDSV’S Subpoena Defense Project :
http://www.americanbar.org/groups/domestic_violence/subpoena_defense_project.html
ü Lawyers can serve as general counsel or on boards of local programs.
ü Lawyers can pledge much-needed financial support to local programs.
What Can the Commission on Domestic & Sexual Violence Do for You (members/lawyers)?
ü Conduct local training
ü Review and help draft training materials
ü Review and help draft local policy
ü Provide case law and statutory materials
ü Host community roundtables
ü Identify local or national experts
ü Help develop effective pro bono programs
ü Support litigators, professors, students, and policymakers with our six national discussion listserves
What Are the Important Intersecting Policy Issues?
-access to firearms (extensive ABA policy)
-immigration reform (extensive ABA policy)
-military justice systems (no ABA policy)
-access to justice issues (extensive ABA Policy)
2
138
-VAWA appropriations/funding of LSC
(extensive ABA Policy)
-campus justice systems (ABA policy to be
introduced February 2015)
1
National Center for Injury Prevention and Control, Centers for Disease Control and Prevention, Intimate Partner
Violence in the United States — 2010 (2014) at 56.
2
Legal Services Corporation, 2010 Annual Report, at 11.
3
Amy Farmer & Jill Tiefenthaler, Explaining the Recent Decline in Domestic Violence, Contemp. Econ. Pol., Vol. 21,
No. 2, April 2003.
4
James Ptacek, Battered Women in the Courtroom: The Power of Judicial Response (1999), (reviewed in Meda
Chesney-Lind, James Ptacek, Battered Women in the Courtroom: The Power of Judicial Response, 35 Crime, L. &
Soc. Change 363 (2001)).
5
National Center for Injury Prevention and Control, Centers for Disease Control and Prevention, Frequently Asked
Questions: Intimate Partner Violence in the United States — 2010 (2014).
6
Id.
7
Id.
3
139
20/20 Vision: CDSV & VAWA 1994-2014
Celebrating history, Planning for the future: What Every Lawyer Can Do
Fall 2014 marks the 20th Anniversary of the Commission on Domestic & Sexual Violence, and of
the Violence Against Women Act. We are using this year to reflect on our achievements, to
recognize our continuing challenges, and to set an agenda for the next 20 years that continues to
mobilize the legal profession to seek justice and safety for victims. (our mission statement)
Planned Initiatives
1. 20 AWARDS FOR 20 YEARS (every lawyer can honor/celebrate)
· For 20 lawyers who represent victims of domestic & sexual violence, highlighting
especially Legal Assistance to Victims (LAV) grantees under VAWA
· Signature reception at Annual 2015 High profile speakers: Expect to secure Joe
Biden and/or Patrick Leahy.
2. CLE Program Annual 2015 (every lawyer can learn more)
· Panel Program of Experts: Gather national multidisciplinary experts and leaders to
reflect on VAWA and its impact as well as necessary next steps in legislation, policy
and practice; include value of civil legal response.
3. Workplace Policy (every lawyer can download and implement)
· Circulate CDSV model policy and get adopted by HoD August 2014
· Create webpage where Members download workplace policy and include suggestions
for advocacy at workplace
4. Pro Bono (every lawyer can volunteer)
· Create a downloadable CLE ethics webinar to learn basic best practices for
representing survivors of domestic and sexual violence – based on ABA Standards of
Practice
· Every member will then be directed to go to the National Domestic Violence Pro Bono
Directory run by the Commission and volunteer with a local organization
· Every member can volunteer through the Enterprise funded CDSV Subpoena Defense
Pro Bono Project
140
1
From: "Horton-Newell, Amy" <[email protected]>
Sent: July 28, 2014 2:54 PM
To: "Horton-Newell, Amy" <[email protected]>
Subject: ABA War on Poverty Program: UPDATE
Dear Commission Members, Liaisons and Friends:
I am beyond thrilled to report that we had a full house at the Commission/IRR
War on Poverty program this afternoon at the ABA Office! 100 attendees filled
the room, and we had participants listening to the program by conference call.
ABA Media videotaped the program and will draft an article shortly. They will
provide us with the full video as well as highlight clips. A reporter from NPR
attended the program along with a journalist from NPPA. We will circulate an
evaluation by email to all attendees tomorrow afternoon along with a link to the
ABA Poverty website and survey.
A BIG THANK YOU to Martha Bergmark for handling the welcome and opening
introductions! And another BIG THANK YOU to Tom Susman of the ABA
Governmental Affairs Office for moderating the program. As you will quickly
notice when you view the video of the program, Tom put a tremendous amount
of time and energy into preparing for the program and facilitating an excellent
discussion of the many issues we aimed to tackle during the program. Several
attendees made a point of finding me afterwards to thank the ABA for holding the
program and ask how they can get involved. In addition to distributing onepagers on the Commission and IRR, we provided ABA membership materials
highlighting the reduced rates for public interest lawyers.
The dialogue was lively, thought-provoking and productive. The panelists enjoyed
participating in the program and commented to me that they are interested in
being involved with future ABA efforts aimed at promoting legislative advocacy
initiatives. I am hopeful that this program is merely the first of many such
programs. After the program, I chatted with the panelists about holding
programs that focus more tightly on one issue at a time and squarely address
action items for the ABA and the legal community. Sister Simone suggested
holding programs on increasing the minimum wage and promoting better housing
policies. A woman from NLADA suggested holding a program that covers the
intersection of race and poverty. Prof. Edelman commented that it would be
interesting to hold a program that focuses on the middle ground area where
141
conservatives and liberals can agree and starting a conversation from there.
Everyone agreed there are many ways for lawyers to tackle these issues, and the
consensus seems to be that folks are interested in collaborating with the ABA.
In short, it was a heckuva fun and productive day at the ABA, and I look forward
to sharing the video with you shortly!
PS – I attached a couple pictures from the program. ABA Media will provide us
with more formal photos later on so we can post them on our site and use them
in other materials. The ABA Division for Public Services tweeted during the
program at https://twitter.com/ABAPubServices. Enjoy!
Amy E. Horton-Newell
Director, Commission on Homelessness & Poverty
142
2014 Harrison Tweed Award
The Harrison Tweed Award, created in 1956, recognizes the extraordinary achievements of state
and local bar associations that develop or significantly expand projects or programs to increase
access to civil legal services for poor persons or criminal defense services for indigents. This
award, named for a leader in the promotion of free legal services to the poor, is co-sponsored by
the American Bar Association Standing Committee on Legal Aid and Indigent Defendants and
the National Legal Aid and Defender Association.
Colorado Bar Association
The Colorado Bar Association (CBA) is being honored for its Colorado Flood Legal Relief
Program. The program was designed to provide limited legal assistance to victims of the
devastating Colorado flooding that occurred in September 2013. Once President Obama issued
the declaration of natural disaster, the CBA launched a cooperative effort with local and
specialty bar associations, as well as legal aid providers to develop a plan responding to the
disaster. Remarkably, a website was up and running within 24 hours, providing information to
the public and a portal through which online applications for pro bono legal assistance could be
completed.
The CBA also developed a helpline and legal clinics for flood victims. It hired a full-time
managing attorney to oversee and match volunteers with those requesting assistance, a part-time
flood coordinator, and an expert on disaster relief to provide training to volunteers. The program
recruited 284 attorney volunteers who provided assistance through either the hotline or more
extensive services. The program helped many people in need after the devastating floods and
serves as a model for other states that may encounter disasters in the future.
San Juan County (New Mexico) Bar Association
Faced with more than a 20% funding cut to the only legal aid provider in the county, DNAPeople’s Legal Services (DNA), the San Juan County Bar Association (SJCBA) responded by
greatly increasing its pro bono efforts in the past year. This 100-member bar located in a remote
corner of New Mexico worked in partnership with DNA’s Volunteer Lawyer Program (VLP) to
bring together lawyers, judges, court personnel, pro bono committee members and support from
the community to coordinate and enhance a variety of free legal clinics. Nearly every member of
the SJCBA participates in these clinics annually, enabling clinics to be held close to twice a
month at either the courthouse, legal aid office or the local community college.
The SJCBA, in conjunction with its many partners, organized a county wide Legal Fair at which
its members served over 300 low-income people. Through the willingness of SJCBA members to
help fill the gap, the VLP has significantly increased free civil legal access through expanding
pro bono services to those in need. These many efforts by the SJCBA to increase pro bono
participation demonstrate that regardless of a bar’s size and location, committed bar leaders and
members can make a difference.
143
112A
AMERICAN BAR ASSOCIATION
COMMISSION ON DOMESTIC & SEXUAL VIOLENCE
SECTION OF INDIVIDUAL RIGHTS & RESPONSIBILITIES
REPORT TO THE HOUSE OF DELEGATES
RESOLUTION
1
2
3
4
5
6
7
8
9
RESOLVED, That the American Bar Association adopts the Model Workplace Policy on
Employer Responses to Domestic Violence, Sexual Violence, Dating Violence and Stalking
(“Model Policy”).
BE IT FURTHER RESOLVED, That the American Bar Association encourages all employers,
public and private, including governments, law schools and the legal profession, to enact formal
policies on the workplace responses to domestic violence, dating violence, sexual violence,
and/or stalking violence which address prevention and remedies, provide assistance to employees
who experience violence, and which hold accountable employees who perpetrate violence.
144
112A
MODEL WORKPLACE POLICY ON EMPLOYER RESPONSES TO
DOMESTIC VIOLENCE, SEXUAL VIOLENCE, DATING VIOLENCE AND STALKING
The model policy set forth below outlines guidelines for workplace responses to
victims/survivors of violence and perpetrators of violence. An employer can adopt a workplace
policy as part of its commitment to a healthy, safe organizational climate and to the prevention
and reduction of the incidence and effects of domestic violence, sexual violence, dating violence,
and stalking.
I. Statement of Purpose
[Employer] institutes this policy as part of our commitment to a healthy, safe work climate and
to the prevention and reduction of the incidence and effects of domestic violence, sexual
violence, dating violence, and stalking. [Employer] will not tolerate, and will seek to prevent and
remedy domestic violence, sexual violence, dating violence, and stalking, which affect our
workplace. All such conduct constitutes serious violations of this policy, and may cause
discipline up to and including termination. The company recognizes that domestic violence,
sexual violence dating violence, and stalking can impact the workplace even if the incidents
occur elsewhere. Our policy covers heterosexual and same sex conduct, regardless of how long a
relationship may exist or have existed between the parties.
The purposes of this policy are to:
· Prevent domestic violence, sexual violence, dating violence, and stalking affecting the
workplace;
· Remedy domestic violence, sexual violence, dating violence, and stalking, which occurs
in the workplace;
· Enhance workplace awareness and capacity to create a supportive and safe work
environment for employee victims of domestic violence, sexual violence, dating violence,
and stalking, and their fellow employees;
· Institutionalize responsive policies and procedures to assist employees who are impacted
by domestic violence, sexual violence, dating violence, and stalking, including the
provision of training on this policy to employees and management;
· Provide to employee victims immediate assistance, information and referrals to
community resources; and,
· Engage in appropriate disciplinary action against employees who perpetrate domestic
violence, sexual violence, dating violence, and stalking.
II. Definitions
1. Survivor or victim: an individual who is currently subject to, or has in the past been
subjected to, domestic or sexual violence, dating violence, or stalking.
2. Perpetrator: the individual who commits or threatens to commit an act of domestic
violence, sexual violence, dating violence, and stalking.
3. Domestic violence: a pattern of coercive behavior, including acts or threatened acts, that
is used by a perpetrator to gain power or control over a current or former spouse, family
member, intimate partner, or person with whom the perpetrator shares a child in common.
145
112A
It occurs in heterosexual and same sex relationships and impacts individuals from all
economic, educational, cultural, age, gender, racial, and religious demographics.
Domestic violence includes, but is not limited to, physical or sexual violence, emotional
and/or psychological intimidation, verbal abuse, stalking, technological abuse, economic
control, harassment, physical intimidation, or injury.
4. Sexual violence: a range of behaviors, including but not limited to, sexual harassment, a
completed nonconsensual sex act (i.e., rape), an attempted nonconsensual sex act, abusive
sexual contact (i.e., unwanted touching), and non-contact sexual abuse (e.g., threatened
sexual violence, exhibitionism, verbal harassment). Some or all of these acts are
addressed in [Employer]’s Sexual Harassment Policy. Sexual violence is any sexual act
or behavior that is perpetrated against someone's will when someone does not or cannot
consent. Victims of sexual violence may know the perpetrator(s), such as a coworker or a
supervisor, and/or may be involved in a dating or marital relationship with the
perpetrator, or the perpetrator may be unknown to the victim. A person of any age or
gender may be a victim of sexual violence. Consent is not given when, for example, a
perpetrator uses force, harassment, threat of force, threat of adverse personnel action,
coercion, or when the victim is asleep, incapacitated, or unconscious.
5. Dating violence: an act of violence threatened or committed by a person who is or has
been in a social relationship of a romantic or intimate nature with the victim. The
existence of a “romantic or intimate” relationship is determined based upon the victim’s
perspective, regardless of the length of the relationship, the type of relationship or the
frequency of interaction between the persons involved in the relationship.
6. Stalking: acts of harassing, unwanted or threatening conduct that cause the victim to fear
for his or her safety or the safety of a family member, or would cause a reasonable person
in a similar situation to fear for his or her safety. Stalking conduct includes, but is not
limited to: any unwanted following or spying on a person, unwanted appearing at a
person's home or work, unwanted appearing at a place where the perpetrator has no
reason to be, waiting at places in order to make unwanted contact with the victim or to
monitor the victim, leaving unwanted items, presents, or flowers for the victim, and
posting unwanted information or spreading rumors about the victim on the internet, in a
public place, or by word of mouth. Stalking may occur through use of technology
including, but not limited to, e-mail, voice-mail, text messaging, and use of GPS and
social networking sites.
7. Protection Order or Restraining Order: protection orders, sometimes called
restraining orders or stay away orders, are a mechanism by which a victim can petition
the court for protection from a perpetrator, as well as establish custody and visitation
guidelines and provide for other forms of economic security, like rent or mortgage
payments, which last for the duration of the order. Protection orders may also issue in
criminal cases as a condition of probation or condition of release, particularly in a
domestic violence, sexual violence, dating violence, or stalking related crime.
146
112A
8. Workplace-Related Incidents: workplace-related incidents of domestic violence, sexual
violence, dating violence, and stalking include acts, attempted acts, or threatened acts by
or against employees, and/or against employees’ families or property, that occur in the
workplace or that occur outside the workplace but have an impact on the workplace. An
employee is considered to be in the workplace while in, or utilizing the resources or
performing work on behalf of the employer. A workplace includes but is not limited to
employer facilities, work sites, equipment, or vehicles, the location of a client or
customer, or while an employee is on work-related travel.
9. Workplace Safety Plan: a strategy developed in collaboration with a victim to
implement workplace safety options, including but not limited to handling of court
protection orders, procedures for alerting security personnel, temporary or permanent
adjustments to work schedules and locations, changes in parking spots, and requests for
escorts to and from workplace facilities.
III. Persons Covered by this Policy
The protections of this policy cover full and part time employees, interns, contractors,
volunteers, or temporary workers engaged by [Employer] in any workplace location. The
obligations of this policy are imposed upon full and part time employees, interns, contractors,
volunteers, temporary workers, vendors, clients and customers engaged by [Employer] in any
workplace location.
IV. Statement of Confidentiality
[Employer] recognizes and respects an employee’s right to privacy and the need for reasonable
confidentiality. [Employer] shall maintain a reasonable level of confidentiality of an employee’s
disclosure regarding domestic violence, sexual violence, dating violence, and stalking, to the
extent permitted by law, unless to do so would result in physical harm to any person and/or
jeopardize safety within the workplace. When information must be disclosed for the above
reasons (or be inconsistent with an employer’s obligation to investigate, remedy and prevent
domestic violence, sexual violence, dating violence, and stalking). [Employer] shall limit
disclosure to information reasonably necessary to accomplish those purposes and to comply with
the law. [Employer] shall attempt to provide advance notice to the victim if the disclosure must
be shared with other parties.
V. Reporting and Referrals
Employees who are victims of domestic violence, sexual violence, dating violence, and stalking
and employees who have witnessed acts or threatened acts of domestic violence, sexual violence,
dating violence, and stalking in the workplace are encouraged to provide a report to [Employer].
[Employer] has designated __________ in the _________ office at _______as the person to
whom such reports should be made. [Employer]’s designated employee shall provide community
referrals and resources to employees in order to assist employees with their concerns or
experiences regarding violence.
An employee should also contact ________ at _________ if he or she wishes to report a
violation of this policy. [Employer] will not subject employees who report violence or report a
147
112A
violation of this policy to work-related or personal retaliation. Such reports will be promptly
investigated by employer, and appropriate remedial action taken.
VI. Training
Supervisors will receive regular training on preventing, recognizing, and responding to domestic
violence, sexual violence, dating violence, and stalking, which will include training on making
appropriate referrals to experts on these issues.
VII. Employer Responses to Reports of Violence
A. Responses to Victims
1.
Leave and Other Workplace Assistance
Leave will be provided to employees who are victims of domestic violence, sexual
violence, dating violence, and stalking who need time off to secure medical assistance,
legal assistance, counseling, or to attend to other matters related to the violence, such as
court proceedings, meeting with an attorney, complying with a subpoena, permanent or
temporary relocation, services from a domestic violence or rape crisis agency, or
participating in safety planning and taking other actions to increase safety from future
domestic violence, sexual violence, dating violence, and stalking for them or for a family
member. [Employer] will make every reasonable effort to provide paid or unpaid leave
when the employee is experiencing or has experienced domestic violence, sexual
violence, dating violence, and stalking in the workplace, or has experienced domestic
violence, sexual violence, dating violence, and stalking outside the workplace, or is
assisting a family member who has experienced domestic violence, sexual violence,
dating violence, and stalking, unless it causes undue hardship to the employer.
[Employer] will work in collaboration with the employee to provide reasonable and
flexible leave options under this policy. All employees may substitute accrued, unused
vacation for any unpaid portion of leave. When the need for time off is foreseeable, an
employee must provide reasonable advance notice to the employer. To request Leave,
employee should contact _________________. [Employer] will also work with employee
to determine if other non-leave-related assistance will facilitate employee’s ability to
remain safe and perform his or her essential job functions, such as, but not limited to,
modifying work schedules, changing employee’s location within the workplace or
location of a parking spot, changing phone numbers, arranging telecommuting options,
etc., unless it causes undue hardship.
2.
Nondiscrimination and Non-Retaliation
[Employer] shall not discriminate, retaliate or take adverse employment actions against
any employee for submitting or participating in the investigation of a complaint pursuant
to this policy.
3.
Access to Unemployment Insurance Benefits
[Employer] recognizes that in certain situations it is not feasible for an employee who is a
victim of domestic violence, sexual violence, dating violence, and stalking to continue
working for [Employer]. In such circumstances, [Employer] shall provide to employee
148
112A
information regarding access to unemployment insurance benefits and shall not contest
entitlement to benefits. [Employer] has designated _______ at ________ to provide
accurate information regarding unemployment benefits for victims of violence.
4.
Work Performance
[Employer] recognizes that employees who are victims of domestic violence, sexual
violence, dating violence, and stalking may experience temporary difficulty fulfilling job
responsibilities. If [Employer] becomes aware that an employee’s work performance or
conduct has been impacted by domestic violence, sexual violence, dating violence, or
stalking, [Employer] will engage in an interactive dialogue with the employee to address
the issue, in accordance with established policies within the workplace including the
provision of a reasonable accommodation unless it causes undue hardship to the
employer. [Employer] may develop a work plan with employee, provide leave and other
accommodations, provide referrals to support or advocacy agencies, advise employee of
his or her rights regarding unemployment insurance, and maintain a separate and
confidential record of employee’s status as a victim of domestic violence, sexual
violence, dating violence, or stalking to ensure to victim that his or her rights and
privileges of employment are not impacted or compromised as a result of the violence.
With or without these accommodations, an employer may require that the essential
functions of the job be fulfilled.
5.
Protection and Restraining Orders
[Employer] recognizes that a victim of violence may seek an order of protection, or may
receive a restraining order, as part of his or her efforts to become safe and as part of his or
her workplace safety plan. [Employer] recognizes that the workplace may or may not be
included on an order as a location from which a perpetrator must remain away. If an
employee chooses to disclose the existence of a protection or restraining order to
[Employer], [Employer] may assist the employee to enforce his or her order, shall archive
said order in a confidential and separate file from employee’s personnel file, and, if
applicable, may assist employee to gather documentation from the workplace, such as
emails or voice messages, necessary to support the employee’s legal proceedings or
otherwise to obtain or maintain safety.
B. Responses to Employees Concerned About Violence
Employees who suspect or witness acts of domestic violence, sexual violence, dating violence,
and stalking in the workplace, or who suspect or witness domestic violence, sexual violence,
dating violence, and stalking against an employee or perpetrated by an employee, are encouraged
to report their concerns to the authorized person within [Employer]. [Employer] shall not
retaliate against any employee for reporting concerns about workplace related incidents of
domestic violence, sexual violence, dating violence, and stalking pursuant to this policy. Any
employee who believes he or she has been subjected to adverse action as a result of making a
report pursuant to this policy should contact _______ at _______ within [Employer]. Any
allegations of violations of this policy will be promptly investigated.
149
112A
C. Consequences to Employees Who Commit Violence
If it is determined that an employee has committed a workplace-related incident of domestic
violence, sexual violence, dating violence, and stalking, or if a supervisor becomes aware that an
employee may have committed such incident, the supervisor shall conduct or refer the employee
to the designated individual as specified in Section V above to conduct appropriate
investigations, interventions, and referrals. [Employer] shall promptly investigate and take
disciplinary action, up to and including termination, against any employee who threatens to
commit or who commits workplace-related incidents of domestic violence, sexual assault, dating
violence, or stalking. Employees are prohibited from utilizing any workplace resources, such as
work time, phones, email, computers, internet connections, fax machines or other means to
threaten, harass, intimidate, embarrass or otherwise harm another person. An employee who is
subject to a protection or restraining order, or a named defendant in a criminal action as a result
of a threat or act of domestic violence, sexual violence, dating violence, or stalking, must
disclose the existence of such criminal or civil action if the conditions of such actions interfere
with the employee’s ability to perform his or her job, impact another employee at [Employer], or
specifically relate or name [Employer]. Failure to disclose the existence of such criminal or civil
actions in these circumstances will result in disciplinary action, up to and including termination
from employment.
150
112A
REPORT
INTRODUCTION: HIGH RATES OF PREVALENCE OF VIOLENCE
Domestic violence, dating violence, sexual assault and stalking (DSV)1 are epidemics in our
society with dramatic, negative effects on individuals, families and communities. These crimes
know no economic, racial, ethnic, religious, age, sexual orientation or gender limits.
By conservative estimates, 2,800,000 people are victimized by intimate partners annually.2 A
1
The ABA Commission on Domestic Violence defined these terms in its Standards of Practice
For Lawyers Representing Victims of Domestic Violence, Sexual Assault and Stalking in Civil Protection Order
Cases (adopted as ABA Policy, August 2007) as follows:
“Domestic Violence”: Physical abuse, alone or in combination with sexual, economic or emotional abuse,
stalking, or other forms of coercive control, by an intimate partner or household member, often for the purpose
of establishing and maintaining power and control over the victim.
“Sexual Assault”: Any type of non-consensual touching or sexual penetration, however slight. Sexual assault
may be perpetrated by an intimate partner (including a spouse), a non-intimate person known to the victim, or a
stranger.
“Stalking”: A course of conduct directed at a specific person that would cause a reasonable person to
experience fear.
“Dating Violence”: Physical abuse, alone or in combination with sexual, economic or emotional abuse,
stalking, or other forms of coercive control, by a person who is or has been in a romantic or intimate
relationship with the victim, often for the purpose of establishing and maintaining power and control over the
victim.
See also 42 U.S.C. 13925 §§ (8), (9), (10), (29), (30). ((8)Domestic violence.— The term “domestic violence”
includes felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of
the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has
cohabitated with the victim as a spouse or intimate partner, by a person similarly situated to a spouse of the victim
under the domestic or family violence laws of the jurisdiction receiving grant monies, or by any other person against
an adult or youth victim who is protected from that persons acts under the domestic or family violence laws of the
jurisdiction;
(9) Dating partner.— The term “dating partner” refers to a person who is or has been in a social relationship of a
romantic or intimate nature with the abuser, and where the existence of such a relationship shall be determined based
on a consideration of—
(A) the length of the relationship;
(B) the type of relationship; and
(C) the frequency of interaction between the persons involved in the relationship;
(10) Dating violence.— The term “dating violence” means violence committed by a person—
(A) who is or has been in a social relationship of a romantic or intimate nature with the victim; and
(B) where the existence of such a relationship shall be determined based on a consideration of the following factors:
(i) The length of the relationship.
(ii) The type of relationship.
(iii) The frequency of interaction between the persons involved in the relationship;
(29) Sexual assault.— The term “sexual assault” means any non-consensual sexual act proscribed by Federal, tribal
or State law, including when the victim lacks capacity to consent;
(30) Stalking.— The term “stalking” means engaging in a course of conduct directed at a specific person that would
cause a reasonable person to—
(A) fear for his or her safety or the safety of others; or
(B) suffer substantial emotional distress.).
2
Patricia Tjaden & Nancy Theonnes, U.S. Department of Justice, Full Report of the Prevalence, Incidence, and
Consequences of Violence Against Women 26 (2000).
151
112A
recent study which looked to current and lifetime victimization rates determined that “29% of
male workers and 40% of female workers reported having been subjected to intimate partner
violence at some point in their lives.”3 The researchers determined that victimization rates in the
workplace were higher than those in the general populace because DSV victims are
“overrepresented in the workplace.”4
Sexual assault and rape also are endemic throughout the United States. Nearly 1 in 5 women
aged 18 and older report having been raped in their lifetime (18.3%), with almost half of all
women having experienced some other form of sexual violence in their lifetime (44.6%).5 Nearly
a quarter (22.2%) of men aged 18 and older report experiencing some form of sexual violence
over the course of their lifetime.6 More than half (51.1%) of female rape victims report being
raped by an intimate partner and 40.8% by an acquaintance; for male victims, over half (52.4%)
reported being raped by an acquaintance and 15.1% by a stranger.7 Although the majority of
sexual assault victims are assaulted by perpetrators who are known to them, many perpetrators
are not intimate partners.8
Similarly, high rates of stalking experienced by women and men in the United States remains an
issue of public health concern. The Centers for Disease Control and Prevention (CDC) report
that 1 in 6 women and 1 in 19 men in the U.S. have experienced some type of stalking behavior
over their lifetime, causing them to fear for their safety or the safety of someone close to them.9
Additionally, lesbian, gay, bisexual and transgender (LGBT) people experience domestic and
intimate partner violence and sexual violence at rates similar to or higher than heterosexual
and/or cisgender10 people.11
3
See Lisalyn R. Jacobs & Maya Raghu, 2010, The Need for a Uniform Federal Response to the Workplace Impact
of Interpersonal Violence 598 (Reeves, Carol A. & O’Leary-Kelly, Anne M., U.S. Dep’t of Justice, A Study of
Effects of Intimate Partner Violence in the Workplace, 16 (2009).
4
Id. At 45 (Survivors require economic autonomy and stability to leave or stay safe following abuse or an assault).
5
Black, M., Basile, K., Breiding, M., Smith, S., Walters, M., Merrick, M., Chen, J., & Stevens, M. The National
Intimate Partner and Sexual Violence Survey (NISVS): 2010 Summary Report. National Center for Injury Prevention
and Control, Centers for Disease Control and Prevention (2011), available at:
http://www.cdc.gov/violenceprevention/pdf/nisvs_report2010-a.pdf, accessed on February 28, 2013.
6
Id.
7
Workplaces Respond, The Facts on the Workplace and Sexual Violence, http://workplacesrespond.org/learn/thefacts/the-costs-of-sexual-violence (citing Centers For Disease Control, National Intimate Partner and Sexual
Violence Survey: 2010 Summary Report (Dec. 2011). Available
at http://www.cdc.gov/ViolencePrevention/pdf/NISVS_Report2010-a.pdf).
8
This may include, inter alia, supervisors, coworkers, and classroom peers.
9
Id.
10
People who identify with the gender/sex assigned to them at birth: people who are not transgender. See FORGE,
Transgender 101, http://forge-forward.org/wp-content/docs/T101_short_rev20101.pdf (last visited March 24, 2014).
11
Walters, M.L., Chen, J., and Breiding, M.J., The National Intimate Partner and Sexual Violence Survey (NISVS):
2010 Findings on Victimization by Sexual Orientation, National Center for Injury Prevention and Control, Centers
for Disease Control and Prevention, Atlanta, Georgia, January 2013.
152
112A
These dramatic statistics are likely higher in reality, as all of these crimes are underreported.12
EMPLOYERS NEED TO PROACTIVELY ADDRESS DSV
Domestic, dating, sexual and stalking violence are workplace issues that do not stay at home
when victims and perpetrators go to work. DSV can compromise the safety of employees and
directly interfere with the work of an organization, by decreasing morale and productivity,13 as
well as by increasing absenteeism and health costs. The CDC estimated that the cost of intimate
partner rape, physical assault and stalking totaled $5.8 billion each year for direct medical and
mental health care services and lost productivity from paid work and household chores.14 Of this,
total productivity losses accounted for nearly $1.8 billion in the United States in 1995. When
updated to 2003 dollars, the cost of intimate partner rape, physical assault and stalking is more
than $8.3 billion.15
Proactively addressing DSV is a good practice for employers. “94% of corporate security and
safety directors at companies nationwide ranked domestic violence as a high security concern.”16
In addition, 55% of senior executives believe domestic violence hurts their businesses
productivity,17 61% indicated that their insurance and health care costs increased due to domestic
violence,18 70% found their worker attendance affected by domestic violence,19 and 55% found
domestic violence to be a cause of employee turnover.20
In addition, employers have legal obligations to address DSV, which implicate a broad range of
existing federal and state labor and employment laws. For example, perpetrators of sexual assault
may be supervisors, managers, co-workers, customers or clients. As a result, an employer’s legal
obligations to respond to and remedy sexual harassment claims pursuant to Title VII of the Civil
Rights Act of 1964 may be triggered by acts of DSV.21 Furthermore, an employer may also need
to meet its Americans with Disabilities Act obligations to accommodate victims with disabilities
as a result of the violence.22
12
See Patricia Tjaden & Nancy Theonnes, 2000, National Violence Against Women Survey, U.S. Department of
Justice < http://www.ncjrs.gov/txtfiles1/nij/183781.txt> (last visited February 21, 2014) (For example, around 83
percent of all rapes committed by an intimate partner are not reported to law enforcement).
13
U.S. Merit Systems Protection Board, Employee Perceptions of Federal Workplace Violence, 3, September 2012.
14
Costs of Intimate Partner Violence Against Women in the United States, Centers for Disease Control and
Prevention, National Center for Injury Prevention and Control. 2003.
15
Max, W, Rice, DP, Finkelstein, E, Bardwell, R, Leadbetter, S. 2004. The Economic Toll of Intimate Partner
Violence Against Women in the United States. Violence and Victims, 19(3) 259-272.
16
National Safe Workplace Institute survey, as cited in "Talking Frankly About Domestic Violence," Personnel
Journal, April, 1995, page 64. NOTE: The National Safe Workplace Institute is now called the National Institute for
School and Workplace Safety.
17
Safe Horizon, the Corporate Alliance to End Partner Violence, and Fifth & Pacific Companies, Inc. (formerly Liz
Claiborne Inc.), Workplace and Domestic Violence Survey, 2007.
18
Id.
19
Id.
20
Id.
21
U.S. Equal Employment Opportunity Commission, Questions and Answers: The Application of Title VII and the
ADA to Applicants or Employees Who Experience Domestic or Dating Violence, Sexual Assault, or Stalking,
http://www.eeoc.gov/eeoc/publications/qa_domestic_violence.cfm#_edn8 (last visited March 22, 2014).
22
Id.
153
112A
Looking at DSV from a business perspective, employers have financial, in addition to ethical and
legal, incentives to proactively address the needs of employee-victims and employeeperpetrators.
THE WORKPLACE CONSEQUENCES OF DSV FOR EMPLOYEES EXPERIENCING VIOLENCE
Domestic violence intersects with employment in myriad ways. A 2006 national survey found
that 21% of full-time employed adult respondents (women and men) identified themselves as
victims of intimate partner violence.23 The same study reported that: 64% of domestic violence
victims found that their ability to work was impacted by abuse; 40% experienced “harassment by
an intimate partner at work (either by phone or in person),” and 34% reported that “fear of
intimate partner’s unexpected visits” caused reduced productivity.24 Batterers undermine their
victims’ work by preventing them from getting to work on time or at all, disabling their car,
hiding or taking their car keys, slashing their tires, taking or hiding their cash, or sabotaging
childcare.25 Another study found that 56% of battered women arrived at work one hour late five
times per month because of the abuse.26 A different survey found that 74% of working female
domestic violence victims were harassed at work by their partner.27 Female victims of rape or
sexual assault report diminished work functioning for up to eight months following the attack.28
According to a 2006 study from the U.S. Bureau of Labor Statistics, nearly one in four large
private industry establishments (with more than 1,000 employees) reported at least one onsite
incidence of domestic violence, including threats and assaults, in the past year,29 and the U.S.
Department of Justice estimates that eight percent of rapes occur while the victim is working.30
Also very troubling is the fact that nearly 33% of women killed in U.S. workplaces between
2003 and 2008 were killed by a current or former intimate partner.31
23
Corporate Alliance to End Partner Violence, Facts and Statistics: Workplace Statistics,
<http://www.caepv.org/getinfo/facts_stats.php?factsec=3> (last visited May 23, 2014).
24
Id. According to one study, 74% of victims are harassed at work by their abuser. Id. at 12 (citing Victim Services
of New York, Report on Costs of Domestic Violence, (1987)).
25
Weiser, Wendy R. & Widiss, Deborah A, supra n. 15, at n. 3. (See McFarlane, J., Malecha, A. Gist, J, Schulz, P.
et al., Indicators Of Intimate Partner Violence In Women’s Employment: Implications For Workplace Action,
AAOHN Journal (2000) 48(5), 215 (44% of domestic violence victims surveyed were left without transportation to
get to work when their abuser disabled their car or hid their car keys).
26
Corporate Alliance to End Partner Violence, Facts and Statistics: Workplace Statistics, supra n. 13.
27
Bureau of Labor Statistics, U.S. Dept. of Labor, Census of Fatal Occupational Injuries: Table A-7 Fatal
occupational injuries by worker characteristics and event or exposure (2008).
28
Id. (citing Resick, P.A., Calhoun, K.S., Atkeson, B.M. & Ellis, E.M., Social Adjustment In Victims Of Sexual
Assault, Journal of Consulting and Clinical Psych., 49 (1981), 705-712 , as cited in Koss, M.P., The Rape Victim,
Thousand Oaks, CA, Sage Publications, p. 62 (1991).
29
U.S. Department of Labor, Bureau of Labor Statistics. 2006. Survey of Workplace Violence Prevention, 2005.
Washington, DC. Available at: http://www.bls.gov/iif/oshwc/osnr0026.pdf
30
Duhart, D. (2001). Violence in the Workplace, 1993-99. Bureau of Justice Statistics. Available at
http://bjs.ojp.usdoj.gov/content/pub/pdf/vw99.pdf.
31
Tiesman H, Gurka K, Konda S, Coben J, Amandus HE. (2012). Workplace Homicides Among U.S. Women: The
Role of Intimate Partner Violence. Ann Epidemiol; 22:277–284. Available at:
http://www.annalsofepidemiology.org/article/S1047-2797(12)00024-5/abstract.
154
112A
According to the CDC, domestic violence victims lose a total of nearly 8 million days of paid
work, the equivalent of more the 32,000 full-time jobs, and nearly 5.6 million days of household
productivity as a result of abuse.32 In 2000, 36% of rape/sexual assault victims lost more than 10
days of work after their victimization.33 Two recent studies of partner stalking of survivors found
that between 15.2 and 27.6% of women reported that they lost a job due, at least in part, to
domestic violence.34 Similarly, almost 50% of sexual assault survivors lose their jobs or are
forced to quit in the aftermath of the assaults.35 A recent U.S. DOJ study reveals that more than
half of the stalking survivors surveyed lost five or more days from work, and 130,000 survivors
reported being fired from or asked to leave their jobs because of stalking.36 A U.S. General
Accounting Office study found that close to 50% of sexual assault victims lost their jobs or were
forced to quit following their assault.37
THE WORKPLACE CONSEQUENCES OF EMPLOYEES WHO ARE DSV PERPETRATORS
One over-looked element of DSV and the workplace is that employees may be perpetrators of
violence. People who perpetrate abuse often use workplace time, resources and property
(company telephone and computer, company car, etc.) to do so. One study found that 78% of
abusers reported using employer resources in connection with an abusive relationship.38 In
addition, “48% of abusers reported having difficulty concentrating at work and 42% reported
being late to work.”39 Perpetrators of violence may also present with absenteeism and may cause
accidents or endanger their colleagues. A 2012 study of domestic violence perpetrators in
Vermont found that 80% of the perpetrators said their own job performance was negatively
affected by their perpetration of domestic violence.40 Of the perpetrators surveyed, 19% caused
32
Corporate Alliance to End Partner Violence, Facts and Statistics: Workplace Statistics, supra n. 12 (citing U.S.
Centers for Disease Control, Costs of Intimate Partner Violence Against Women in the United States (Apr. 28,
2003)).
33
Id.
34
Logan, TK, et. al, Partner Stalking and Implications for Women’s Employment, 22 J. Interpersonal Violence 268
(2007).
35
U.S. Gen. Acct. Office, Domestic Violence Prevalence and Implications for Employment Among Welfare
Recipients, 19 (Nov. 1998); S. Rep. No. 138, 103rd Cong., 2d Sess. 54 n 69 (citing E. Ellis, B. Atkeson & K.
Calhoun, An Assessment of the Long Term Reaction to Rape, 50 J. Abnormal Psychol., 264 (1981)).
36
Baum, K., et. al., Bureau of Justice Statistics, U.S. Dep’t of Justice, Stalking Victimization in the United States, 1
(2009), http://bjs.ojp.usdoj.gov/content/pub/pdf/svus.pdf. (Please note that 130,000 is not the number of stalking
victims nationwide who were terminated but is the number of respondents to the survey).
37
Weiser, Wendy R. & Widiss, Deborah A., Employment Protection for Domestic Violence Victims, Clearinghouse
Review Journal of Poverty Law and Policy (May-June 2004) at p. 4, n. 4 (citing U.S. General Accounting Office,
Domestic Violence Prevalence and Implications for Employment Among Welfare Recipients, at 19 (1998)).
38
See Lisalyn R. Jacobs & Maya Raghu, 2010, The Need for a Uniform Federal Response to the Workplace Impact
of Interpersonal Violence 598 (citing Ellen Ridley, Impact of Domestic Violence Offenders on Occupational Safety
and Health: A Pilot Study, 13-14, Maine Dep’t of Labor & Family Crisis Services, available at
http://www.cobar.org/Docs/MaineDVStudy-FullReport2004.pdf?ID=21106 (last visited March 26, 2014).
39
Id. at 598.
40
Michele Cranwell Schmidt & Autumn Barnett, Vermont Council on Domestic Violence, Center for Rural Studies
at the University of Vermont, & Violence Intervention and Prevention Programs at Spectrum Youth & Family
Services, Effects of Domestic Violence on the Workplace: A Vermont survey of male offenders enrolled in batterer
intervention programs, January 2012, pg. 5.
155
112A
or almost caused an accident at work.41 In many cases supervisors were aware of the
perpetrator’s behavior but failed to confront/admonish the employee about it.42
ESTABLISHING A FORMAL WORKPLACE POLICY IS A GOOD BUSINESS PRACTICE
DSV, whether it occurs at work or away from it, has workplace consequences that affect not only
employees who are victims, but also co-workers, managers, employees who perpetrate violence
and customers or clients. Yet over 70% of workplaces in the U.S. have no formal workplace
violence program or policy,43 and only 4% of employers actually train their workforce on
domestic violence.44 Although many organizations may have “workplace violence” policies or
protocols in place that they assume are adequate for addressing DSV, domestic, dating, sexual
and stalking violence have unique features that require dedicated employer attention.
Additionally, employees who are victims may not recognize that their employer has policies and
protocols in place that address their workplace needs.45 A workplace policy that addresses DSV
and its workplace impacts provides a guide for employers, supervisors and employees not only to
respond in DSV in supportive, safe and effective ways, but also to engage in prevention as well.
U.S. DEPARTMENT OF JUSTICE POLICY STATEMENT, FEDERAL WORKPLACE RESPONSES TO
DOMESTIC VIOLENCE, SEXUAL ASSAULT, AND STALKING
On April 18, 2012, U.S. President Barack Obama issued a Presidential Memorandum
“Establishing Policies for Addressing Domestic Violence in the Federal Workforce.”46 The
memorandum requires federal agencies to take the following steps to address the workplace
impacts of violence: (1) Develop and issue a guidance to federal agencies related to domestic
violence and its effects on the Federal workforce;47 (2) Establish a technical assistance process
for federal agencies related to these issues;48 (3) Determine if further guidance was necessary as
related to sexual assault and stalking;49 and, inter alia, (4) Require each federal agency to
develop or modify policies for addressing the effects of domestic violence on the workforce.50
41
Id.
Id. (83% of supervisors were aware of why respondents took time off of work due to their domestic violence
offense; however, only 32% of supervisors gave any response to the employee about his domestic violence incident,
his behavior, or his relationship in general).
43
See Lisalyn R. Jacobs & Maya Raghu, 2010, The Need for a Uniform Federal Response to the Workplace Impact
of Interpersonal Violence 599 (citing Security and Financial Empowerment Act, § 2.11).
44
Id. According to a Society for Human Resource Management survey that was commissioned by Futures Without
Violence, 53% of organizations indicated that they did not provide training on domestic violence, sexual violence
and stalking because they were “covered in sexual harassment training or other training.” Society for Human
Resource Management, The Workplace Impact of Domestic and Sexual Violence and Stalking, January 29, 2013.
45
See Workplace and Domestic Violence Survey, Supra N.17 (72% of executives say their companies offer
programs and services that address domestic violence but less than half of employees (47%) are even aware of this
fact).
46
Obama, B., Memorandum for the Heads of Executive Departments and Agencies Subject: Establishing Policies
for Addressing Domestic Violence in the Federal Workforce, April 12, 2012 (http://www.whitehouse.gov/the-pressoffice/2012/04/18/presidential-memorandum-establishing-policies-addressing-domestic-violen).
47
Id.
48
Id.
49
Id.
50
Id.
42
156
112A
The Office of Personnel Management subsequently issued a guidance for federal agencies to
develop policies addressing these issues.51
In November 2013, the U.S. Department of Justice (DOJ) was the first major federal agency to
release a final policy in accordance with this Presidential Memorandum.52 DOJ has over 150,000
employees, and thus the policy will impact thousands of employees and federal contractors. The
DOJ policy is an example of a well-structured workplace DSV policy. The DOJ policy includes a
comprehensive definitions section, which broadly defines “domestic violence” to include
“emotional and/or psychological intimidation, verbal abuse, stalking, economic control,
harassment, threats,”53 as well as “actual or threatened physical violence.”54 Importantly, the
policy addresses not only domestic violence, but also focuses on sexual assault,55 including
sexual harassment,56 and stalking.57
The DOJ policy also establishes a wide jurisdictional scope, defining the “workplace” to include
“not only federal offices or facilities, or use of federal resources, but anywhere that a DOJ
employee is conducting DOJ business.”58 This recognizes how DSV may intersect with
telecommuting, work-related travel, a contractor’s functions, and how DSV that takes place
outside of a workplace affects an employee’s employment.59
Also, the DOJ policy is employee-victim centered, meaning that it purports to support employees
who are DSV victims, and specifically does so by supporting the “victim’s autonomy,
assessment of danger, confidentiality, and right to privacy, to the extent possible.”60 One
example of this is that supervisors are to take into account an employee’s experience of DSV
when engaging in performance appraisals and reviews.61
Finally, the DOJ policy takes a strong stance on perpetrator accountability, by clearly
enumerating disciplinary actions and potential legal implications for employees who perpetrate
DSV within and outside of the workplace (where a causal connection to employment
performance is present), up to and including termination from employment.62
51
United States Office of Personnel Management, Guidance for Agency-Specific Domestic Violence,
Sexual Assault, and Stalking Policies, (February 2013) http://www.opm.gov/policy-dataoversight/worklife/reference-materials/guidance-for-agency-specific-dvsas-policies.pdf (last visited March 25,
2014).
52
Department of Justice Policy Statement, Federal Workplace Responses to Domestic Violence, Sexual Assault, and
Stalking, 1200.02 (Nov.19, 2013) (“Policy Statement”), available at
http://www.ovw.usdoj.gov/docs/federalworkplacee-responses-to-domesticviolence-sexualassault-stalking.pdf.
53
Id.
54
Id. at 5.
55
Id. at 6.
56
Id.
57
Id. at 7.
58
Maya Raghu, Department of Justice Issues Workplace Domestic & Sexual Violence Policy, The Workplace
Violence Prevention eReport, Volume 6, January/February 2014, pg. 2 (citing Policy Statement, Supra n.50 at 5).
59
Id.
60
Id.
61
Policy Statement, Supra n.50 at 9-10, 17.
62
Id. at 19.
157
112A
ESSENTIAL COMPONENTS OF A WORKPLACE DSV POLICY
A strong workplace DSV policy must be tailored to the size, industry and culture of each
workplace. Even so, there are several essential components of a policy for the policy to safely
and effectively address both the needs of employers and those of employees. These elements
include:
·
·
·
·
·
·
Definitions
Anti-Discrimination and Retaliation language
Description of Persons Covered by the Policy
Confidentiality Provisions of the Policy
Outlining of Employer Responses to DSV to employees, contractors and/or students who
are victims or perpetrators
Reporting & Referrals
ABA SUPPORT
The ABA has a long history of supporting legislation (1) addressing domestic, dating, sexual and
stalking violence;63 (2) addressing the workplace consequences of domestic, dating, sexual and
stalking violence;64 (3) addressing workplace violence;65 (4) addressing gender bias in the legal
profession;66 and (5) addressing discrimination against Lesbian, Gay, Bisexual and/or
Transgender persons.67 This resolution is a natural extension of these preexisting policies and
provides a concrete model policy that promotes enacted ABA policy.
CONCLUSION
Rates of domestic violence, dating violence, sexual violence, and/or stalking violence are
epidemic and have profound effects on people’s lives and workplaces. The vast majority of
63
See ABA, Recommendation, Report No. 115 (Feb. 2010) (urging Congress to re-authorize and fully fund
VAWA); ABA Commission on Domestic Violence and Commission on Immigration, Recommendation, Report No.
109 (Aug. 2008) (urging federal, state, and tribal governments to strengthen protection and assistance for victims of
gender-based violence); ABA Section of Criminal Justice, Recommendation, Volume 103 (Feb. 1978) (supporting
efforts to combat family violence).
64
See generally ABA, Recommendation, Report No. 121.2.2 (Aug. 1996) (condemning lawyers or judges who
engage in professional behavior which would constitute or condone domestic violence, urging judges and lawyers to
institute workplace protocols to address domestic violence, and encouraging continuing education).
65
See generally ABA, Recommendations Report No. 123.2 (August. 1998) (urging employers to address workplace
violence by adopting policies and practices to help them better prevent and manage on-site violence and threats).
66
See generally, ABA, Recommendation, Report No. 121 (Jun. 1998) (recommendation the ABA recognize the
persistence of barriers to women's advancement in the profession; affirm the principle that there is no place in the
profession for such barriers; and call upon members of the profession to eliminate these barriers by refusing to
participate in, acquiesce in or condone barriers to women's full integration and participation in the profession);
Recommendation, Report No. 117.1.2 (Feb. 1992) (condemning sexual harassment).
67
See generally, Recommendation, Report No. 8 (Feb. 1989) (urges the Federal government, the states and local
governments to enact legislation prohibiting discrimination on the basis of sexual orientation in employment,
housing and public accommodations); Recommendation, Report. No. 10A (Aug. 1996) (recommends that state and
local bar associations study bias in their community against gays and lesbians within the legal profession and justice
system); Recommendation, Report No. 122B (Aug. 2006) (urges federal, state, local, and territorial governments to
enact legislation prohibiting discrimination on the basis of actual or perceived gender identity or expression, in
employment, housing and public accommodations).
158
112A
workplaces do not have policies or protocols in place to support employee victims in the
workplace and to hold employee offenders accountable. It is critical that employers proactively
address these crimes to ensure the safety of their workforce and to promote the productivity of
their organizations.
Respectfully Submitted,
Angela Vigil, Chair
ABA Commission on Domestic & Sexual Violence
August 2014
159
112A
GENERAL INFORMATION FORM
SUBMITTING ENTITY:
SUBMITTED BY:
Commission on Domestic & Sexual Violence
Angela Vigil, Chair
1. SUMMARY OF RESOLUTION(S).
The Resolution encourages all employers, public and private, including governments,
law schools and the legal profession, to enact formal policies on the workplace
impacts of domestic violence, dating violence, sexual violence, and/or stalking
violence, that address prevention, provide assistance to employees who experience
violence, and which hold employees who perpetrate violence accountable. The
Resolution also presents a model policy from which employers may develop their
own workplace protocols and procedures.
2. APPROVAL BY SUBMITTING ENTITY.
The Commission voted to support the resolution and report on April 22, 2014
3. HAS THIS OR A SIMILAR RESOLUTION BEEN SUBMITTED TO THE HOUSE OR BOARD
PREVIOUSLY?
No.
4. WHAT EXISTING ASSOCIATION POLICIES ARE RELEVANT TO THIS RESOLUTION AND
HOW WOULD THEY BE AFFECTED BY ITS ADOPTION?
· Recommendation, Report No. 115 (Feb. 2010) (urging Congress to reauthorize and fully fund VAWA)
· Report No. 109 (Aug. 2008) (urging federal, state, and tribal governments to
strengthen protection and assistance for victims of gender-based violence);
ABA Section of Criminal Justice, Recommendation, Volume 103 (Feb. 1978)
(supporting efforts to combat family violence).
· Recommendation, Report No. 121.2.2 (Aug. 1996) (condemning lawyers or
judges who engage in professional behavior which would constitute or
condone domestic violence, urging judges and lawyers to institute workplace
protocols to address domestic violence, and encouraging continuing
education).
· Recommendations Report No. 123.2 (August. 1998) (urging employers to
address workplace violence by adopting policies and practices to help them
better prevent and manage on-site violence and threats).
· Recommendation, Report No. 121 (Jun. 1998) (recommendation the ABA
recognize the persistence of barriers to women's advancement in the
profession; affirm the principle that there is no place in the profession for such
barriers; and call upon members of the profession to eliminate these barriers
by refusing to participate in, acquiesce in or condone barriers to women's full
integration and participation in the profession)
· Recommendation, Report No. 117.1.2 (Feb. 1992) (condemning sexual
harassment).
160
112A
·
·
·
·
Recommendation, Report No. 8 (Feb. 1989) (urges the Federal government,
the states and local governments to enact legislation prohibiting
discrimination on the basis of sexual orientation in employment, housing and
public accommodations)
Recommendation, Report. No. 10A (Aug. 1996) (recommends that state and
local bar associations study bias in their community against gays and lesbians
within the legal profession and justice system)
Recommendation, Report No. 122B (Aug. 2006) (urges federal, state, local,
and territorial governments to enact legislation prohibiting discrimination on
the basis of actual or perceived gender identity or expression, in employment,
housing and public accommodations).
These policies would not be adversely affected by the adoption of the
proposed policy.
5. WHAT URGENCY EXISTS WHICH REQUIRES ACTION AT THIS MEETING OF THE
HOUSE?
Domestic violence, dating violence, sexual violence, and/or stalking violence have
profound effects on workplaces, and in particular, for employees who are victims of
these crimes. The vast majority of workplaces do not have policies or protocols in
place to support employee victims in the workplace and to hold employee offenders
accountable. It is critical that employers address these crimes to ensure the safety and
productivity of their workplaces.
6. STATUS OF LEGISLATION.
There is no legislation related to this resolution.
7. BRIEF EXPLANATION REGARDING PLANS FOR IMPLEMENTATION OF THE POLICY, IF
ADOPTED BY THE HOUSE OF DELEGATES.
Upon adoption, the Commission on Domestic & Sexual Violence will encourage
ABA members and others to adopt some version of the proposed workplace policy in
their own workplaces.
8. COST TO THE ASSOCIATION.
None.
9. DISCLOSURE OF INTEREST.
N/A
10. REFERRALS.
Labor and Employment Law
Family Law
Business Law
Individual Rights and Responsibilities
Criminal Law
Women in the Profession
161
112A
11. CONTACT NAME AND ADDRESS INFORMATION.
Vivian Huelgo, Chief Counsel
Commission on Domestic & Sexual Violence
1050 Connecticut Avenue, NW, Suite 400
Washington, DC 20036
Phone: (202) 662-8637
Email: [email protected]
12. CONTACT NAME AND ADDRESS INFORMATION. (Who will present the report to
the House? Please include name, address, telephone number, cell phone number
and e-mail address)
Angela C. Vigil, Esq.
Baker & McKenzie, LLP
Sabadell Financial Center
1111 Brickell Avenue, Suite 1700
Miami, FL 33131
Phone: 305-789-8904
Email: [email protected]
162
112A
EXECUTIVE SUMMARY
1.
SUMMARY OF THE RESOLUTION.
The Resolution encourages all employers, public and private, including
governments, law schools and the legal profession, to enact formal policies on the
workplace impacts of domestic violence, dating violence, sexual violence, and/or
stalking violence, that address prevention, provide assistance to employees who
experience violence, and which hold employees who perpetrate violence
accountable. The Resolution also presents a model policy from which employers
may develop their own workplace protocols and procedures.
2.
SUMMARY OF THE ISSUE THAT THE RESOLUTION ADDRESSES.
Domestic violence, dating violence, sexual violence, and/or stalking violence
have profound effects on workplaces, and in particular, for employees who are
victims of these crimes. The vast majority of workplaces do not have policies or
protocols in place to support employee victims in the workplace and to hold
employee offenders accountable.
3.
PLEASE EXPLAIN HOW THE PROPOSED POLICY POSITION WILL ADDRESS THE
ISSUE.
The proposed policy position will encourage all employers, public and private,
including governments, law schools and the legal profession, to promulgate
workplace policies that address the workplace consequences of domestic dating,
sexual and/or stalking violence and presents a model policy from which
employers may develop their own workplace protocols and procedures.
4.
SUMMARY OF ANY MINORITY VIEWS.
None to date.
163
112B
AMERICAN BAR ASSOCIATION
COMMISSION ON DOMESTIC & SEXUAL VIOLENCE
REPORT TO THE HOUSE OF DELEGATES
RESOLUTION
1
2
RESOLVED, That the American Bar Association condemns forced marriage as a fundamental
human rights violation and a form of family violence and of violence against women;
3
4
5
6
FURTHER RESOLVED, That the American Bar Association urges federal, state, territorial,
local and tribal governments to amend existing laws, or to enact new laws, to prevent forced
marriages in the United States or involving US citizens or residents and to protect and support
individuals threatened by forced marriage; and
7
8
9
10
FURTHER RESOLVED, That the American Bar Association urges governments to collaborate
with legal, social services and advocacy organizations with expertise in forced marriage to
develop victim-centered legal remedies, and to promote training for judges, prosecutors, law
enforcement, child protection authorities, victim-witness advocates, and attorneys.
164
112B
REPORT
Introduction
A forced marriage lacks the consent of one or both parties, and typically involves one or more
elements of force, fraud, or coercion.1 Some individuals may choose to have their marriages
arranged, asking their families to take the lead in finding their future spouse but retaining the
ultimate right to decide whether, when and whom to marry. In a forced marriage, however,
parents or other family members may not even consult the parties as to their wishes, let alone
seek their consent. The individual to be married feels they have no meaningful say in the matter,
and that they cannot say “no” to the marriage without risking serious consequences. Families
often have mixed motivations, and family motivations may vary widely. Their reasons may even
include thinking that the marriage is in an individual’s best interests. Regardless, the impact on
an individual can be devastating. While individuals of either gender can be a victim2, the
majority are women and girls.3
Forced marriage often involves a parent or other family member’s abuse of power and control
over an individual to ensure that the marriage occurs. Physical, psychological, sexual, financial
and emotional abuse can be leveraged against the individual to coerce them to marry, and
domestic violence, rape, and other harms – including serious health complications such as
increased risks in pregnancy and childbirth – can occur within the forced marriage itself. An
individual’s freedom to determine their life’s course, including future education and employment
opportunities, can also be cut short by a forced marriage.4
1
A lack of consent can result from a lack of capacity to consent – for example, when an individual is a minor or has
a developmental disability that prevents a mature understanding of what marriage is. See US Department of State
Foreign Affairs Manual 7 FAM 1740, US Department of State,
http://www.state.gov/documents/organization/86822.pdf (a forced marriage is one in which “at least one party does
not consent or is unable to give informed consent to the marriage, and some element of duress is generally present”).
2
18% of the cases handled by the United Kingdom (UK) government’s Forced Marriage Unit (FMU) in 2013
involved male victims. See UK Forced Marriage Unit Statistics January to December 2013, UK Forced Marriage
Unit,
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/291855/FMU_2013_statistics.pdf.
3
An estimated 14.2 million girls under age 18 are forced into marriage each year. See “Marrying Too Young: End
Child Marriage” (UNFPA: New York, 2012), p, 6, available at
http://www.unfpa.org/webdav/site/global/shared/documents/publications/2012/MarryingTooYoung.pdf.
4
The US government considers forced marriage “a violation of basic human rights and in the case of minors, a form
of child abuse.” See Forced Marriage, US Department of State, Bureau of Consular Affairs,
http://travel.state.gov/content/passports/english/emergencies/forced.html (accessed April 24, 2014). The UK
government also considers forced marriage to be “a form of violence against women and men, domestic/child abuse
and a serious abuse of human rights.” See UK Forced Marriage Unit, generally, at https://www.gov.uk/forcedmarriage. Several international instruments underscore that there must be free and full consent to marriage. See, e.g.,
Universal Declaration of Human Rights Article 16(2) and United Nations Convention on the Elimination of All
Forms of Discrimination Against Women, Article 16(1)(b), available at
http://www.un.org/en/documents/udhr/index.shtml#a16 and
http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm#article16.
1
165
112B
A number of Western countries are beginning to realize that forced marriage is not only a global
problem, but also a domestic problem with transnational dimensions.5 Several have taken
specific steps to address forced marriage when it involves their citizens and residents.6 Practical
responses include promulgating multi-pronged national plans of action, issuing detailed sectorby-sector best practices guidance, promoting national awareness-raising campaigns, establishing
national helplines, and creating a dedicated government unit to develop and implement effective
policy and provide expert assistance in particular cases.7 Legal responses include changes to
immigration laws and processes, such as raising the age to sponsor or be sponsored on a
marriage-based visa; changes to marriage laws, such as raising the legal age of marriage or
making it easier to invalidate marriages that lack consent; changes to criminal laws, such as
establishing a separate criminal offense of forced marriage; and changes to civil laws, such as
creating a special “forced marriage protection order.”8
The United States lags far behind its Western counterparts, despite an increasing number of
research reports9 and media accounts10 that document that forced marriage is a serious problem
in the United States impacting many different communities.
5
The UK, for example, has estimated that 5000-8000 forced marriage cases are annually reported across the country.
See Forced Marriage - Prevalence and Service Response, Research Report No. DCSF-RR128 (July 2009), available
at https://www.education.gov.uk/publications/eOrderingDownload/DCSF-RR128.pdf. See also “Forced Marriages
in Germany More Prevalent than Thought,” Spiegel Online (November 09, 2011)(study found that 3,443 individuals
sought help at counselling and information centers in 2008 because of forced marriages), available at
http://www.spiegel.de/international/germany/new-abuse-figures-forced-marriages-in-germany-more-prevalent-thanthought-a-796760.html.
6
Western countries that have taken some action against forced marriage within their borders include Australia,
Austria, Belgium, Canada, Denmark, France, Germany, the Netherlands, Norway, Sweden, Switzerland and the UK.
7
The UK’s establishment in 2005 of a specialized “Forced Marriage Unit” (FMU), a joint operation of its Home
Office and Foreign and Commonwealth Office, has been a unique and pivotal part of the government’s response.
The FMU acts as the government’s one-stop shop for combating forced marriage and assisting victims. In 2013 the
FMU assisted in 1302 cases involving forced marriage. Supra note 2.
8
In the UK, the country that has pioneered this approach, over 575 forced marriage protection orders have been
issued. Information provided by UK’s Forced Marriage Unit, via email dated April 29, 2014 (on file with authors).
9
See, e.g., Vidya Sri and Darakshan Raja, “Voices from the Frontline: Addressing Forced Marriage Within the
United States,” (Gangashakti: 2013), available at
http://www.hks.harvard.edu/cchrp/research/working_papers/VidyaSri_VoicesFromTheFrontline.pdf [hereinafter
Gangashakti Report]; Chic Dabby-Chinoy, Asian & Pacific Islander Institute on Domestic Violence, with the
Wisconsin Refugee Family Strengthening Project. “Abusive International Marriages: Hmong Advocates Organizing
in Wisconsin.” (2012), at:
http://cdn.e2ma.net/userdata/1408433/assets/docs/abusive.international.marriages_apiidv_4.2013.pdf; “A Closer
Look at Forced & Early Marriage in New York City’s African Immigrant Communities,” Sauti Yetu Occasional
Report, Vol. 3 (Sauti Yetu Center for African Women and Families: December 2012)[hereinafter Sauti Yetu
Report]; “National Survey on Forced Marriage Among Immigrant Communities in the United States (Tahirih Justice
Center: September 2011), available at http://www.tahirih.org/site/wp-content/uploads/2011/09/REPORT-TahirihSurvey-on-Forced-Marriage-in-Immigrant-Communities-in-the-United-States-September-2011.pdf [hereinafter
Tahirih Report]; Debjani Roy, “An Introduction to Forced Marriage in the South Asian Community in the United
States,” Manavi Occasional Paper No. 9 (2011), available at
http://www.manavi.org/documents/Manavi_paper9_pass-6.26.12.pdf [hereinafter Manavi Paper]; see also Alyana
Alfaro, “Till death do us part: The forgotten US victims of forced marriage,” Al Jazeera America (January 21,
2014)(citing research at the John Jay College of Criminal Justice among families originating from the Middle
Eastern, North African and Southeast Asian (MENASA) region).
10
See, e.g., “Shedding light on forced marriage in America,” On Point with Tom Ashbrook (NPR Radio, February 3,
2014); Alyana Alfaro, “Meet the cops who save women from forced marriage,” Al Jazeera America (January 24,
2
166
112B
The Scope of Forced Marriage in the United States is Significant, and Cases Can Involve
Severe, Even Life-Threatening Abuse
Thousands of individuals across the United States may be threatened by forced marriage every
year. In 2011, the Tahirih Justice Center, a national legal services and advocacy organization
serving immigrant women survivors of violence, conducted a first-of-its-kind National Survey on
Forced Marriage in Immigrant Communities in the United States (Tahirih Survey). Over 500
respondents (including legal and social service providers, advocates, community leaders,
educators, medical and mental health professionals, child protection and law enforcement
officers, and other professionals) from 47 states reported encountering as many as 3,000 cases of
known or suspected forced marriage in the prior two years.11
Encountering forced marriage cases is not a rare phenomenon for many frontlines serviceproviders in the United States: 41% of respondents to the Tahirih Survey had come across at
least one such case.12 Another striking finding of the Tahirih Survey was the incredibly diverse
impact of forced marriage. Respondents reported cases among families originating from at least
56 different countries of origin (including India, Pakistan, Bangladesh, Yemen, the Philippines,
Afghanistan, Somalia and Mexico) and among families from varied religious backgrounds
(including Muslim, Christian, Hindu, Sikh, Buddhist, Jewish, and others).13 While not the focus
of the survey, some respondents also reported encountering victims who were “American” or
“from the United States,” presumably implying that they were not from immigrant
2014); Alyana Alfaro, “Forced marriage victims coerced into hard-to-detect immigration fraud,” Al Jazeera America
(January 23, 2014); Sadhbh Walshe, “How a bride forced to marry became ‘unchained at last’,” Al Jazeera America
(January 22, 2014); Alyana Alfaro, “Till death do us part: The forgotten US victims of forced marriage,” Al Jazeera
America (January 21, 2014); Lisa Anderson,“Ten things you didn’t know about forced marriage and immigration in
the US,” Thomson Reuters Foundation (July 29, 2013); Mosi Secret, “Court documents detail a deadly family feud
from Brooklyn to Pakistan,” The New York Times (May 22, 2013); Ihosvani Rodriguez, “Sahar Thabit, Florida mom,
burned daughter over arranged marriage,” The Huffington Post (March 20, 2013); “48 Hours Mystery: A family’s
honor,” CBS (April 7, 2012); Will Carless and Ian Lovett, “Family of Iraqi woman killed in California was in crisis,
records show,” New York Times (April 5, 2012); Julia Dahl, “‘Honor killing’ under growing scrutiny in the U.S.,”
CBS News.com (April 4, 2012); David Schwartz, “Phoenix police arrest Iraqi woman for burning daughter,” Reuters
(February 16, 2012); Michelle Goldberg, “Forced marriage and ‘honor killings’ happen in Britain, U.S. too”,
Newsweek.com (September 18, 2011).
11
Tahirih Report, supra at 2. Given that two-thirds felt there were cases of forced marriage not being identified in
the populations with which they work, these findings suggest only the tip of the iceberg on the scope of the problem
in the United States. Id., at p. 3. Evidence that the problem is significant and widespread is also supported by other
community-based research. See, e.g., Gangashakti Report (analyzing 524 surveys from college students, domestic
violence professionals and refugee service providers to find 531 cases of suspected and confirmed forced marriage);
Sauti Yetu Report (reflecting findings of a study conducted through focus groups and interviews with 30 young
women aged 16-21, that “all but 2 faced pressures to marry or were already married before the age of 18”); and
Manavi Paper (surveying frontline advocates at 12 South Asian community organizations across the country that
address violence against women, and finding that 83% of these agencies had worked with women in the prior 5
years who faced the issue of forced marriage and the consequences of those marriages, such as domestic violence or
sexual assault).
12
See also Gangashakti Report, Executive Summary (finding that more than half of all respondents reported coming
across at least one case).
13
Tahirih Report, supra at 2-3.
3
167
112B
communities.14 Respondents also reported that victims can be both US citizens and those with
other citizenship or immigration statuses who are living in the United States, and that the
marriage ceremony can take place either in the United States or in another country.15
The Tahirih Survey also confirmed that forced marriage affects both genders and all ages.16
Families may employ a wide range of tactics to force the marriages to occur. Emotional
blackmail and abuse, shaming, isolation (including restricting or monitoring movements or
communications, or preventing an individual from going to school or work), threats (including
threats of physical violence or other harm, and of being cut off from or disowned by the family
or ostracized by the community), are common points of leverage. Individuals can also be
subjected to beatings or other physical violence. They can be deceived or tricked (for example,
they may be told that a family trip abroad is just to visit relatives, when in truth a wedding awaits
them). They may also be harassed and stalked; kidnapped; taken to their parents’ country of
origin and then abandoned there; have their money, phone, or identity documents confiscated; or
be held captive in the United States or abroad. Individuals can also be subjected to death threats
or may actually be killed if they resist.17
Domestic violence, sexual violence, and emotional violence often follow in the wake of a forced
marriage.18 Victims’ feelings of despair and betrayal can also manifest in severe depression,
stress-related illnesses, declining work and academic performance and excessive absences, acting
out, alcohol and substance abuse, and self-harm, including attempted suicide and suicide.19
Existing US Laws and Protection Structures Are Not Being Fully Utilized to Protect Forced
Marriage Victims and Are Not Designed to Address Forced Marriage Situations
State-level legal responses to forced marriage are limited, and while existing laws can be tools to
prevent forced marriages or protect victims in some cases, they are not widely used or may offer
inadequate protections. To begin with, almost all states set the minimum legal age to marry at 18
but permit parental waivers to lower that age to 16, or in some states, even younger. Such
14
Id. at 8. While much of the research and media focus to date has been on immigrant communities, it is clear no
community is immune from the problem. For example, a recent NPR show featured a survivor from an Orthodox
Jewish community, and a caller shared that when he attended college in Kentucky he came across many forced
marriages among Appalachian families with girls as young as 16. See “Shedding light on forced marriage in
America,” On Point with Tom Ashbrook (NPR Radio, February 3, 2014). See also Julia Alanen, Shattering the
Silence Surrounding Forced and Early Marriage in the United States, CHILDREN'S LEGAL RIGHTS JOURNAL Vol. 32,
No. 2, Summer 2012, at p.7 (citing additional non-immigrant examples).
15
Tahirih Report, supra at 8.
16
Id. at 3.
17
Emotional blackmail and abuse, isolation and control tactics, making threats, and manipulating fears of being
rejected by family or community were reported in the Tahirih Survey as very common tactics. Nearly half of
respondents who answered the question also reported that victims had been subjected to physical violence; onequarter said victims had been threatened with death. Id. at 8-9. For further details on the broad range of coercive
tactics that families employ, please see also Gangshakti Report at 20-25.
18
See Gangashakti Report, supra at 14. About half of all respondents who encountered known cases reported
emotional, domestic, and physical violence as a consequence of the forced marriage. One-third of students who had
encountered known cases also reported rape as a consequence.
19
Id. at 14, 21-22. Half of all respondents who encountered known cases reported depression as a consequence of a
forced marriage. Id. at 14. See also Tahirih Report at 9 (noting that 42 respondents knew victims who had
contemplated or attempted suicide).
4
168
112B
provisions can conceal situations in which the underage parties themselves do not consent.20
State laws and processes regarding terminating or annulling/voiding a marriage also may not
appreciate the particular circumstances of forced marriage victims.
Many elements that can be involved in forced marriage cases constitute criminal actions (such as
assault, battery, kidnapping, and false imprisonment) and so could be investigated, charged and
prosecuted as such.21 However, victims, police and prosecutors alike may be unwilling to pursue
such charges except in the most extreme cases. Eight states, as well as the District of Columbia
and the US Virgin Islands, also have specific statutes that criminalize forcing someone into
marriage in certain circumstances.22 Again, however, their utility may be limited. The majority
arise in the context of laws against abduction, prostitution, and/or “defilement,” and some are
nearly a century old; some address forced marriage in the context of human trafficking. Overall,
these laws had other scenarios of abuse and exploitation in mind, and were clearly not designed
to deter parents from forcing their own children into marriage.23 Some of the statutes also
expressly limit the scope of their protection to female victims only, or only to individuals above
or below certain ages. 24 To date, no forced marriage prosecutions have ever been brought under
these specific criminal statutes, against a parent or anyone else.
Civil protection orders could provide another potential legal option. Such orders have proven to
be an accessible and effective tool for many victims in domestic violence situations, offering
20
See Hannah Cartwright, “Legal Age of Consent for Marriage and Sex in the 50 United States”, Global Justice
Initiative (Aug. 21, 2011), http://globaljusticeinitiative.files.wordpress.com/2011/12/united-states-age-of-consenttable11.pdf.
21
Criminal cases with forced marriage dimensions in which prosecutors charged other related crimes include People
v. Hundal, 2002 WL 31045538 (Cal. Ct. App. Sept 6, 2002)(affirming verdict against defendant for rape, attempted
rape, forcible sodomy, and false imprisonment of his wife); State v. Al-Hussaini, 6 Neb. App. 978 (1998)(affirming
sentence of man who pled guilty to first degree sexual assault of a child after marrying a 13-year-old girl); and
People v. Benu, 87 Misc. 2d 139 (1976)(finding father guilty of child endangerment because he facilitated the
marriage of his 13-year old daughter). See also “Brooklyn man charged with conspiracy to commit honor killings in
Pakistan,” Press Release, US Attorney’s Office for the Eastern District of New York (September 25, 2013)(federal
authorities charged man with conspiring to commit murder in a foreign country, transmitting threats via interstate
communications and visa fraud, in connection with forced marriage of his daughter in Pakistan); “Was Noor AlMaleki the victim of an honor killing?” 48 Hours (CBS News.com, April 7, 2012)(man convicted of second-degree
murder for running over his daughter, allegedly to punish her for her Westernized ways; he had also earlier
attempted to force her into a marriage).
22
See Cal. Penal § 265 (in effect 1872, last amended 1976); DC Code Ann. § 22-2705 (in effect 1910, last amended
2013); Md. Code Ann., Crim. Code § 11-303 (in effect 2002, last amended 2013); Minn. Stat. Ann. § 609.265 (in
effect 1963, last amended 1984); Miss. Code Ann. § 97-3-1 (in effect 1980); Nev. Rev. Stat. 201.300 (in effect 1913,
last amended 2013); Okla. Stat. Tit. 21 § 1117, §1118, and §1119 (in effect 1910, last amended 1999); Va. Code
Ann. § 18.2-355 (in effect 1975, last amended 1997); 14 V.I. Code Ann. § 1301 (in effect 1921); and W. Va. Code,
§ 61-2-14 (in effect 1882, last amended 1984).
23
In at least one state, Minnesota, arguably the criminal statute cannot be leveraged against parents who are
themselves the perpetrators of the forced marriage, insofar the crime can only be charged against someone who
takes a person under age 18 for the purpose of marriage “without the consent of the parents, guardian, or other
person having legal custody of such person” (emphasis added). Minn. Stat. Ann. § 609.265.
24
For example, three statutes expressly protect “women”: California, Oklahoma and the Virgin Islands, and
Mississippi’s statute only protects victims over age 14, while Minnesota’s statute would only reach those under age
18 (and as noted above, only where the parents have not consented). See “Criminal Laws Addressing Forced
Marriage in the United States,” Tahirih Justice Center (July 2013), available at http://www.tahirih.org/site/wpcontent/uploads/2014/02/Tahirih-MEMO-State-Criminal-Laws-Forced-Marriage-07.29.13.pdf.
5
169
112B
them a way to protect themselves that does not automatically result in criminal consequences for
abusers who are also loved ones. For several reasons, however, domestic violence civil
protection orders are often neither available nor adequate to protect victims in forced marriage
situations.25
State definitions of domestic violence and child abuse are often not expansive enough to
encompass the dynamics of forced marriage. Some states’ statutes focus on physical injury,
rather than reaching the full range of coercive threats and emotional abuse common in forced
marriage cases, or are predicated on a level or imminence of harm that may be hard for victims
to show, especially if they are being kept deliberately in the dark as to their family’s future
plans.26 Most states also limit the circumstances in which a protection order may be sought by or
on behalf of a minor, and many rely on a parent to bring the petition. The range of potential
respondents is also often too limited, failing to encompass extended family members who may
be directly involved in forced marriage situations.27 Finally, the kind of relief that can be ordered
under domestic violence civil protective orders is often not broad or flexible enough to enable
the instrument to be tailored to forced marriage victims’ unique needs. 10 states’ statutes do not
even include a “catch-all” provision that enables the judge to order whatever relief is necessary
and appropriate,28 and in any event, to realize the protective potential of such provisions, judges
would need specialized training or guidance on forced marriage.
All these limitations pose special problems for minors. Without a clear legal basis to intervene,
child protection authorities may not even see forced marriage as falling within their mandate.
Youth who are older than 16 but who have not yet reached the age of majority can also often fall
between the cracks of child protection, even as that age group can be at high risk of forced
marriage.29 Even when child protection authorities do get involved, their investigation protocols
do not factor in the acute flight risk in these cases: at the first sign of inquiry, families may
simply expedite their plans and take a child out of the country. A priority placed on keeping
families together may fail to appreciate the potential risks posed by extended family, who may
agree to foster a victim in order to continue to pressure them.
25
For a chart comparing civil protective order statutes in all 50 states and US territories, see “Domestic Violence
Civil Protection Orders (CPOs),” American Bar Association Commission on Domestic & Sexual Violence (March
2014), available at http://www.ambar.org/cdsv [hereinafter ABA CDSV Chart].
26
See, e.g., Connecticut’s domestic violence civil protection order statute at Conn. Gen. Stat. §46b-15(a)(providing
relief to a victim “who has been subjected to a continuous threat of present physical pain or physical injury by the
other person”). Child endangerment statutes provide another example of how current laws can be a misfit with
forced marriage situations. Some state statutes are broadly applicable (e.g., New York’s, which extends to any
knowing acts “likely to be injurious to the physical, mental or moral welfare of a child”), while others are more
limited and set much higher bars. See National Center for Prosecution of Child Abuse, National District Attorneys’
Association, Child Endangerment Laws (September 2012), at
http://www.ndaa.org/pdf/Child%20Endangerment%202012%20Final.pdf.
27
In at least 17 states, a petitioner cannot seek a protection order against any relative, but only based on a more
limited set of relationships. ABA CDSV Chart, supra. Forced marriage situations can involve multiple perpetrators
and facilitators within the immediate and extended family.
28
These include Georgia, Iowa, Maryland, Massachusetts, Mississippi, Missouri, Nevada, New Hampshire, North
Dakota, and Rhode Island. Id.
29
40% of the cases handled by the UK’s FMU in 2013 involved victims younger than 18. See supra note 2.
6
170
112B
A host of other state laws and policies fail to adequately address forced marriage situations or
may even make it more difficult for minor victims to access help. For example, state laws setting
licensure or reporting requirements that bar shelters from accommodating minors, limit the time
they can remain in the shelter, or require parents to be notified within hours of the minor’s
whereabouts, can also limit the options a minor has to avoid or escape a forced marriage. Many
states also have laws that expressly prohibit the “harboring” of runaway youth by any individual
or organization not holding legal custody, and some have related criminal charges that parents
could pursue against someone trying to help a minor victim, such as “interference with custodial
rights”. Some states also require parental consent for emancipation.30
At a federal level, little effort has been made to address forced marriages involving US citizens
or residents. Federal action is needed particularly in cases in which women and girls have been
taken out of the United States to force them into marriages abroad. The State Department’s
Bureau of Consular Affairs website contains some general travel advisories and selected countryspecific information for individuals who fear they may be at risk,31and the Foreign Affairs
Manual includes basic guidance for consular officers handling forced marriage cases abroad.32
Importantly, the State Department has limitations as to what it can do on its own. It does not
engage in domestic efforts to prevent forced marriage (either in general or in particular cases),
and it can only step in after a victim has already been taken abroad, when the risks and stakes
increase considerably. The State Department can also typically only assist US citizens, and
consular officers may have limited diplomatic or practical options (e.g., in the case of dual
nationals, or depending on where the victim has been taken). Some other federal agencies are
just beginning to take notice of the problem33, but also suffer from similar scope limitations.
Without a concerted and coordinated multi-agency approach—ideally, a joint operation like the
UK’s Forced Marriage Unit—victims will continue to fall between the narrow mandates and
authority of particular offices and agencies.
Victim-Centered Legal Reforms That Appreciate the Unique Dynamics and Risks in
Forced Marriage Cases Are Urgently Needed
More engagement by the government and legal community is overdue and critically needed. To
date, the vast majority of efforts to galvanize a national movement to address forced marriage in
the United States have been driven by non-profit advocates, both community-based agencies and
national advocacy organizations.
The dynamics of forced marriage pose challenges to protecting victims and deterring
perpetrators. Like domestic violence, forced marriage is a problem often hidden from view, but
30
For an overview of all the laws impacting runaway and homeless youth, see Alone Without a Home: A State-byState Review of Laws Affecting Unaccompanied Youth, National Law Center on Homelessness & Poverty and
National Network for Youth (September 2012), pp. 104-107, 221-234, available at
http://www.nlchp.org/Alone_Without_A_Home.
31
See http://travel.state.gov/content/passports/english/emergencies/forced.html.
32
See supra note 1.
33
Offices within the Departments of Justice (DOJ) and Health and Human Services (HHS), for example, are helping
facilitate outreach and education to certain DOJ and HHS grantees nationwide. The National Institute of Justice,
DOJ’s research arm, is also partially funding a study to examine the intersection of forced marriage, intimate partner
violence and sexual violence among young South Asian women and men in the Washington, D.C. metropolitan area.
7
171
112B
forced marriage cases may pose particular obstacles to detection, prevention and protection.
Forced marriage victims may be especially reluctant to seek help from anyone, let alone the
authorities. They may not be aware of their legal rights and in particular, that they have the right
to say “no” to the marriage; they may be raised to keep such matters private and speak of them
only within the family or not at all; they often face considerable pressure to put the family’s
wishes and welfare before their own; and they may be especially fearful of the possible criminal
(and potentially, immigration) consequences to their families if they seek help from the police,
the courts, or other elements of the legal system. Detection, prevention and protection is also
complicated in forced marriage cases because the problem often happens in insular families and
communities; may manifest with an outward appearance of legitimacy (a marriage); and may
result from a longstanding pattern of coercive and controlling behavior and entail primarily
emotional abuse, rather than unfold through particular violent incidents. Forced marriage cases
also often involve the risk that victims may be taken and potentially left abroad, removed from
help. Finally, law enforcement, service-providers and others encountering victims may refrain
from asking the right questions, or any questions, for fear of being perceived as culturally
insensitive, or may decline to get involved at all in what they see as a “cultural matter.”
Mindful of these obstacles, the United States should proceed carefully and prioritize victimcentered legal solutions that encourage help-seeking. A package of solutions at both the federal
and state levels that is well-vetted for unintended consequences, and that gives law enforcement
(police, prosecutors, judges, child protection officers) not only the clear authority but also the
undeniable mandate to assist victims who ask for help, is critical. Informing and infusing all
legal responses with a nuanced understanding of forced marriage is also essential. Adopting one
solution alone, for example, will be a disservice to victims, since families’ motivations are varied
and thus they may not be deterred by a particular tack. A single-pronged approach may also
actually leave victims more vulnerable, if family workarounds further conceal the forced
marriage or isolate the victim.
Legal reform alone will be insufficient. It must be made part of a thoughtful implementation and
awareness-raising strategy and accompanied by a strong parallel investment in community-based
outreach and engagement.
Ultimately, ending forced marriage in the United States will require a change in community
norms and values that condone and perpetuate this form of abuse, but the law is a crucial and asyet-untapped tool to reach that vital goal.
Respectfully Submitted,
Angela Vigil, Chair
ABA Commission on Domestic & Sexual Violence
August 2014
8
172
112B
GENERAL INFORMATION FORM
SUBMITTING ENTITY:
SUBMITTED BY:
Commission on Domestic & Sexual Violence
Angela Vigil, Chair
1.
SUMMARY OF RESOLUTION(S).
The Resolution condemns forced marriage as a fundamental human rights violation
and form of family violence and violence against women, and urges federal, state,
territorial, local, and tribal governments to amend existing laws, or to enact new laws,
to prevent forced marriages and protect and support individuals threatened by forced
marriage. The Resolution further urges governments to collaborate with legal, social
services and advocacy organizations with expertise in forced marriage to develop
these victim-centered legal remedies, and to promote training for judges, prosecutors,
law enforcement, child protection authorities, victim-witness advocates, and
attorneys.
2.
APPROVAL BY SUBMITTING ENTITY.
The Commission voted to support the resolution and report on May 6, 2014
3.
HAS THIS OR A SIMILAR RESOLUTION BEEN SUBMITTED TO THE HOUSE OR BOARD
PREVIOUSLY?
No.
4.
WHAT EXISTING ASSOCIATION POLICIES ARE RELEVANT TO THIS RESOLUTION AND
HOW WOULD THEY BE AFFECTED BY ITS ADOPTION?
·
·
Recommendation, Report No. 115 (Feb. 2010) (urging Congress to reauthorize and fully fund VAWA)
Report No. 109 (Aug. 2008) (urging federal, state, and tribal governments to
strengthen protection and assistance for victims of gender-based violence);
ABA Section of Criminal Justice, Recommendation, Volume 103 (Feb. 1978)
(supporting efforts to combat family violence).
These policies would not be adversely affected by the adoption of the proposed
policy.
5.
WHAT URGENCY EXISTS WHICH REQUIRES ACTION AT THIS MEETING OF THE
HOUSE?
A number of Western countries are beginning to realize that forced marriage is not
only a global problem, but also a domestic problem with transnational dimensions.
The United States lags far behind its Western counterparts, despite an increasing
number of research reports and media accounts that document that forced marriage is
a serious problem in the United States. Domestic violence, sexual violence, and
emotional violence often follow in the wake of a forced marriage. Victims’ feelings
of despair and betrayal can also manifest in severe depression, stress-related illnesses,
declining work and academic performance and excessive absences, alcohol and
substance abuse, and self-harm, including attempted suicide and suicide. State-level
9
173
112B
legal responses to forced marriage are limited, and while existing laws can be tools to
prevent forced marriages or protect victims in some cases, they are not widely used or
may offer inadequate protections. More engagement by the government and legal
community is overdue and critically needed.
6.
STATUS OF LEGISLATION.
There is currently no legislation related to this resolution.
7.
BRIEF EXPLANATION REGARDING PLANS FOR IMPLEMENTATION OF THE POLICY, IF
ADOPTED BY THE HOUSE OF DELEGATES.
Upon adoption, the Commission on Domestic & Sexual Violence will work with
other national organizations to address forced marriage as a human rights concern,
striving to develop appropriate, victim-centered legal responses.
8.
COST TO THE ASSOCIATION.
None.
9.
DISCLOSURE OF INTEREST.
N/A
10.
REFERRALS.
Center for Human Rights
Individual Rights and Responsibilities
Family Law
Criminal Law
Commission on Immigration
SCLAID
11.
CONTACT NAME AND ADDRESS INFORMATION.
Vivian Huelgo, Chief Counsel
Commission on Domestic & Sexual Violence
1050 Connecticut Avenue, NW, Suite 400
Washington, DC 20036
Phone: (202) 662-8637
Email: [email protected]
12.
CONTACT NAME AND ADDRESS INFORMATION. (Who will present the report to
the House? Please include name, address, telephone number, cell phone number
and e-mail address)
Angela C. Vigil, Esq.
Baker & McKenzie, LLP
Sabadell Financial Center
1111 Brickell Avenue, Suite 1700
Miami, FL 33131
Phone: 305-789-8904
Email: [email protected]
10
174
112B
EXECUTIVE SUMMARY
1.
SUMMARY OF THE RESOLUTION.
The Resolution condemns forced marriage as a fundamental human rights
violation and form of family violence and violence against women, and urges
federal, state, territorial, local, and tribal governments to amend existing laws, or
to enact new laws, to prevent forced marriages and protect and support
individuals threatened by forced marriage. The Resolution further urges
governments to collaborate with legal, social services and advocacy organizations
with expertise in forced marriage to develop these victim-centered legal remedies,
and to promote training for judges, prosecutors, law enforcement, child protection
authorities, victim-witness advocates, and attorneys.
2.
SUMMARY OF THE ISSUE THAT THE RESOLUTION ADDRESSES.
A number of Western countries are beginning to realize that forced marriage is
not only a global problem, but also a domestic problem with transnational
dimensions. The United States lags far behind its Western counterparts, despite
an increasing number of research reports and media accounts that document that
forced marriage is a serious problem in the United States. Domestic violence,
sexual violence, and emotional violence often follow in the wake of a forced
marriage. Victims’ feelings of despair and betrayal can also manifest in severe
depression, stress-related illnesses, declining work and academic performance and
excessive absences, alcohol and substance abuse, and self-harm, including
attempted suicide and suicide. State-level legal responses to forced marriage are
limited, and while existing laws can be tools to prevent forced marriages or
protect victims in some cases, they are not widely used or may offer inadequate
protections. More engagement by the government and legal community is
overdue and critically needed.
3.
PLEASE EXPLAIN HOW THE PROPOSED POLICY POSITION WILL ADDRESS THE
ISSUE.
The proposed policy position urges federal, state, territorial, local, and tribal
governments to amend existing laws, or to enact new laws, to prevent forced
marriages and protect and support individuals threatened by forced marriage. The
Resolution further urges governments to collaborate with legal, social services
and advocacy organizations with expertise in forced marriage to develop these
victim-centered legal remedies, and to promote training for judges, prosecutors,
law enforcement, child protection authorities, victim-witness advocates, and
attorneys.
4.
SUMMARY OF ANY MINORITY VIEWS.
None to date.
11
175
From:
To:
Subject:
Date:
Attachments:
Godfrey, David
Brooks, Terry
FW: Policy Proposal on rebalancing Social Security Trust Funds
Thursday, June 05, 2014 3:16:10 PM
115 with edits from drafting committee 5 20 2014 .docx
Terry,
Attached is a proposed policy on rebalancing the Social Security OASI and Disability Trust Funds. Doing so will avert a projected solvency crisis with the disability trust fund in 2016. Insolvency of
the disability insurance trust fund and the resulting cut in benefits would be devastating to the
clients we advocate for. Please review this and feel free to contact me with any questions or concerns.
We would like to list your entity as supporting this proposal, please let me know if we can do so. Also please urge your members in the House of Delegates to support this policy in August. Thanks,
David
David Godfrey
Senior Attorney
American Bar Association
Commission on Law and Aging
1050 Connecticut Ave NW #400
Washington, DC 20036
202-662-8694
[email protected]
Save the date for the new National Aging and Law Conference October 16-17, 2014 in Washington
DC, www.ambar.org/nalc2014. 176
115
AMERICAN BAR ASSOCIATION
COMMISSION ON LAW AND AGING
REPORT TO THE HOUSE OF DELEGATES
RESOLUTION
1
2
3
RESOLVED, That the American Bar Association urges Congress to reallocate payroll tax
revenues between the Old-Age and Survivors Insurance Trust Fund (OASI) and the Disability
Insurance Trust Fund (DI), as needed to prevent depletion of the reserves of either Trust Fund.
1
177
115
Report
Without congressional action, it is projected that the Social Security Disability Insurance
Trust Fund will fall below the level necessary to continue to pay full benefits to all
beneficiaries, sometime in 2016.1 The Social Security Trust fund comprises two trusts,
the Old-Age and Survivors Insurance (OASI) trust fund and the Disability Insurance (DI)
trust fund.2 Both are funded through the Social Security payroll tax and employer
match.3 The formula for allocating incoming revenues between the OASI and DI trust
funds has been adjusted eleven times in the past, changing the allocation in both
directions.4 If Congress fails to act, the Social Security Administration would be forced to
cut DI benefits to less than 80% of current levels, sometime in 2016.5 Congress has
repeatedly approved reallocations and has never allowed a reduction in benefits to occur.6
However, opposition to reallocation has arisen in some quarters. This resolution supports
reallocation as needed, continuing the American Bar Association’s consistent support of
the integrity and solvency of the Social Security system as a vital social insurance
program.
I.
Overview of the Disability Insurance System
Nearly 57 million, or 1 in 5, Americans live with disabilities.7 About 38 million,
or 1 in 10, have a serious disability. 8 Fewer than 9 million disabled Americans receive
benefits from Social Security Disability Insurance.9 Social Security Disability Insurance
(DI) is funded through payroll tax contributions.10 Social Security DI provides benefits to
workers who have contributed enough via payroll taxes to be insured, and who become
disabled to the extent that they are unable to work, before reaching full retirement age.11
Most DI beneficiaries are older Americans: seventy percent are over age 50, and thirty
percent are over age 60.12 DI provides important economic security for this population, as
many have no other source of income.13 DI benefits are paid to fewer than two million
American children, who receive the benefits as a result of their parent’s disability.14
1
Virginia P. Reno et al., Social Security Disability Insurance: Action Needed to Address Finances 1,
SOCIAL SECURITY BRIEF, No. 41 (Nat’l Acad. of Soc. Ins.), June 2013, at 1,
http://www.nasi.org/sites/default/files/research/SS_Brief_041.pdf.
2
Id.
3
Id.at 2
4
Id. At 2
5
Id. at 1.
6
Id.at 5
7
Facts for Features: Anniversary of Americans with Disabilities Act: July 26, U.S. CENSUS BUREAU NEWS
CB12-FF.16 (July 25, 2012), http://www.census.gov/newsroom/releases/pdf/cb12ff-16_disabilities.pdf.
8
Matthew W. Brault, Americans with Disabilities: 2010, HOUSEHOLD ECON. STUD. P70-131 (U.S. Census
Bureau), July 2012, at 3, http://www.census.gov/prod/2012pubs/p70-131.pdf.
9
Reno, supra note 1, at 1, 3.
10
Robert J. Myers, Greenspan Commission, Appendix J, Financial Status of the Social Security Program,
(as accessed on 4/10/2014) http://www.socialsecurity.gov/history/reports/gspan17.html
11
Benefits for Persons with Disabilities, Social Security Administration, accessed 4/14/2014
http://www.socialsecurity.gov/disability/.
12
Kathy Ruffing, Social Security Disability Insurance Is Vital to Workers With Severe Impairments, ,
Center on Budget and Policy Priorities, August 2012, (accessed 4/14/2014) http://www.cbpp.org/files/8-912ss.pdf.
13
Research, Statistics, & Policy Analysis, Social Security Administration, Monthly Snapshot (February
2014) (updates monthly) http://ssa.gov/policy/docs/quickfacts/stat_snapshot/2014-02.pdf
2
178
115
The average DI benefit for a disabled worker is about $1,140 per month, or $35 per day.15
This figure is just above the federal poverty line for a single person.16 For most DI
beneficiaries, DI benefits constitute all or most of their income.17 DI keeps millions of
Americans with disabilities and their families from deep poverty and homelessness.18
Poverty rates are substantially higher among Americans with significant disabilities that
do not receive DI than for those who have been receiving DI for at least five years.19
Even with benefits, one in five DI beneficiaries live in poverty, and the majority of
recipients are low-income.20
The Social Security Act’s disability standard is one of the strictest in the developed
world.21 According to the Organization for Economic Co-operation and Development
(OECD), the U.S. has the most restrictive and least generous disability benefit system of
all OECD member countries, with the exception of Korea.22 Most applicants are denied
benefits; fewer than 4 in 10 are approved, even after all stages of appeal.23
Those that satisfy the Social Security Act’s strict standards have severe impairments and
conditions such as cancers, kidney failure, congestive heart failure, emphysema, and
multiple sclerosis.24 Many are terminally ill: 1 in 5 male DI beneficiaries and nearly 1 in
6 female DI beneficiaries die within 5 years of receiving benefits.25 DI beneficiaries are
also three times as likely to die as other people their age.26 Despite their impairments,
many beneficiaries report eagerness to work, and some do work part-time.27 But research
14
Research, Statistics, & Policy Analysis, Social Security Administration, Monthly Snapshot (February
2014) (updates monthly) http://ssa.gov/policy/docs/quickfacts/stat_snapshot/2014-02.pdf.
15
Social Security Administration, Monthly Statistical Snapshot, December 2013,
http://ssa.gov/policy/docs/quickfacts/stat_snapshot/index.html ,.
16
MONTHLY STAT. SNAPSHOT, supra note 15, at table 2.
17
Kathy Ruffing, Social Security Disability Insurance Benefits are Vital to Workers with Severe
Impairments, CTR. ON BUDGET & POL’Y PRIORITIES 1, 9 (Aug. 9, 2012) [hereinafter Severe Impairments],
http://www.cbpp.org/cms/?fa=view&id=3818.
18
Id. at 11-12.
19
Favreault, M.M. et al., How Important Is Social Security Disability Insurance to U.S. Workers?, URB.
INST., Brief No. 36, ill 7 (June 2013), http://www.urban.org/UploadedPDF/412847-how-important-issocial-security.pdf.
20
Michelle Stegman Bailey and Jeffrey Hemmeter, Characteristics of Non institutionalized DI and SSI
Program Participants, 2010 Update, Research and Statistics Note No. 2014-02 (released February 2014) ,
http://www.socialsecurity.gov/policy/docs/rsnotes/rsn2014-02.html
21
ORGANIZATION FOR ECONOMIC CO-OPERATION & DEVELOPMENT (OECD), SICKNESS, DISABILITY, AND
WORK: BREAKING THE BARRIERS: A SYNTHESIS OF FINDINGS ACROSS OECD COUNTRIES 89 (2010),
http://ec.europa.eu/health/mental_health/eu_compass/reports_studies/disability_synthesis_2010_en.pdf.
22
Id.
23
See Severe Impairments, supra note 16, at 7–9.
24
Kathy Ruffing, “No Surprise: Disability Beneficiaries Experience High Death Rates,” Off the Charts
Blog, April 4, 2013, http://www.offthechartsblog.org/no-surprise-disability-beneficiaries-experience-highdeath-rates.
25
Id.
26
Id.
27
See, e.g., Arif Mamun et al., Employment Among Social Security Disability Program Beneficiaries,
1996-2007, 71 SOC. SEC. BULLETIN, No. 3, 11 (2011),
http://www.ssa.gov/policy/docs/ssb/v71n3/v71n3p11.pdf.
3
179
115
indicates that the average earning potential of beneficiaries with “work capacity” is a few
thousand dollars per year—clearly insufficient to support oneself.28
II.
Trends and Adjustments in Disability Insurance
Since the program’s establishment, the number of disabled workers receiving DI benefits
has grown significantly. This growth was expected and projected as far back as 1994.29
Ninety-four percent of the growth in DI beneficiaries between 1980 and 2010 was the
result of three factors: substantial growth in the U.S. population; the baby boomers aging
into their high-disability years; and women entering the workforce in large numbers.30 A
smaller driver of growth in DI benefit recipients was the increase in the Social Security
retirement age.31 As a result of the retirement age increase, disabled workers qualify for
retirement benefits later, causing them to require DI benefits for a longer period of time.32
It is important to note that many experts, including Social Security’s Chief Actuary,
caution against overstating the recent economic downturn’s role in DI benefit growth.33
The Chief Actuary estimated that the recession was responsible for just 5% of the
program’s growth.34 While economic downturns tend to boost applications for benefits,
research finds that they have a much smaller effect on benefit awards.35 The recent
economic downturn was no exception.36
In fact, the percentage of applicants awarded benefits has declined significantly during
the recent economic recession, from 39% in 2007 to just 33% in 2011.37 These statistics
suggest that applicants for benefits who did not meet the Social Security Act’s strict
disability standard were screened out.38 The drop in the percentage of applicants found
eligible at the Administrative Law Judge (ALJ) hearing level has been even more
28
Id.
The Financing Challenges Facing the Social Security Disability Insurance Program, Testimony Before
the H.R. Subcomm. on Soc. Sec. of the H. Ways & Means Comm., 113th Cong. 1, at 4 (Mar. 14, 2013)
(testimony of Stephen Goss, Chief Actuary, Soc. Sec. Admin.),
http://waysandmeans.house.gov/uploadedfiles/goss_testimony.pdf.
30
Id. at 6. In the 1970s and 1980s, women entered the workforce in large numbers, increasing the number
of women that qualified for DI benefits based on their own work records, and the total number of
Americans qualifying for DI benefits. Id.
31
Id. at 8.
32
Id.
33
Id.; see also Severe Impairments, supra note 16; see also Kathy Ruffing, Disability Benefits Are Hard to
Get – Even in Recessions, OFF THE CHARTS BLOG (Sept. 3, 2013, 2:14 PM) [hereinafter Benefits Are Hard
to Get], www.offthechartsblog.org/disability-benefits-are-hard-to-get-even-in-recessions/.
34
Goss Testimony, supra note 29, at 8-9.
35
Severe Impairments, supra note 16, at 6.
36
Severe Impairments, supra note 16, at 6.
37
SOC. SEC. ADVISORY BD., ASPECTS OF DISABILITY DECISION MAKING: DATA AND MATERIALS 1, Chart
B.7 at 12 (Feb. 2012),
http://www.ssab.gov/Publications/Disability/GPO_Chartbook_FINAL_06122012.pdf; see also Goss et al.,
Soc. Sec. Admin., Disabled Worker Allowance Rates: Variation Under Changing Economic Conditions,
ACTUARIAL NOTE NO. 153 (Aug. 2013), www.socialsecurity.gov/OACT/NOTES/pdf_notes/note153.pdf;
see also Benefits Are Hard to Get, supra note 32.
38
Id.; Benefits Are Hard to Get, supra note 32.
29
4
180
39
115
dramatic, falling by more than 10% between 2007 and 2012. Additionally, as the baby
boomers age into retirement, growth in DI has already begun to level off and is projected
to decline further in the coming years.40
The DI trust fund’s projected shortfall in 2016 is not a new development, or an
unprecedented one. Since Social Security was enacted, Congress has “reallocated”
payroll tax revenues between the OASI (retirement) and DI (disability) trust funds, to
account for demographic shifts, eleven times.41 In 1994, the last time such reallocation
occurred, Social Security Administration actuaries accurately projected that a similar
reallocation would next be required in 2016.42
As it has in the past, Congress will likely enact a modest reallocation of the 6.2% tax rate
between OASI and DI. Of the current allocation of the 6.2% payroll tax, 5.3% goes to
OASI and 0.9% goes to the DI trust fund.43 Shifting the allocation to 4.8% and 1.4%,
respectively, for two years, and then tapering back to the current distribution over the
next twelve years, would provide sufficient funding to pay full benefits in both programs
through 2033.44 Income after 2033 would cover approximately three-quarters of Social
Security benefits due thereafter.45 Experts at the Center on Budget and Policy Priorities,
the National Academy of Social Insurance, and SSA’s Chief Actuary have urged
Congress to take action to ensure the long-term solvency of both trust funds.46 Extending
the solvency of the DI trust fund through reallocation will have two-year impact on the
projected insolvency date of the OASI trust fund, moving the date from 2035 to 2033.47
Another way to ensure solvency of the DI trust fund, without reallocating the payroll tax,
would be to increase the payroll tax by 0.2%, and allocating the additional funds to the DI
trust fund.48 This one change would ensure solvency of the DI trust fund for 75 years.49
Long-term solutions to the solvency of the combined Social Security Trust funds include
eliminating the earnings cap on taxable earnings and gradually increasing the payroll tax
39
See Oversight of Rising Social Security Disability Claims and the Role of Administrative Law Judges:
Hearing Before the H.R. Subcomm. on Energy Pol’y, Health Care & Entitlements of the H. Comm. on
Oversight and Gov’t Reform, 113th Cong. (June 27, 2013) (statement of Glenn E. Sklar, Deputy Comm’r,
Office of Disability Adjudication & Rev.), http://oversight.house.gov/wpcontent/uploads/2013/06/Sklar_Statement_2013_06_271.pdf; Oversight of Rising Social Security Disability
Claims and the Role of Administrative Law Judges:
Hearing Before the H.R. Subcomm. on Energy Pol’y, Health Care & Entitlements of the H. Comm. on
Oversight and Gov’t Reform, 113th Cong., at 4 (June 27, 2013) (testimony of Thomas D. Sutton, Past
President of Bd. of Dirs., Nat’l Org. of Soc. Sec. Claimants’ Reps.), http://oversight.house.gov/wpcontent/uploads/2013/06/Sutton_Statement_2013_06_27.pdf.
40
Goss Testimony, supra note 29, at 14.
41
Reno, supra note 1, at 2.
42
Goss Testimony, supra note 29, at 1.
43
Reno, supra note 1, at 2.
44
Reno, supra note 1, at 5.
45
Virginia P. Reno & Elisa A. Walker, Nat’l Acad. of Soc. Ins., Soc. Sec. Benefits, Finances & Pol’y
Options: A Primer 26 (June 2013) [hereinafter Soc. Sec. Primer],
http://www.nasi.org/sites/default/files/research/2013_Social_Security_Primer_PDF.pdf.
46
See, e.g., Severe Impairments, supra note 16, at 24.
47
Soc. Sec. Primer, supra note 44, at 22.
48
Severe Impairments, supra note 16, at 23.
49
Soc. Sec. Primer, supra note 44, at 41.
5
181
115
50
from 6.2% to 7.2%. These long-term solutions would be politically difficult to achieve,
and therefore, Congress is unlikely to seriously consider adopting them in the immediate
future. If and when Congress does consider these solutions, the existing ABA policy
supporting the “preservation of the Social Security Trust Funds and long term solvency
of the program” may serve as the basis for ABA action.
The stability of Social Security benefits is critical for the majority of older Americans.
For more than 40% of retirees, Social Security constitutes more than 80% of household
income.51 For 8 out of 10 Social Security beneficiaries, Social Security benefits are more
than 40% of household income.52
III.
What this Resolution Does
Through this resolution, the American Bar Association urges that action be taken to avoid
the DI trust fund solvency crisis and to ensure payment of critical Social Security
benefits. Assuming that Congress will take action, this resolution outlines the strongest
method for strengthening the Social Security trust funds. This resolution urges Congress
to adjust the allocation of incoming payroll tax between the Social Security DI trust fund
and the OASI trust fund, as it has done 11 times before.
IV.
Need for ABA Action
Ensuring the solvency of the Social Security DI trust fund will become critical over the
next two years, as the 2016 projected insolvency date approaches. Social Security
solvency will continue to be an important social issue in coming decades, and changes
are needed to ensure the solvency of both the DI and OASI trust funds. The policy
recommended by this resolution will enable the American Bar Association to answer
questions, take positions, and urge action to ensure that taxpayers continue to receive the
Social Security benefits they have earned. As with many issues, different opinions exist
as to the best solution for Social Security solvency. Some argue that the best solution
would be to make it harder to qualify for DI.53 Others suggest replacing Social Security
DI with private insurance.54 Opposition to reallocation is to be expected.
50
Reno, Virginia P. & Joni Lavery. Fixing Social Security: Adequate Benefits, Adequate Financing 5, Nat’l
Acad. of Soc. Ins. (2009).
51
New Am. Found., Expanded Social Security: A Plan to Increase Retirement Security for All Americans 3,
(Next Soc. Cont. Initiative & Econ. Growth Prog.) (Apr. 3, 2013),
http://growth.newamerica.net/sites/newamerica.net/files/policydocs/LindHillHiltonsmithFreedman_Expand
edSocialSecurity_04_03_13.pdf.
52
Id.
53
Rachel Greszler & Alexander Shen, Soc. Security Disability Ins. Prog. Requires Immediate Reform, The
Foundry (Mar. 5, 2014 3:32 PM), http://blog.heritage.org/2014/03/05/social-security-disability-insuranceprogram-requires-immediate-reform. Currently, two thirds of all applications for DI are already rejected.
Id. at 16.
54
Tad DeHaven, The Rising Cost of Social Security Disability Insurance, CATO Institute (Aug. 2013),
http://www.downsizinggovernment.org/sites/downsizinggovernment.org/files/pdf/ssa-social-securitydisability-insurance_0.pdf.
6
182
115
However, this resolution and adoption of this policy by the American Bar Association
will provide support to the strongest solution to Social Security insolvency. When
Congress introduces legislation proposing solutions to the solvency issue, the American
Bar Association must be prepared to urge action to ensure financial security for the vast
majority of older Americans.
V.
Related ABA Policy
The American Bar Association has a long history of adopting policies supporting Social
Security, having enacted 15 policies on Social Security, dating back to 1979.55 This
resolution does not change, amend or alter existing policy. Rather, this resolution
provides additional detail needed to clearly support the most likely courses of action, over
the few years.
Of the American Bar Association’s 15 Social Security policies, 12 address issues of
eligibility and appeals (2/96, 10/79, 2/89, 8/93, 2/96, 7/85, 2/90, 408BOG2.1, 00M111B,
09M10B, 8/91, 2/88),56 one addresses representative payees (02M100),57 and two address
funding issues (05A113A and 2/90).58 The last two are relevant to this proposal.
·
Social Security Act. Supports continuation of the federal Old Age, Survivors, and
Disability Insurance (OASDI) program, commonly known as Social Security and
authorized by Title II of the Social Security Act, 42 U.S.C. § 401 et seq., as a
national system of social insurance. Supports preservation of the Social Security
Trust Funds and long-term solvency of the program. Identifies hallmarks of the
existing system by which to measure future proposals. 05A113A59
·
Social Security Tax Rates. Oppose legislation, which would cut significantly
current social security tax rates and return the financing of social security to a
“pay-as-you-go” system; recognizing that the federal deficit is being
misrepresented by including the social security trust fund, support legislation to
remove the trust fund from the federal government’s operating budget. 2/9060
These two funding policies address the importance of funding and the long-term solvency
of the Social Security Trust Funds. However, these policies do not address the
reallocation of payroll tax revenues, between the OASI and DI trust funds, which is
specifically addressed by this resolution. The proposed policy builds upon and
strengthens existing policies without changing them.
VI.
Conclusion
55
ABA, POL’Y ON LEGIS. & NAT’L ISSUES, 13 GREEN BOOK 364 (2012),
http://www.americanbar.org/content/dam/aba/administrative/2011_2012_Greenbook_ch_13.authcheckdam.
56
Id.
57
Id. at 291.
58
Id. at 198, 292, 364.
59
Id. at 198, 292.
60
Id. at 364.
7
183
115
Social Security is the primary source of income for the vast majority of retired
Americans, and an essential source of income for persons unable to work due to severe
disabilities. The funding for disability insurance will reach a crisis point in the next few
years, requiring action to ensure the solvency of this critical program. This policy
proposal will allow the American Bar Association to take a position on this critical issue
and to urge action to ensure the long-term solvency of the Social Security Trust funds.
The American Bar Association, through this policy, can help to guarantee that taxpayers
receive the critical retirement income that they have earned.
Respectfully submitted,
David M. English, Chair
AUGUST 2014
8
184
115
GENERAL INFORMATION FORM
Submitting Entity: American Bar Association Commission on Law and Aging
Submitted By: David English, Chair of the ABA Commission on Law and Aging
1. Summary of Resolution(s). Urges Congress to address rebalancing of the Social
Security retirement and disability insurance trust funds and to take action to assure
the long-term solvency of Social Security assuring payment of promised benefits.
2. Approval by Submitting Entity. April 11, 2014
3. Has this or a similar resolution been submitted to the House or Board previously?
No, according to our understanding.
4.
What existing Association policies are relevant to this Resolution and how would
they be affected by its adoption?
a. Social Security Act. Supports continuation of the federal Old Age,
Survivors, and Disability Insurance (OASDI) program, commonly known
as Social Security and authorized by Title II of the Social Security Act, 42
U.S.C. § 401 et seq., as a national system of social insurance. Supports
preservation of the Social Security Trust Funds and long-term solvency of
the program. Identifies hallmarks of the existing system by which to
measure future proposals. 05A113A
b. Social Security Tax Rates. Oppose legislation, which would cut
significantly current social security tax rates and return the financing of
social security to a “pay-as-you-go” system; recognizing that the federal
deficit is being misrepresented by including the social security trust fund,
support legislation to remove the trust fund from the federal government's
operating budget. 2/90
These two existing policies urge continuation and oppose cuts to funding for
Social Security. The proposed policy urges specific action to rebalance the
retirement and disability trust funds and urges additional steps to secure the
long term solvency of Social Security assuring the ability to pay promised
retirement and disability benefits.
5. If this is a late report, what urgency exists which requires action at this meeting of the
House?
N/A
6. Status of Legislation. (If applicable)
None had been filed as of this date.
7.
Brief explanation regarding plans for implementation of the policy, if adopted by the
House of Delegates.
9
185
115
We will work through ABA Governmental Affairs to support legislation as it is
introduced over the next couple of years.
8. Cost to the Association. (Both direct and indirect costs)
None, beyond normal Governmental Affairs operation.
9. Disclosure of Interest. (If applicable)
N/A
10. Referrals.
This policy resolution will be circulated to:
Standing Committee on the Delivery of Legal Services
Standing Committee on Government Affairs
Standing Committee on Legal aid and Indigent Defendants
Standing Committee on Pro Bono and Public Service
Special Committee on Bioethics and the Law
Commission on Disability Rights
Commission on Domestic and Sexual Violence
Commission on Hispanic Legal Rights and Responsibilities
Commission on Homelessness and Poverty
Commission on Youth at Risk
Section of Administrative Law and Regulatory Practice
Section of Dispute Resolution
Section of Family Law
Government and Public Sector Lawyers Division
Section of Health Law
Section of Individual Rights and Responsibilities
Judicial Division
Section of Litigation
Section of Real Property, Trust and Estate Law
Senior Lawyers Division
Solo, Small firm and General Practice Division
Section of State and Local Government Law
Section of Taxation
Section of Tort, Trial and Insurance Practice
Young Lawyers Division
National Legal Aid & Defender Association
11. Contact Name and Address Information. (Prior to the meeting. Please include name,
address, telephone number and e-mail address)
David Godfrey
ABA Commission on Law and Aging
1050 Connecticut Ave., NW, 4th Floor, Washington DC, 20036
202-662-8694
[email protected]
10
186
115
12. Contact Name and Address Information. (Who will present the report to the House?
Please include name, address, telephone number, cell phone number and e-mail
address.)
David M. English, Chair
University of Missouri Columbia Law School
203 Hulston Hall
Columbia, MO 65211-4300
(573) 882-6854
Cell: 573-489-1407
[email protected]
1
11
187
115
EXECUTIVE SUMMARY
1.
Summary of the Resolution
Urges Congress to reallocate payroll taxes between the Old Age and Survivors Insurance
Fund and the Disability Insurance Trust fund to assure solvency.
2.
Summary of the Issue that the Resolution Addresses
Without Congressional action, income and the disability trust fund will be insufficient to
pay current benefits sometime in 2016. Congress has reallocated revenues between the trust
funds 11 times in the past, reallocation is the most likely method to assure solvency.
3.
Please Explain How the Proposed Policy Position will address the issue
This proposal urges Congress to undertake reallocation of existing revenues to assure
payment of current benefits. Other ABA policies address other, less likely options to assure
solvency of the trust funds.
4.
Summary of Minority Views
Currently none.
12
188
Timeline for CJS Standards/SCLAID involvement
May 8, 2013
Notice of first reading (Dan Goyette warns that we don’t want to let these get too far
along without commenting)
May 9, 2013
Email from Dan regarding compromise with DOJ on “routine” waivers – this was the
foundation of the discussion about Resolution 113E
May 10, 2013
Comments to CJS regarding “routine” waivers
May 11-12, 2013
CJS Meeting in Boca Raton to review
May 15, 2013
CJS sends proposed standards to ABA entities for comment. Staff to staff request
regarding re-submission of comments – per Kevin Scruggs, they had SCLAID’s comments
and they did not need to be resubmitted.
July 2013
Request to file Amicus Brief in Kentucky Ethics case which has implications to 113E and
the Standards regarding waivers. CJS opposed the request and the request was denied.
This ties into the discussion of the Standards because of parallel language.
August 5, 2013 Discussion about Resolution 113E and the Standards. Because there is similar language
regarding waivers, the conversations frequently become co-mingled.
November 2, 2013
CJS Meeting regarding Standards.
March 14, 2014
Notice from CJS of 2nd Reading of Standards.
April 4, 2014
SCLAID submits comments regarding Standards
April 12, 2014 CJS Meeting in Napa regarding Standards.
May 6, 2014
CJS Standards to be proposed for adoption at Annual
May 19, 2014
Comments to proposed Standards sent to CJS
June 10, 2014 Submission to HOD still contains issues
June 11, 2014 Staff outreach to CJS staff to see whether changes could still be made (by telephone)
June 19, 2014 CJS Staff response that 2 occurrences of “ordinarily” were clerical errors and should
have come out, all the rest will stay
June 25, 2014 SCLAID sends memo to CJS leadership that it intends to oppose the Standards as
currently drafted.
July 10, 2014
CJS offers to add definition of “ordinarily” to commentary
July 18, 2014
SCLAID sends formal memo requesting CJS withdraw proposed House Resolution 110B.
July 24, 2014
CJS sends notice of withdrawal of House Resolution 110B.
189
MEMORANDUM
TO:
ABA Criminal Justice Section
FROM:
Lisa Wood, Chair, Standing Committee on Legal Aid and Indigent
Defendants (SCLAID)
DATE:
April 4, 2014
SUBJECT:
Comments on Proposed Revisions of ABA Criminal Justice Standards,
Prosecution and Defense Functions
The Standing Committee on Legal Aid and Indigent Defendants (SCLAID) submits the
following comments with respect to proposed revisions to the Standards:
1. Compensation for Prosecutors and Public Defense Counsel
Prosecution Function Standard 3-2.2 (d) and Defense Function Standard 4-1.13
(d) deal with compensation for prosecutors and defense lawyers and are
identical to each other except that one refers to prosecutors and the other to
defense lawyers. After a first sentence that recites the importance of
“compensation and benefits…, sufficient to compete with the private sector, and
regularly adjusted to attract and retain well-qualified personnel,” the next
sentence read as follows:
“Compensation for public defenders and prosecutors should be comparable.”
SCLAID is concerned that the two sentences are in some respects in conflict with
one another, because you can have comparability but still extremely inadequate
compensation for both prosecutors and defense lawyers. And frequently that is
precisely the situation, and thus comparability does not necessarily achieve
“sufficient [compensation] to compete with the private sector….” SCLAID
proposes that the second sentence remain but be changed to read as follows:
“Compensation for public defenders and prosecutors should be both adequate
and comparable.”
2. Defense Duty to Investigate and Engage Investigators (Standard 4-4.1)
SCLAID opposes revisions to current Standard 4-4.1, which reads as follows:
“Defense counsel should conduct a prompt investigation of the circumstances of
the case and explore all avenues leading to facts relevant to the merits of the
case and the penalty in the event of conviction. The investigation should include
efforts to secure information in the possession of the prosecution and law
190
enforcement authorities. The duty to investigate exists regardless of the
accused’s admission or statements to defense counsel of facts and
circumstances constituting guilt or the accused’s stated desire to plead guilty.”
As revised, proposed standard 4-4.1 provides excuses for defense lawyers not to
investigate their cases:
Subsection (a) contains the following sentence: “The scope and intensity of
investigation may vary and should be guided by the circumstances of each case,
including potential consequences to the client of either prolonging or terminating
the investigation.”
Also, a new subsection (b) states that the “duty to investigate is not necessarily
terminated” by the strength of the prosecution’s case, a client’s admissions, etc.
And a new subsection (c) states the following: “Although investigation will vary
depending on the circumstances, defense counsel’s investigation of the merits of
the criminal charges should ordinarily include efforts to secure relevant
information in the possession of the prosecution, law enforcement authorities,
and others, as well as independent investigation.”
SCLAID opposes all of the proposed changes to Standard 4-4.1 and believes
that the current standard should not be changed at all. To the extent there are
sometimes reasons to do less than a thorough investigation of a criminal case,
SCLAID urges that the subject be covered in commentary to the standard, not
included in the black letter-rule.
As revised, Standard 4-4.1 diminishes the importance of investigations and will
make it far more difficult for the defense in a post-conviction proceeding to argue
that trial counsel failed to conduct an adequate investigation. Yet, probably the
single greatest deficiency in indigent defense is the failure of defense lawyers to
conduct adequate investigations of their cases due to a lack of time and sufficient
investigative resources. Moreover, inadequate investigations are the single most
common reason that criminal convictions are reversed because of ineffective
assistance of counsel.
Absent sufficient investigation, defense counsel is unable to subject the
prosecution’s case to meaningful “adversarial testing.” The words of the U.S.
Supreme Court are worth recalling:
“T]he adversarial process protected by the Sixth Amendment requires that the
accused have ‘counsel acting in the role of an advocate. . . . The right to the
effective assistance of counsel is thus the right of the accused to require the
prosecution's case to survive the crucible of meaningful adversarial testing. . . .
[I]f counsel entirely fails to subject the prosecution's case to meaningful
adversarial testing, then there has been a denial of Sixth Amendment rights that
2
191
makes the adversary process itself presumptively unreliable.” Cronic v. United
States, 466 U.S. 648, 656, 659 (1984)
3. Duty to Explore Disposition Without Trial (Standard 4-6.1)
Current Standard 4-6.1 is as follows:
“(a) Whenever the law, nature, and circumstances of the case permit, defense
counsel should explore the possibility of an early diversion of the case from the
criminal process through the use of other community agencies.”
“(b) Defense counsel may engage in plea discussions with the prosecutor. Under
no circumstances should defense counsel recommend to a defendant
acceptance of a plea unless appropriate investigation and study of the case has
been completed, including an analysis of controlling law and the evidence likely
to be introduced at trial.”
As revised, Standard 4-6.1 reads as follows:
“(a) Defense counsel should ordinarily be open, at every stage of a criminal
matter and after consultation with the client, to discussions with the prosecutor
concerning disposition of charges by guilty plea or other negotiated disposition.
Counsel should be knowledgeable about possible dispositions that are
alternatives to trial or imprisonment, including diversion from the criminal
process.”
“(b) In every criminal matter, defense counsel should consider the individual
circumstances of the case and of the client, and should not recommend to a
client acceptance of a disposition offer unless and until appropriate investigation
and study of the matter has been completed. Such study should ordinarily
include full discussion with the client and an analysis of relevant law, the
prosecution’s evidence, and potential dispositions and likely collateral
consequences. Defense counsel should advise against a guilty plea at the first
appearance, unless, after consideration, a speedy disposition is clearly in the
client’s best interest.”
SCLAID does not oppose the proposed changes to paragraph (a). However,
with respect to the first two sentences of paragraph (b), SCLAID regards the
language, once again, as a subtle effort, much like Standard 4-4.1 discussed
above, to weaken defense counsel’s duty to investigate their cases.
Specifically, SCLAID objects to the first sentence of paragraph (b) because it
omits the phrase “under no circumstances” in describing the importance of
investigation and study before recommending to a client acceptance of a guilty
plea. Although the phrase “unless and until” means much the same thing as
“under no circumstances,” we see no reason to alter the language that is now
3
192
more than 20 years old and we are concerned that deletion of the phrase may be
construed as diminishing the necessity of investigations. Moreover, to the extent
that “under no circumstances” in current paragraph (b) is deemed somehow to be
too strong, it is obviously qualified by the word “appropriate” immediately before
“investigation and study….”
SCLAID also objects to the third sentence of paragraph (b) as presently drafted.
This sentence deals with advising defendants about pleading guilty at a first court
appearance. While we agree that it is appropriate to address the subject in the
Defense Function Standards, we believe that the proposed language should be
substantially strengthened. Specifically, we urge that the sentence be rewritten
to make clear that counsel should “rarely” ever advise a defendant to plead guilty
at a first court appearance; that it should only occur in connection with a
misdemeanor case where the defendant is assured of not being incarcerated
following a guilty plea; and that defense counsel has discussed with the client as
thoroughly as possible the risk of collateral consequences in the event of a
pleading guilty.
4. Opposing Waivers of Rights in Disposition Agreements (Standard 4-6.4 (a))
Proposed new Defense Function Standard 4-6.4 (a) and new proposed
Prosecution Function Standard 3-5.8 (b) are based upon Resolution 113 E,
which was supported by SCLAID and approved by the ABA House of Delegates
in August 2013.
Proposed Defense Function Standard 4-6.4 (a) (with an apparent typographical
error in brackets) reads as follows:
“Defense counsel should [not] accept disposition agreement waivers of postconviction claims addressing ineffective assistance of counsel, prosecutorial
misconduct, or destruction of evidence, unless such claims are based on past
instances of such conduct that are specifically identified in the agreement or in
the transcript of proceedings that address the agreement.”
The word “not” has apparently been inadvertently omitted and needs to be
added. SCLAID hopes that the Criminal Justice Section has already identified
this mistake.
More importantly, however, the second paragraph of Resolution 113 E has not
been covered in any way in the above standard. This paragraph of the
Resolution reads as follows:
“FURTHER RESOLVED THAT a defendant must be provided independent
counsel before being permitted to waive those post-conviction claims of
ineffective assistance of counsel that are specifically identified in the plea or
sentencing agreement or transcript of the proceeding.”
4
193
Accordingly, SCLAID proposes that Standard 4-6.4 include additional language,
which makes clear that defense counsel has a duty to ask that the court provide,
and the court should provide, independent counsel to advise the defendant about
the waiver of post-conviction claims that have been identified. In addition,
Prosecution Function Standard 3-5.8 should include a corollary provision, which
states that the prosecutor should not oppose requests for the appointment of
independent counsel to advise the defendant.
5. Plea Agreements and Other Negotiated Dispositions (Standard 4-6.3 (f))
This proposed new standard reads as follows:
“If defense counsel believes that prosecutorial conduct or conditions (such as
unreasonably speedy deadlines or refusal to provide discovery) have unfairly
influenced the client’s disposition decision, defense counsel should consider
bringing the circumstances to the attention of the court on the record. Counsel
should follow that course if, after consultation with the client, the client and
counsel agree that the risk of losing the negotiated disposition is outweighed by
other considerations.”
This is an important new standard because it addresses “exploding plea offers”
extended by prosecutors. These are offers to plead guilty that are made
available to the defense for only short periods of time, often without affording
defense counsel adequate time to investigate the case and to discuss the matter
sufficiently with the client. Bringing such situations to the attention of the court is
one of the few options available to defense counsel, especially since the case
law on the subject favors the prosecution practices. However, judges
occasionally exert pressure on prosecutors to afford the defense additional time
so that more informed decision-making about pleading guilty is possible.
Because of the importance of this provision, SCLAID favors strengthening the
language of the standard so that it reads as follows:
“If defense counsel believes that prosecutorial conduct or conditions (such as
unreasonably speedy deadlines or refusal to provide discovery) have unfairly
influenced the client’s disposition decision, defense counsel should consider
bringing the circumstances to the attention of the court on the record. Counsel
should follow that course UNLESS if, after consultation with the client, the client
and counsel agree that the risk of losing the negotiated disposition is outweighed
by other considerations.”
Thank you for the opportunity to comment on the proposed revisions to these extremely
important ABA Standards.
5
194
MEMORANDUM
TO:
ABA Criminal Justice Section
CJS Chair, Mat Heck
Standards Committee Chair, Hon. Mark Dwyer
Task Force Chair, Hon. John Tunheim
Reporter, Prof. Rory Little
FROM:
Lisa Wood, Chair, Standing Committee on Legal Aid and Indigent
Defendants (SCLAID)
DATE:
May 19, 2014
SUBJECT:
Comments on Proposed Revisions of ABA Criminal Justice Standards,
Prosecution and Defense Functions
The Standing Committee on Legal Aid and Indigent Defendants (SCLAID) has reviewed
the most recent draft of proposed revisions of ABA Criminal Justice Standards,
Prosecution and Defense Functions. Reference is made to our earlier comments of May
10, 2013 and April 4, 2014. Set forth below are matters that require attention, and that
will determine the position of SCLAID when the Resolution is considered by the House
of Delegates:
1.
Defense Duty to Investigate and Engage Investigators (Standard 4-4.1)
SCLAID continues to oppose the proposed revisions to current Standard 4-4.1.
As currently drafted, proposed revised Standard 4-4.1 provides excuses for defense
lawyers not to investigate their cases:
New subsection (b) states that the “duty to investigate is not necessarily terminated” by
the strength of the prosecution’s case, a client’s admissions, etc.
And a new subsection (c) states the following: “Although investigation will vary
depending on the circumstances, defense counsel’s investigation of the merits of the
criminal charges should ordinarily include efforts to secure relevant information in the
possession of the prosecution, law enforcement authorities, and others, as well as
independent investigation.”
As noted below, the qualifying words “necessarily” [para. (b)] and “ordinarily” [para. (c)]
were not deleted from this Standard as discussed at the Council meeting on April
12th in connection with the earlier comments submitted by SCLAID. Similar qualifying
language is contained in the second sentence of paragraph (c) [“Although investigation
will vary depending on the circumstances, …”]. It was our understanding based on our
participation in the Section’s meeting on April 12, 2014 that such qualifiers were being
195
removed from the proposed revised Standards in general, but it is especially important
to do so in this particular standard. As we pointed out in our earlier comments,
inadequate investigations are the single most common reason that criminal convictions
are reversed because of ineffective assistance of counsel. The inclusion of qualifying
language diminishes the importance of investigations and undermines meaningful
“adversarial testing’ of the prosecution’s case as discussed and emphasized by
SCOTUS in Cronic v. United States. According to the Scope and Function section of the
Standards [4-1.1 (b)], “These Standards are intended to provide guidance for the
professional conduct and performance of defense counsel. They are not intended to
modify a defense attorney’s obligations under applicable rules, statutes or the
constitution.” The standards are aspirational in nature (as reflected by use of the word
“should” throughout) and they describe “best practices.” Neither this objective nor this
purpose are served by diluting defense counsel’s duty with this sort of equivocating. To
the extent that circumstances may vary from case to case, it should be dealt with in the
Commentary, not in the black letter standard.
Paragraphs b and c of the standard should read as follows:
Standard 4-4.1 Duty to Investigate and Engage Investigators
(b) The duty to investigate is not necessarily terminated by factors such as the
apparent force of the prosecution’s evidence, a client’s alleged admissions to others of
facts suggesting guilt, a client’s expressed desire to plead guilty or that there should be
no investigation, or statements to defense counsel supporting guilt.
(c) Defense counsel’s investigative efforts should commence promptly and should
explore appropriate avenues that reasonably might lead to information relevant to the
merits of the matter, consequences of the criminal proceedings, and potential
dispositions and penalties. Although investigation will vary depending on the
circumstances, Defense counsel’s investigation of the merits of the criminal charges
should ordinarily include efforts to secure relevant information in the possession of the
prosecution, law enforcement authorities, and others, as well as independent
investigation. Counsel’s investigation should also include evaluation of the
prosecution’s evidence (including possible re-testing or re-evaluation of physical,
forensic, and expert evidence) and consideration of inconsistencies, potential avenues
of impeachment of prosecution witnesses, and other possible suspects and alternative
theories that the evidence may raise.
2.
Duty to Explore Disposition Without Trial (Standard 4-6.1)
Current Standard 4-6.1 is as follows:
“(a) Whenever the law, nature, and circumstances of the case permit, defense counsel
should explore the possibility of an early diversion of the case from the criminal process
through the use of other community agencies.”
2
196
“(b) Defense counsel may engage in plea discussions with the prosecutor. Under no
circumstances should defense counsel recommend to a defendant acceptance of a plea
unless appropriate investigation and study of the case has been completed, including
an analysis of controlling law and the evidence likely to be introduced at trial.”
As proposed to be revised, Standard 4-6.1 reads as follows:
“(a) Defense counsel should ordinarily be open, at every stage of a criminal matter and
after consultation with the client, to discussions with the prosecutor concerning
disposition of charges by guilty plea or other negotiated disposition. Counsel should be
knowledgeable about possible dispositions that are alternatives to trial or imprisonment,
including diversion from the criminal process.”
“(b) In every criminal matter, defense counsel should consider the individual
circumstances of the case and of the client, and should not recommend to a client
acceptance of a disposition offer unless and until appropriate investigation and study of
the matter has been completed. Such study should ordinarily include full discussion
with the client and an analysis of relevant law, the prosecution’s evidence, and potential
dispositions and likely collateral consequences. Defense counsel should advise against
a guilty plea at the first appearance, unless, after consideration, a speedy disposition is
clearly in the client’s best interest.”
SCLAID has continuing concerns about the third sentence of paragraph (b) as presently
drafted. This sentence deals with advising defendants about pleading guilty at a first
court appearance. While we agree that it is appropriate to address the subject in the
Defense Function Standards, we believe that the proposed language should be
substantially strengthened. Specifically, we urge that the sentence be rewritten to make
clear that counsel should “rarely” ever advise a defendant to plead guilty at a first court
appearance; that it should only occur in connection with a misdemeanor case where the
defendant is assured of not being incarcerated following a guilty plea; and that defense
counsel has discussed with the client as thoroughly as possible the risk of collateral
consequences in the event of pleading guilty.
Paragraph b of the Standard should read as follows:
Standard 4-6.1 Duty to Explore Disposition Without Trial
(b) In every criminal matter, defense counsel should consider the individual
circumstances of the case and of the client, and should not recommend to a client
acceptance of a disposition offer unless and until appropriate investigation and study of
the matter has been completed. Such study should include discussion with the client
and an analysis of relevant law, the prosecution’s evidence, and potential dispositions
and relevant collateral consequences. Defense counsel should advise against a guilty
plea at the first appearance, unless, after discussion with the client, a speedy
disposition is clearly in the client’s best interest.
3
197
3.
Standard 4-6.3 (c)
For the reasons stated above relating to the use of the word “ordinarily,” it should be
deleted as indicated below. Additionally, the word “act” should be removed – it is either
a typographical error or surplusage.
Paragraph c of the Standard should read as follows:
Standard 4-6.3 Plea Agreements and Other Negotiated Dispositions
(c) Defense counsel should fully prepare the client for any hearing before a court
related to entering or accepting a negotiated disposition, and for any pre-disposition or
post-disposition interview conducted by the prosecution or by court agents such as
presentence investigators or probation officers. Counsel should ordinarily be present at
any such interview act to protect the client’s interests there.
4.
Opposing Waivers of Rights in Disposition Agreements (Standard 4-6.4)
Standard 4-6.4 (b)
Once again, for the reasons stated above relating to the use of the word “ordinarily,” it
should be deleted as indicated below.
Paragraph b of the Standard should read as follows:
Standard 4-6.4
Opposing Waivers of Rights in Disposition Agreements
(b) In addition to claims addressed in (a), defense counsel should ordinarily not
agree to waivers of any other important defense rights such as the right to appeal
(including sentencing appeals), to receive Brady discovery, or to contest the conviction
or sentence in collateral proceedings. In negotiations, counsel should request the
prosecution to provide specific, individualized reasons for their inclusion. Counsel
should also consult with the client about whether to object to such waivers in court.
Thank you for the opportunity to comment on the proposed revisions to these extremely
important ABA Standards.
cc: Neal Sonnett
Dan Goyette
Justine Luongo
Norman Lefstein
4
198
From:
To:
Cc:
Subject:
Date:
Wible, Tori Jo
Wood, Lisa ([email protected]); Stephen Hanlon ; Daniel T. Goyette ([email protected])
Brooks, Terry
CJS Standards
Thursday, June 12, 2014 11:16:00 AM
Good morning, we are working on pursuing some behind the scenes, staff-level diplomacy, so want
to hold off sending the memo just yet. I’ve been talking with Kevin Scruggs, the staff director of the
Standards Project. He took/will take the SCLAID concerns to the Reporter and will get back to me. I’ve stressed that SCLAID is quite concerned but haven’t pulled the trigger on opposition yet.
Tori Jo Wible
Committee Counsel Division for Legal Services
American Bar Association | 321 North Clark Street | Chicago, IL 60654
T: 312.988.5753
[email protected] | www.americanbar.org
199
From:
To:
Subject:
Date:
Wible, Tori Jo
Scruggs, Kevin
SCLAID concerns
Thursday, June 12, 2014 11:16:00 AM
Kevin, for you to send on to the reporter – excerpted from our prior memos. Thanks for your
assistance in resolving these issues.
1.
Defense Duty to Investigate and Engage Investigators (Standard 4-4.1)
SCLAID continues to oppose the proposed revisions to current Standard 4-4.1 and believes that the
current standard should not be changed at all. To the extent there are sometimes reasons to do
less than a thorough investigation of a criminal case, SCLAID urges that the subject be covered in
commentary to the standard, not included in the black letter rule.
As currently drafted, proposed revised Standard 4-4.1 provides excuses for defense lawyers not to
investigate their cases: New subsection (b) states that the “duty to investigate is not necessarily terminated” by the strength
of the prosecution’s case, a client’s admissions, etc. And the new subsection (c) states the following: “Although investigation will vary depending on the
circumstances, defense counsel’s investigation of the merits of the criminal charges should
ordinarily include efforts to secure relevant information in the possession of the prosecution, law
enforcement authorities, and others, as well as independent investigation.”
As noted below, the qualifying words “necessarily” [para. (b)] and “ordinarily” [para.
(c)] were not deleted from this Standard as discussed at the Council meeting on April
12, 2014 in connection with the earlier comments submitted by SCLAID. Similar
qualifying language is contained in the second sentence of paragraph (c) [“Although
investigation will vary depending on the circumstances, …”]. It was our
understanding based on our participation in the Section’s meeting on April 12, 2014
that such qualifiers were being removed from the proposed revised Standards in
general, but it is especially important to do so in this particular standard.
Paragraphs b and c of the standard should read as follows:
Standard 4-4.1 Duty to Investigate and Engage Investigators
(b) The duty to investigate is not necessarily terminated by factors such as the apparent force of
the prosecution’s evidence, a client’s alleged admissions to others of facts suggesting guilt, a client’s
expressed desire to plead guilty or that there should be no investigation, or statements to defense
counsel supporting guilt.
(c) Defense counsel’s investigative efforts should commence promptly and should explore
appropriate avenues that reasonably might lead to information relevant to the merits of the matter,
200
consequences of the criminal proceedings, and potential dispositions and penalties. Although
investigation will vary depending on the circumstances, Defense counsel’s investigation of the
merits of the criminal charges should ordinarily include efforts to secure relevant information in the
possession of the prosecution, law enforcement authorities, and others, as well as independent
investigation. Counsel’s investigation should also include evaluation of the prosecution’s evidence
(including possible re-testing or re-evaluation of physical, forensic, and expert evidence) and
consideration of inconsistencies, potential avenues of impeachment of prosecution witnesses, and
other possible suspects and alternative theories that the evidence may raise.
2.
Opposing Waivers of Rights in Disposition Agreements (Standard 4-6.4)
Standard 4-6.4 (b)
Once again, for the reasons stated above relating to the use of the word “ordinarily,” it should be
deleted as indicated below.
Paragraph b of the Standard should read as follows:
Standard 4-6.4 Opposing Waivers of Rights in Disposition Agreements
(b) In addition to claims addressed in (a), defense counsel should ordinarily not agree to
waivers of any other important defense rights such as the right to appeal (including sentencing
appeals), to receive Brady discovery, or to contest the conviction or sentence in collateral
proceedings. In negotiations, counsel should request the prosecution to provide specific,
individualized reasons for their inclusion. Counsel should also consult with the client about whether
to object to such waivers in court.
3. Use of qualifying terms such as “ordinarily”
A continuing issue has been the use of qualifying terms such as “ordinarily” to water down the
standards. As egregious as their use in the Defense Function Standards is, their use in the
Prosecution Function Standards is even more troubling. This dilution results in Standards that
require little of prosecutors and defenders beyond finding the allowable exceptions under these
new weakened guidelines. For example:
Standard 3-5.4(e): The prosecutor should ordinarily provide specific responses to defense
requests for specific information rather than boilerplate or a general acknowledgement of
discovery obligations. ; and
New Standard 3-5.5 (c): Materials should ordinarily be preserved at least until a criminal case
is finally disposed of or is final on appeal and the time for further appeal has expired. In
felony cases, if post-conviction collateral litigation is reasonably anticipated, materials should
ordinarily be preserved until that litigation is concluded or time-limits have expired. In death
penalty cases, information should be preserved until the penalty is carried out or is
201
precluded.
The word “ordinarily” appears 52 times in the Standards, “necessarily” appears 7 times. All of these
qualifiers should be reviewed carefully for removal. Tori Jo Wible
Committee Counsel Division for Legal Services
American Bar Association | 321 North Clark Street | Chicago, IL 60654
T: 312.988.5753
[email protected] | www.americanbar.org
202
From:
To:
Cc:
Subject:
Date:
Attachments:
Scruggs, Kevin
Wible, Tori Jo
Neal Sonnett ([email protected]); [email protected]; [email protected]; Messmer, Jane
RE: SCLAID concerns
Thursday, June 19, 2014 3:43:56 PM
Last-minute revision to 4-6.4(b) by RKL.DOCX
Hi Tori Jo,
After listening to the audiotape of the CJS Council meeting, “ordinarily” should have been taken out
in 4.1 (c). There was no discussion about “necessarily” in (b). The “ordinarily” in 6.4 (b) should have
also been taken out and replaced with an “unless…” clause as shown in the attachment. I couldn’t
find any discussion of removing “ordinarily” or “necessarily” universally. Please let me know if this
covers your concerns, as I would like to try to get these changes to Rules and Calendar before they
go to print.
Thanks for pointing these corrections out to us. Best,
Kevin
Kevin Scruggs
Director, Criminal Justice Standards Project
American Bar Association
1050 Connecticut Ave. NW, Suite 400
Washington, DC 20036
Phone: 202-662-1503
Fax: 202-662-1501
[email protected]
Twitter: @CJSStandards Facebook: ABA CJS Standards
LinkedIn: ABA CJS Standards From: Wible, Tori Jo
Sent: Thursday, June 12, 2014 12:16 PM
To: Scruggs, Kevin
Subject: SCLAID concerns
Kevin, for you to send on to the reporter – excerpted from our prior memos. Thanks for your
assistance in resolving these issues.
1.
Defense Duty to Investigate and Engage Investigators (Standard 4-4.1)
SCLAID continues to oppose the proposed revisions to current Standard 4-4.1 and believes that the
current standard should not be changed at all. To the extent there are sometimes reasons to do
less than a thorough investigation of a criminal case, SCLAID urges that the subject be covered in
commentary to the standard, not included in the black letter rule.
As currently drafted, proposed revised Standard 4-4.1 provides excuses for defense lawyers not to
investigate their cases: 203
New subsection (b) states that the “duty to investigate is not necessarily terminated” by the strength
of the prosecution’s case, a client’s admissions, etc. And the new subsection (c) states the following: “Although investigation will vary depending on the
circumstances, defense counsel’s investigation of the merits of the criminal charges should
ordinarily include efforts to secure relevant information in the possession of the prosecution, law
enforcement authorities, and others, as well as independent investigation.”
As noted below, the qualifying words “necessarily” [para. (b)] and “ordinarily” [para.
(c)] were not deleted from this Standard as discussed at the Council meeting on April
12, 2014 in connection with the earlier comments submitted by SCLAID. Similar
qualifying language is contained in the second sentence of paragraph (c) [“Although
investigation will vary depending on the circumstances, …”]. It was our
understanding based on our participation in the Section’s meeting on April 12, 2014
that such qualifiers were being removed from the proposed revised Standards in
general, but it is especially important to do so in this particular standard.
Paragraphs b and c of the standard should read as follows:
Standard 4-4.1 Duty to Investigate and Engage Investigators
(b) The duty to investigate is not necessarily terminated by factors such as the apparent force of
the prosecution’s evidence, a client’s alleged admissions to others of facts suggesting guilt, a client’s
expressed desire to plead guilty or that there should be no investigation, or statements to defense
counsel supporting guilt.
(c) Defense counsel’s investigative efforts should commence promptly and should explore
appropriate avenues that reasonably might lead to information relevant to the merits of the matter,
consequences of the criminal proceedings, and potential dispositions and penalties. Although
investigation will vary depending on the circumstances, Defense counsel’s investigation of the
merits of the criminal charges should ordinarily include efforts to secure relevant information in the
possession of the prosecution, law enforcement authorities, and others, as well as independent
investigation. Counsel’s investigation should also include evaluation of the prosecution’s evidence
(including possible re-testing or re-evaluation of physical, forensic, and expert evidence) and
consideration of inconsistencies, potential avenues of impeachment of prosecution witnesses, and
other possible suspects and alternative theories that the evidence may raise.
2.
Opposing Waivers of Rights in Disposition Agreements (Standard 4-6.4)
Standard 4-6.4 (b)
Once again, for the reasons stated above relating to the use of the word “ordinarily,” it should be
deleted as indicated below.
204
Paragraph b of the Standard should read as follows:
Standard 4-6.4 Opposing Waivers of Rights in Disposition Agreements
(b) In addition to claims addressed in (a), defense counsel should ordinarily not agree to
waivers of any other important defense rights such as the right to appeal (including sentencing
appeals), to receive Brady discovery, or to contest the conviction or sentence in collateral
proceedings. In negotiations, counsel should request the prosecution to provide specific,
individualized reasons for their inclusion. Counsel should also consult with the client about whether
to object to such waivers in court.
3. Use of qualifying terms such as “ordinarily”
A continuing issue has been the use of qualifying terms such as “ordinarily” to water down the
standards. As egregious as their use in the Defense Function Standards is, their use in the
Prosecution Function Standards is even more troubling. This dilution results in Standards that
require little of prosecutors and defenders beyond finding the allowable exceptions under these
new weakened guidelines. For example:
Standard 3-5.4(e): The prosecutor should ordinarily provide specific responses to defense
requests for specific information rather than boilerplate or a general acknowledgement of
discovery obligations. ; and
New Standard 3-5.5 (c): Materials should ordinarily be preserved at least until a criminal case
is finally disposed of or is final on appeal and the time for further appeal has expired. In
felony cases, if post-conviction collateral litigation is reasonably anticipated, materials should
ordinarily be preserved until that litigation is concluded or time-limits have expired. In death
penalty cases, information should be preserved until the penalty is carried out or is
precluded.
The word “ordinarily” appears 52 times in the Standards, “necessarily” appears 7 times. All of these
qualifiers should be reviewed carefully for removal. Tori Jo Wible
Committee Counsel Division for Legal Services
American Bar Association | 321 North Clark Street | Chicago, IL 60654
T: 312.988.5753
[email protected] | www.americanbar.org
205
MEMORANDUM
TO:
ABA Criminal Justice Section
CJS Chair, Mat Heck
Standards Committee Chair, Hon. Mark Dwyer
Task Force Chair, Hon. John Tunheim
Reporter, Prof. Rory Little
FROM:
Lisa Wood, Chair, Standing Committee on Legal Aid and Indigent
Defendants (SCLAID) and Steve Hanlon, SCLAID member, and Chair of
SCLAID’s Indigent Defense Advisory Group (IDAG)
DATE:
June 20, 2014
SUBJECT:
Comments on Proposed Revisions of ABA Criminal Justice Standards,
Prosecution and Defense Functions
The Standing Committee on Legal Aid and Indigent Defendants (SCLAID) has reviewed
the submitted ABA Criminal Justice Standards, Prosecution and Defense Functions,
House Resolution and Report 110A, and was frankly disheartened to see that many of
the changes we had requested in our prior comments had not been made despite your
Section’s leadership’s repeated assurances that the changes would be made before the
Resolution and Report was submitted. Reference is made to our earlier comments of
May 10, 2013, April 4, 2014 and May 19, 2014, and to our many meetings and calls
throughout 2013 and 2014, and in particular our participation in your recent leadership
meetings on November 2, 2013 and April 12, 2014. Our staff has conferred with
Criminal Justice Section staff counsel, Kevin Scruggs about this matter. He has
indicated that two of the changes we thought CJS had agreed to, were supposed to
have been made prior to the filing of 110A, but were omitted due to clerical oversights.
However, there are several serious concerns that remain unaddressed. To assist in
your quick review, we have set forth below the key issues of concern to SCLAID and
IDAG. These are core issues for SCLAID given its indigent defense policy work, and in
the unfortunate event we cannot work these issues out with amendments along the
lines we had understood we had already agreed, we will need to actively oppose and
speak strongly in opposition to the resolution when it is considered by the House of
Delegates:
1.
Defense Duty to Investigate and Engage Investigators (Standard 4-4.1)
SCLAID continues to oppose the proposed revisions to current Standard 4-4.1 and
believes that the current standard should not be changed at all. To the extent there are
sometimes reasons to do less than a thorough investigation of a criminal case, SCLAID
urges that the subject be covered in commentary to the standard, not included in the
black letter rule.
206
As currently drafted, proposed revised Standard 4-4.1 provides excuses for defense
lawyers not to investigate their cases:
New subsection (b) states that the “duty to investigate is not necessarily terminated” by
the strength of the prosecution’s case, a client’s admissions, etc.
And the new subsection (c) states the following: “Although investigation will vary
depending on the circumstances, defense counsel’s investigation of the merits of the
criminal charges should ordinarily include efforts to secure relevant information in the
possession of the prosecution, law enforcement authorities, and others, as well as
independent investigation.”
As noted below, the qualifying word “necessarily” [para. (b)] was not deleted from this
Standard as discussed at the Council meeting on April 12, 2014 in connection with the
earlier comments submitted by SCLAID. Similar qualifying language is contained in the
second sentence of paragraph (c) [“Although investigation will vary depending on the
circumstances, …”]. It was our understanding based on our participation in the Section’s
meeting on April 12, 2014 that such qualifiers were being removed from the proposed
revised Standards in general, but it is especially important to do so in this particular
standard.
As we pointed out in our earlier comments, inadequate investigations are the single
most common reason that criminal convictions are reversed because of ineffective
assistance of counsel. The inclusion of qualifying language diminishes the importance
of investigations and undermines meaningful “adversarial testing’ of the prosecution’s
case as discussed and emphasized by SCOTUS in Cronic v. United States. According
to the Scope and Function section of the Standards [4-1.1 (b)], “These Standards are
intended to provide guidance for the professional conduct and performance of defense
counsel. They are not intended to modify a defense attorney’s obligations under
applicable rules, statutes or the constitution.” The standards are aspirational in nature
(as reflected by use of the word “should” throughout) and they describe “best practices.”
Neither this objective nor this purpose is served by diluting defense counsel’s duty with
this sort of equivocating. To the extent that circumstances may vary from case to case,
it should be dealt with in the Commentary, not in the black letter standard.
Paragraphs b and c of the standard should read as follows:
Standard 4-4.1 Duty to Investigate and Engage Investigators
(b) The duty to investigate is not necessarily terminated by factors such as the
apparent force of the prosecution’s evidence, a client’s alleged admissions to others of
facts suggesting guilt, a client’s expressed desire to plead guilty or that there should be
no investigation, or statements to defense counsel supporting guilt.
(c) Defense counsel’s investigative efforts should commence promptly and should
explore appropriate avenues that reasonably might lead to information relevant to the
2
207
merits of the matter, consequences of the criminal proceedings, and potential
dispositions and penalties. Although investigation will vary depending on the
circumstances, Defense counsel’s investigation of the merits of the criminal charges
should include efforts to secure relevant information in the possession of the
prosecution, law enforcement authorities, and others, as well as independent
investigation. Counsel’s investigation should also include evaluation of the
prosecution’s evidence (including possible re-testing or re-evaluation of physical,
forensic, and expert evidence) and consideration of inconsistencies, potential avenues
of impeachment of prosecution witnesses, and other possible suspects and alternative
theories that the evidence may raise.
2.
Opposing Waivers of Rights in Disposition Agreements (Standard 4-6.4)
Standard 4-6.4 (b)
Once again, for the reasons stated above relating to the use of the word “ordinarily,” it
should be deleted as indicated below.
Paragraph b of the Standard should read as follows:
Standard 4-6.4
Opposing Waivers of Rights in Disposition Agreements
(b) In addition to claims addressed in (a), defense counsel should ordinarily not
agree to waivers of any other important defense rights such as the right to appeal
(including sentencing appeals), to receive Brady discovery, or to contest the conviction
or sentence in collateral proceedings unless after consultation with the client is is
agreed that the risk of losing the negotiated disposition outweighs other
considerations.. In negotiations, counsel should request the prosecution to provide
specific, individualized reasons for their inclusion of such waivers. Counsel should
also consult with the client about whether to object to such waivers in court.
3. Use of qualifying terms such as “ordinarily”
SCLAID thanks the Section for the opportunity to comment on the Standards at the
previous levels of review. However, a continuing issue has been the use of qualifying
terms such as “ordinarily” to water down the standards. As egregious as their use in the
Defense Function Standards is their use in the Prosecution Function Standards. This
dilution results in Standards that require little of prosecutors and defenders beyond
finding the allowable exceptions under these new weakened guidelines.
For example:
Standard 3-5.4(e): The prosecutor should ordinarily provide specific responses to
defense requests for specific information rather than boilerplate or a general
acknowledgement of discovery obligations. ; and
3
208
New Standard 3-5.5 (c): Materials should ordinarily be preserved at least until a
criminal case is finally disposed of or is final on appeal and the time for further
appeal has expired. In felony cases, if post-conviction collateral litigation is
reasonably anticipated, materials should ordinarily be preserved until that litigation
is concluded or time-limits have expired. In death penalty cases, information
should be preserved until the penalty is carried out or is precluded.
The word “ordinarily” appears 50 times in the Standards, “necessarily” appears 7 times.
All of these qualifiers should be reviewed carefully for removal.
As we have demonstrated over the last several years through our comments to
the proposed Standards, and our active participation in your meetings about the
development of these Standards, SCLAID is willing to continue to assist with
amendments to these extremely important ABA Standards. If we are not able to address
the concerns raised in this memo, however, consistent with our mission and policies, we
will need to actively challenge the Standards. We sincerely hope this will not be
necessary.
cc: Neal Sonnett
Stephen Saltzburg
Dan Goyette
Justine Luongo
Norman Lefstein
4
209
July 10, 2014
Standing Committee on Legal Aid and Indigent Defendants
American Bar Association
321 N. Clark Street, 19th Floor
Chicago, IL 60654-7598
Re: Use of the word “ordinarily” in the Prosecution and Defense Function Standards.
Dear Standing Committee on Legal Aid and Indigent Defendants leaders,
Thank you for contacting the Criminal Justice Section regarding your concerns about the use of the word “ordinarily”
in the Prosecution and Defense Function Standards. Where we have discovered that the vote of the Council was
inadvertently not reflected in the final product, we have made the appropriate corrections. Unfortunately, we cannot
make any further changes to the "black letter" language that were not specifically authorized and approved by the
final vote of the Criminal Justice Council at our April meeting.
However, in order to be as responsive as possible to your concerns, we have drafted the following definition of
"ordinarily" that will be inserted into the official Commentary to accompany the Standards:
The word “ordinarily” as used in these standards is intended to reflect what is required or expected in the typical
broad range of cases. It signifies a standard for all matters or situations addressed by the standard, other than
those involving unusual or “extra-ordinary” circumstances that may justify a departure from the
standard. “Ordinarily” signals a standard that should generally be viewed as universal, while recognizing that
extreme or unanticipated circumstances may, at times, permit a departure. A prosecutor or defense counsel who
departs or seeks to depart from the general requirement of a standard in which “ordinarily” appears, should be
prepared to identify and defend with specificity the “extra-ordinary” circumstances that justify the departure.
We trust that this addition to the Commentary will ameliorate some of your concerns, and we greatly appreciate all
of your contributions to these Standards.
Very Truly Yours,
MATHIAS H. HECK, JR.
Chair, ABA Criminal Justice Section
210
AMERICAN BAR ASSOCIATION
Standing Committee on Legal Aid
and Indigent Defendants
Chair
Lisa C. Wood
Foley Hoag LLP
Seaport World Trade Ctr West
155 Seaport Boulevard
Boston, MA 02210-2600
[email protected]
Members
Jacquelynne Bowman
Boston, MA
Maureen Essex
Baltimore, MD
Daniel Goyette
Louisville, KY
Danny Greenberg
New York, NY
Stephen Hanlon
St. Louis, MO
Seymour James, Jr.
New York, NY
Hon. Thomas Kilbride
Rock Island, IL
Hon. Jon Levy
Portland, ME
Ada Shen-Jaffe
Seattle, WA
Drucilla Stender Ramey
San Francisco, CA
Board of Governors Liaison
Josephine McNeil
West Newton, MA
Committee Counsel
Terry Brooks
312-988-5747
[email protected]
Associate Counsel
Bev Groudine
312-988-5771
[email protected]
Assistant Counsel
Tori Jo Wible
312-988-5753
[email protected]
321 N. Clark Street
Chicago, Illinois 60654-7598
www.abalegalservices.org
MEMORANDUM TO: FROM: Mathias Heck, Criminal Justice Section Chair Hon. Mark Dwyer, Criminal Justice Standards Committee Chair Hon. John Tunheim, Criminal Justice Section Task Force Chair, Prof. Rory Little, Criminal Justice Standards Reporter Lisa Wood, Chair, Standing Committee on Legal Aid and Indigent Defendants (SCLAID) Steve Hanlon, SCLAID Member/Chair of Indigent Defense Advisory Group July 18, 2014 DATE: SUBJECT: Request to Withdraw Proposed House Resolution 110B The Standing Committee on Legal Aid and Indigent Defendants (SCLAID) has reviewed the additional change proposed by the Criminal Justice Section (CJS) in response to our multiple expressions of concern regarding the proposed revised ABA Criminal Justice Standards, Prosecution and Defense Functions (House of Delegates Resolution and Report 110B). In particular, CJS proposes adding a definition of “ordinarily” to the commentary of the proposed revised Standards. SCLAID cannot agree to this; it does not fully address the concerns the Committee has expressed. The definition is an inadequate solution to the serious misimpression that is created by the pervasive use of “ordinarily” throughout the proposed revised Standards, and its placement in commentary means that the definition is not ABA policy. For reasons that are explained in more detail below, it would be similarly insufficient to add a definition of the term “ordinarily” in the black letter portion of the revised Standards. We reiterate below the key issues of concern to SCLAID and its Indigent Defense Advisory Group. We have raised most of these concerns in prior comments or discussions at Council meetings, and thought that appropriate changes had been agreed upon. These are core issues for SCLAID given its indigent defense policy work and focus on systemic improvements. We urge CJS to withdraw HOD Resolution with Report 110B so that we can work in a cooperative manner with CJS and other interested entities to address concerns that have been expressed. If the Resolution proceeds at this time without amendments that fully respond to these concerns, we will actively oppose and speak strongly in opposition to the Resolution when it is considered by the House of Delegates. 211
Request to Criminal Justice Section to Withdraw Resolution 110B
July 18, 2014
Page 2
1.
The proposed revised Standards substantially weaken the obligations of defense attorneys, to the detriment of clients SCLAID has previously commented on several occasions on drafts of the proposed Standards, with a particular focus on the defense function Standards. We now reiterate our concerns: Defense Duty to Investigate and Engage Investigators (Standard 4‐4.1) SCLAID continues to oppose the proposed revisions to current Standard 4‐4.1 regarding investigations by defense counsel. SCLAID believes that the current standard should not be changed. To the extent there are sometimes reasons to do less than a thorough investigation of a criminal case, SCLAID urges that the subject be covered in commentary to the Standard, not included in the black letter rule. As currently drafted, proposed revised Standard 4‐4.1 provides excuses for defense lawyers to fail to investigate cases: New subsection (b) states that the “duty to investigate is not necessarily terminated” by the strength of the prosecution’s case, a client’s admissions, etc. And the new subsection (c) states the following: “Although investigation will vary depending on the circumstances, defense counsel’s investigation of the merits of the criminal charges should ordinarily include efforts to secure relevant information in the possession of the prosecution, law enforcement authorities, and others, as well as independent investigation.” As noted below, the qualifying word “necessarily” [para. (b)] was not deleted from this Standard as discussed at the Council meeting on April 12, 2014 in connection with the earlier comments submitted by SCLAID. Similar qualifying language is contained in the second sentence of paragraph (c) [“Although investigation will vary depending on the circumstances, …”]. It was our understanding based on our participation in the Section’s meeting on April 12, 2014 that such qualifiers were being removed from the proposed revised Standards in general, but it is especially important to do so in this particular Standard. As we pointed out in our earlier comments, inadequate investigations are a principal cause of reversals of criminal convictions due to ineffective assistance of counsel. The inclusion of qualifying language diminishes the importance of investigations and undermines meaningful “adversarial testing’ of the prosecution’s case as discussed and emphasized by SCOTUS in Cronic v. United States. According to the Scope and Function section of the Standards [4‐1.1 (b)], “These Standards are intended to provide guidance for the professional conduct and performance of defense counsel. They are not intended to modify a defense attorney’s obligations under applicable rules, statutes or the constitution.” The Standards are aspirational in nature (as reflected by use of the word “should” throughout) and they describe “best practices.” These laudatory objectives are not served by diluting defense counsel’s duty with equivocation. To the extent that circumstances may vary from case to case, this should be dealt with in the Commentary, not in the black letter standard. SCLAID believes that paragraphs b and c of the standard should read as follows: Standard 4‐4.1 Duty to Investigate and Engage Investigators 212
Request to Criminal Justice Section to Withdraw Resolution 110B
July 18, 2014
Page 3
(b) The duty to investigate is not necessarily terminated by factors such as the apparent force of the prosecution’s evidence, a client’s alleged admissions to others of facts suggesting guilt, a client’s expressed desire to plead guilty or that there should be no investigation, or statements to defense counsel supporting guilt. (c) Defense counsel’s investigative efforts should commence promptly and should explore appropriate avenues that reasonably might lead to information relevant to the merits of the matter, consequences of the criminal proceedings, and potential dispositions and penalties. Although investigation will vary depending on the circumstances, Defense counsel’s investigation of the merits of the criminal charges should ordinarily include efforts to secure relevant information in the possession of the prosecution, law enforcement authorities, and others, as well as independent investigation. Counsel’s investigation should also include evaluation of the prosecution’s evidence (including possible re‐testing or re‐evaluation of physical, forensic, and expert evidence) and consideration of inconsistencies, potential avenues of impeachment of prosecution witnesses, and other possible suspects and alternative theories that the evidence may raise. Opposing Waivers of Rights in Disposition Agreements (Standard 4‐6.4) SCLAID reiterates concerns that it has previously expressed regarding changes in this proposed revised Standard. We urge that it be amended to omit use of the word “ordinarily,” and to specify that client consultation is necessary to support any waiver of rights. SCLAID believes that paragraph b should read as follows: Standard 4‐6.4 Opposing Waivers of Rights in Disposition Agreements (b) In addition to claims addressed in (a), defense counsel should ordinarily not agree to waivers of any other important defense rights such as the right to appeal (including sentencing appeals), to receive Brady discovery, or to contest the conviction or sentence in collateral proceedings unless after consultation with the client is is agreed that the risk of losing the negotiated disposition outweighs other considerations.. In negotiations, counsel should request the prosecution to provide specific, individualized reasons for their inclusion of such waivers. Counsel should also consult with the client about whether to object to such waivers in court. 2. Pervasive use of the term “ordinarily” throughout the proposed revised Standards substantially weakens this important ABA touchstone for courts, prosecutors and defense counsel The term “ordinarily” appears in the proposed revised Standards 51 times! In contrast, the current ABA Criminal Justice Standards use the term five times; twice in the prosecution function standards, and three times in the defense function standards. Pervasive use of the term “ordinarily” changes the entire tenor of this document. These Standards, as is true of any ABA aspirational standards, use the hortatory “should” throughout the document, and thus already adequately convey that they simply provide guidance in most circumstances. The introduction of the “should…ordinarily” pair transforms these standards into mere suggestions, not strong aspirational 213
Request to Criminal Justice Section to Withdraw Resolution 110B
July 18, 2014
Page 4
guidance of best practices. The proposed addition of a definition of “ordinarily” does not solve this significant problem. Furthermore, none of the commentary to the proposed revised standards has yet been written, nor is it available for review by the House of Delegates. Thus, we cannot know how use of various qualifiers in the proposed Standards will be explained or otherwise dealt with in commentary to individual Standards. Courts and litigants frequently cite to the ABA Criminal Justice Standards. If they do so, they will cite to and quote from the black letter standard that is relevant to the analysis of the issue at hand. If that standard includes the word “ordinarily,” it will be given its customary meaning. A court or advocate will not also quote the (CJS‐proposed) definition of “ordinarily,” which appears in a separate part of the lengthy document (whether that definition appears in commentary or in black letter). The writer of an opinion or brief may not even be aware that the term is specially defined for this document. Thus, even with addition of a definition, the use of “ordinarily” in the Standard will control, and will become the new, weaker, basis for analysis. The comparative chart below sets forth 21 instances of the use of the term “ordinarily” that we find to be most troubling. This chart demonstrates the significance of the changes proposed, and why SCLAID cannot agree to the proposed changes. In many instances, the proposed revised Standards’ use of the qualifying word “ordinarily” either dilutes the aspirational nature of the Standard and the “best practice” it represents and encourages, or renders it meaningless. In other instances, the proposed new Standards are contrary to the Model Rules of Professional Conduct, as well as established law and procedure. In yet other instances, the proposed revised Standard is unnecessary or redundant due to the use of other qualifying words such as “unless” or “except”. While all of the following examples are offensive in one way or another, perhaps the most egregious and least defensible usage of the word occurs in Standards 3‐1.7(d) and (i); 3‐5.4; 3‐6.2 and corresponding 4‐7.2; 4‐3.8; 4‐4.1(c) and 4.3(c); and 4‐6.3. As but one example, we think that the House of Delegates would find it astonishing that the proposed revised Standards call for a lawyer to “ordinarily” advise his/her client to comply with the law! See proposed revised Standard 4‐3.8. Side by side comparison of new and old language in selected CJS Standards Current 3rd Edition Standard 3‐1.3 Conflicts of Interest (d) A prosecutor who has formerly represented a client in a matter in private practice should not thereafter use information obtained from that representation to the disadvantage of the former client unless the rules of attorney‐client confidentiality do not apply or the information has become generally known. Standard 3‐1.7 Conflicts of Interest (h) A prosecutor should not recommend the services of particular defense counsel to accused persons or witnesses unless requested by the accused person or witness to make such a Proposed 4th Edition Standard 3‐1.7 Conflicts of Interest (d) The prosecutor should ordinarily not be involved in the prosecution of a former client, and a prosecutor who has formerly represented a client should not use information obtained from that representation to the disadvantage of the former client. Standard 3‐1.7 Conflicts of Interest (i) The prosecutor ordinarily should not recommend the services of particular defense counsel to accused persons or witnesses in cases 214
Request to Criminal Justice Section to Withdraw Resolution 110B
July 18, 2014
Page 5
Current 3rd Edition recommendation, and should not make a referral that is likely to create a conflict of interest. Nor should a prosecutor comment upon the reputation or abilities of defense counsel to an accused person or witness who is seeking or may seek such counsel's services unless requested by such person. Proposed 4th Edition being handled by the prosecutor’s office. If requested to make such a recommendation, the prosecutor should consider instead referring the person generally to the public defender, or to a panel of available criminal defense attorneys, or to the court. In the rare case where a specific recommendation is made by the prosecutor, the recommendation should be to an independent and competent attorney, and the prosecutor should not make a referral that embodies, creates or is likely to create a conflict of interest. A prosecutor should not comment negatively upon the reputation or abilities of a defense counsel to an accused person or witness who is seeking counsel in a case being handled by the prosecutor’s office. No corresponding standard [New] Standard 3‐5.2 The Decision to Recommend Release or Seek Detention (b) The prosecutor’s decision to recommend pretrial release or seek detention should ordinarily be based on the facts and circumstances of the defendant and the offense, rather than made categorically. The prosecutor should consider information relevant to these decisions from all sources, including the defendant. Standard 3‐3.11 Disclosure of Evidence by the Standard 3‐5.4 Identification and Disclosure of Prosecutor Information and Evidence (a) A prosecutor should not intentionally fail to (e) A prosecutor should timely respond to legally make timely disclosure to the defense, at the proper discovery requests, and make a diligent earliest feasible opportunity, of the existence of all evidence or information which tends to negate effort to comply with legally proper disclosure obligations, unless otherwise authorized by a court. the guilt of the accused or mitigate the offense The prosecutor should ordinarily provide specific charged or which would tend to reduce the responses to defense requests for specific punishment of the accused. information rather than boilerplate or a general (b) A prosecutor should not fail to make a acknowledgement of discovery obligations. reasonably diligent effort to comply with a legally proper discovery request. (c) A prosecutor should not intentionally avoid pursuit of evidence because he or she believes it will damage the prosecution's case or aid the accused. The new standard combines subparagraphs of the prior standard. Above is the full standard from the 3rd Edition. 215
Request to Criminal Justice Section to Withdraw Resolution 110B
July 18, 2014
Page 6
Current 3rd Edition No corresponding standard Proposed 4th Edition [New] Standard 3‐5.5 Preservation of Information and Evidence (c) Materials should ordinarily be preserved at least until a criminal case is finally disposed of or is final on appeal and the time for further appeal has expired. In felony cases, if post‐conviction collateral litigation is reasonably anticipated, such materials should ordinarily be preserved until that litigation is concluded or time‐limits have expired. In death penalty cases, such information should be preserved until the penalty is carried out or is precluded. Standard 3‐5.6 Conduct of Negotiated Disposition Discussions (a) The prosecutor should ordinarily be open, at every stage of a criminal matter, to discussions with defense counsel concerning disposition of charges by guilty plea or other negotiated disposition. Standard 3‐4.1 Availability for Plea Discussions (a) The prosecutor should have and make known a general policy or willingness to consult with defense counsel concerning disposition of charges by plea. Standard 3‐4.2 Fulfillment of Plea Discussions Standard 3‐5.7 Establishing and Fulfilling Conditions of Negotiated Dispositions (a) A prosecutor should not make any promise or commitment assuring a defendant or defense (e) If the prosecutor believes that a defendant has counsel that a court will impose a specific breached an agreement that has been accepted by sentence or a suspension of sentence; a prosecutor may properly advise the defense what the court, the prosecutor should notify the defense regarding the prosecutor’s belief and any intended position will be taken concerning disposition. adverse action. If the defense presents a good‐
(b) A prosecutor should not imply a greater faith disagreement and the parties cannot quickly power to influence the disposition of a case than resolve it, the prosecutor ordinarily should not act is actually possessed. before judicial resolution. (c) A prosecutor should not fail to comply with a plea agreement, unless a defendant fails to comply with a plea agreement or other extenuating circumstances are present. The new standard combines and rewrites subparagraphs of the prior standard. Above is the full standard from the 3rd Edition. Standard 3‐6.2 Civility With Courts, Opposing Standard 3‐5.2 Courtroom Professionalism Counsel, and Others (a) As an officer of the court, the prosecutor should support the authority of the court and the dignity of the trial courtroom by strict adherence (c) The prosecutor ordinarily should comply to codes of professionalism and by manifesting a promptly and civilly with a court’s orders. If the professional attitude toward the judge, opposing prosecutor considers an order to be significantly 216
Request to Criminal Justice Section to Withdraw Resolution 110B
July 18, 2014
Page 7
Current 3rd Edition Proposed 4th Edition counsel, witnesses, defendants, jurors, and others erroneous or prejudicial, the prosecutor should in the courtroom. ensure that the record adequately reflects the events. The prosecutor has a right to make (b) When court is in session, the prosecutor respectful objections and reasonable requests for should address the court, not opposing counsel, reconsideration, and to seek other relief as the law on all matters relating to the case. permits. If a judge prohibits making an adequate objection, proffer, or record, the prosecutor may (c) A prosecutor should comply promptly with take other lawful steps to protect the public all orders and directives of the court, but the interest. prosecutor has a duty to have the record reflect adverse rulings or judicial conduct which the prosecutor considers prejudicial. The prosecutor has a right to make respectful requests for reconsideration of adverse rulings. (d) Prosecutors should cooperate with courts and the organized bar in developing codes of professionalism for each jurisdiction. The new standard combines subparagraphs of the prior standard. Above is the full standard from the 3rd Edition. Standard 3‐5.3 Selection of Jurors Standard 3‐6.3 Selection of Jurors (a) The prosecutor should prepare himself or (c) In cases in which the prosecutor conducts a herself prior to trial to discharge effectively the pretrial investigation of the background of potential prosecution function in the selection of the jury jurors, the investigative methods used should not and the exercise of challenges for cause and harass, intimidate, or unduly embarrass or invade peremptory challenges. the privacy of potential jurors. Absent special (b) In those cases where it appears necessary to circumstances, such investigation should be conduct a pretrial investigation of the background restricted to review of records and sources of of jurors, investigatory methods of the prosecutor information already in existence and to which should neither harass nor unduly embarrass access is lawfully allowed. If the prosecutor uses potential jurors or invade their privacy and, record searches that are unavailable to the whenever possible, should be restricted to an defense, such as criminal record databases, the investigation of records and sources of prosecutor should ordinarily share the results with information already in existence. defense (c) The opportunity to question jurors personally should be used solely to obtain information for the intelligent exercise of challenges. A prosecutor should not intentionally use the voir dire to present factual matter which the prosecutor knows will not be admissible at trial or to argue the prosecution's case to the jury.
The new standard substantially rewrites subparagraphs of the prior standard. Above is the 217
Request to Criminal Justice Section to Withdraw Resolution 110B
July 18, 2014
Page 8
Current 3rd Edition full standard from the 3rd Edition. Standard 4‐ 3.1 Establishment of Relationship Proposed 4th Edition (a) Defense counsel should seek to establish a relationship of trust and confidence with the accused and should discuss the objectives of the representation and whether defense counsel will continue to represent the accused if there is an appeal. Defense counsel should explain the necessity of full disclosure of all facts known to the client for an effective defense, and defense counsel should explain the extent to which counsel's obligation of confidentiality makes privileged the accused's disclosures. (b) To ensure the privacy essential for confidential communication between defense counsel and client, adequate facilities should be available for private discussions between counsel and accused in jails, prisons, courthouses, and other places where accused persons must confer with counsel. Standard 4‐3.1 Establishing and Maintaining An Effective Client Relationship (a) Immediately upon appointment or retention, defense counsel should work to establish a relationship of trust and confidence with each client. Defense counsel should explain, at an appropriate time, the necessity for frank and honest discussion of all facts known to the client in order to provide an effective defense. Defense counsel should explain that the attorney‐client privilege ordinarily protects the confidentiality of communications with counsel, and what the client can do to help preserve confidentiality. (c) Personnel of jails, prisons, and custodial institutions should be prohibited by law or administrative regulations from examining or otherwise interfering with any communication or correspondence between client and defense counsel relating to legal action arising out of charges or incarceration. The new standard substantially rewrites and combines subparagraphs of the prior standard. Above is the full standard from the 3rd Edition. Standard 4‐ 3.7 Advice and Service on Anticipated Unlawful Conduct (a) It is defense counsel's duty to advise a client to comply with the law, but counsel may advise concerning the meaning, scope, and validity of a law. Standard 4‐3.8 Anticipated Unlawful Conduct If defense counsel anticipates that a client may engage in unlawful conduct, defense counsel should advise the client concerning the meaning, scope and validity of the law and the possible consequences of violating the law, and should ordinarily advise the client to comply with the law. Standard 4‐4.1 Duty to Investigate and Engage Investigators (a) Defense counsel should conduct a prompt investigation of the circumstances of the case and (c) Defense counsel’s investigative efforts should explore all avenues leading to facts relevant to commence promptly and should explore the merits of the case and the penalty in the appropriate avenues that reasonably might lead to event of conviction. The investigation should Standard 4‐ 4.1 Duty to Investigate 218
Request to Criminal Justice Section to Withdraw Resolution 110B
July 18, 2014
Page 9
Current 3rd Edition include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused's admissions or statements to defense counsel of facts constituting guilt or the accused's stated desire to plead guilty. Proposed 4th Edition information relevant to the merits of the matter, consequences of the criminal proceedings, and potential dispositions and penalties. Although investigation will vary depending on the circumstances, defense counsel’s investigation of the merits of the criminal charges should ordinarily include efforts to secure relevant information in the possession of the prosecution, law enforcement (b) Defense counsel should not seek to acquire authorities, and others, as well as independent possession of physical evidence personally or investigation. Counsel’s investigation should also through use of an investigator where defense include evaluation of the prosecution’s evidence counsel's sole purpose is to obstruct access to (including possible re‐testing or re‐evaluation of such evidence. physical, forensic, and expert evidence) and The new standard combines subparagraphs of the consideration of inconsistencies, potential avenues of impeachment of prosecution witnesses, and prior standard. Above is the full standard from rd
other possible suspects and alternative theories the 3 Edition. that the evidence may raise. No comparable section within current Standard Standard 4‐4.3 Relationship With Witnesses Standard 4‐ 4.3 Relations With Prospective (c) Defense counsel or counsel’s agents should Witnesses (a) Defense counsel, in representing an accused, ordinarily interview witnesses, including seeking to interview the victim or victims, and should not act should not use means that have no substantial to intimidate or unduly influence any witness. purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person. The new standard rewrites subparagraphs of the prior standard. Standard 4‐4.5 Compliance With Discovery Procedures Defense counsel should make a reasonably Defense counsel should timely respond to legally diligent effort to comply with a legally proper proper discovery requests, and make a diligent discovery request. effort to comply with legally proper disclosure obligations, unless otherwise authorized by a court. Defense counsel should ordinarily provide specific responses to discovery requests for specific information rather than boilerplate or a general acknowledgement of discovery obligations. Standard 4‐ 5.1 Advising the Accused Standard 4‐5.1 Advising the Client (c) Defense counsel should caution the client to (g) Defense counsel should ordinarily advise the avoid communication about the case with witnesses, except with the approval of counsel, to client to avoid communication about the case with anyone, including victims or other possible avoid any contact with jurors or prospective witnesses, persons in custody, family, friends, and jurors, and to avoid either the reality or the Standard 4‐ 4.5 Compliance With Discovery Procedure 219
Request to Criminal Justice Section to Withdraw Resolution 110B
July 18, 2014
Page 10
Current 3rd Edition appearance of any other improper activity. No comparable standard No comparable standard Proposed 4th Edition any government personnel, except with defense counsel’s approval, although where the client is a minor consultation with parents or guardians may be useful. Counsel should advise the client to avoid any contact with jurors or persons called for jury duty; and to avoid either the reality or the appearance of any other improper activity. [New] Standard 4‐6.3 Plea Agreements and Other Negotiated Dispositions (c) Defense counsel should fully prepare the client for any hearing before a court related to entering or accepting a negotiated disposition, and for any pre‐disposition or post‐disposition interview conducted by the prosecution or by court agents such as presentence investigators or probation officers. Counsel should ordinarily be present at any such interview [to] act to protect the client’s interests there. [New] Standard 4‐6.4 Opposing Waivers of Rights in Disposition Agreements (a) Defense counsel should not accept disposition agreement waivers of post‐conviction claims addressing ineffective assistance of counsel, prosecutorial misconduct, or destruction of evidence, unless such claims are based on past instances of such conduct that are specifically identified in the agreement or in the transcript of proceedings that address the agreement. If a proposed disposition agreement contains such a waiver regarding ineffective assistance of counsel, defense counsel should ensure that the defendant has consulted with independent counsel regarding the waiver before agreeing to the disposition. (b) In addition to claims addressed in (a), defense counsel should ordinarily not agree to waivers of any other important defense rights such as the right to appeal (including sentencing appeals), to receive Brady discovery, or to contest the conviction or sentence in collateral proceedings. In negotiations, counsel should request the prosecution to provide specific, individualized reasons for their inclusion. Counsel should also consult with the client about whether to object to such waivers in court. 220
Request to Criminal Justice Section to Withdraw Resolution 110B
July 18, 2014
Page 11
Current 3rd Edition Standard 4‐ 7.1 Courtroom Professionalism Proposed 4th Edition Standard 4‐7.2 Civility with Courts, Prosecutors, and Others (d) Defense counsel should comply promptly with all orders and directives of the court, but (f) Defense counsel should ordinarily comply defense counsel has a duty to have the record promptly and civilly with a court’s orders. If reflect adverse rulings or judicial conduct which counsel considers prejudicial to his or her client's defense counsel considers an order to be significantly erroneous or prejudicial, counsel legitimate interests. Defense counsel has a right to make respectful requests for reconsiderations should ensure that the record adequately reflects the events. Defense counsel has a right to make of adverse rulings. respectful objections and reasonable requests for reconsideration, and to seek other relief as the law permits. If a judge prohibits making an adequate objection, proffer, or record, counsel may take other lawful steps to protect the client’s rights. Standard 4‐ 8.4 Conduct of Appeal Standard 4‐9.3 Conduct of Appeal (a) Appellate counsel should be diligent in (d) Appellate counsel should be aware of perfecting appeals and expediting their prompt applicable rules relating to securing all necessary submission to appellate courts. record documents, transcripts, and exhibits, and (b) Appellate counsel should be accurate in ensure that all such items necessary to effectively referring to the record and the authorities upon prosecute the appeal are properly and timely which counsel relies in the presentation to the ordered. Before filing the brief, appellate counsel court of briefs and oral argument. should ordinarily examine the docket sheet, all transcripts, trial exhibits and record documents, not (c) Appellate counsel should not intentionally refer to or argue on the basis of facts outside the just those designated by another lawyer or the record on appeal, unless such facts are matters of client. Counsel should consider whether, and how appropriately, to augment the record with any common public knowledge based on ordinary other matters, documents or evidence relevant to human experience or matters of which the court effective prosecution of the client’s appeal. may take judicial notice. Appellate counsel should seek by appropriate The new standard substantially rewrites and motion, filed in either the trial or the appellate combines subparagraphs of the prior standard. court, to make available for the appeal any rd
Above is the full standard from the 3 Edition. necessary, relevant extra‐record matters. Standard 4‐ 9.6 Challenges to the Effectiveness of Standard 4‐ 8.6 Challenges to the Effectiveness Counsel of Counsel (d) Defense counsel whose conduct of a criminal (c) Defense counsel whose conduct of a criminal case is drawn into question is entitled to testify case is drawn into question is permitted to testify concerning the matters charged and is not concerning the matters at issue, and is not precluded from disclosing the truth concerning precluded from disclosing the truth concerning the the accusation to the extent defense counsel matters raised by his former client, even though reasonably believes necessary, even though this this involves revealing matters which were given in involves revealing matters which were given in confidence. Former counsel must act consistently confidence. with applicable confidentiality rules, and ordinarily may not reveal confidences unless necessary for the purposes of the proceeding and under judicial supervision. 221
Request to Criminal Justice Section to Withdraw Resolution 110B
July 18, 2014
Page 12
3. There is a significant risk that House of Delegates members may not appreciate the tectonic shift that these proposed revised Standards represent The proposed revised 4th Edition of the Criminal Justice Standards consists of 147 pages of textual standards, followed by a two‐page report. At the end of the report a lengthy (but not “clickable”) web link is provided as the only method by which a reader can obtain a comparison of the current Standards and the proposed new versions. No redlined version is provided to the delegates. While the report notes that every Standard has been revised from the previous edition, it seems unlikely that the average member of the House of Delegates will be aware, absent a redlined version, that this is an extremely substantial revision. Rather, House members are more likely to think that this is a mere technical updating in response to changes in law and jurisprudence. But this proposed new edition is much more than that. It is a wholesale re‐writing from the ground up. It takes an entirely different approach to the expectations of prosecutors and defenders within the criminal justice system. It does not merely conform the past, well‐reasoned Standards to changes in the law. Rather, it articulates a wholly new vision of the system and the roles of its participants. 4. The proposed revised Standards diminish lawyers’ ethical obligations and cause substantial confusion for practitioners and disciplinary authorities The proposed revised Standards also introduce considerable confusion and ambiguity about a lawyer’s ethical obligations on the one hand, and the aspirational guidance on the other hand offered by ABA Standards such as these. State ethical rules, based to a substantial degree upon the ABA Model Rules of Professional Conduct, set forth mandatory ethical obligations for lawyers. Lawyers who engage in conduct that is inconsistent with those obligations are subject to disciplinary proceedings and sanctions. On the other hand, ABA Standards set forth aspirational guidance for lawyers and other actors in the justice system. These proposed revised Criminal Justice Standards acknowledge this critical difference by stating with respect to prosecutors: These Standards are intended to provide guidance for the professional conduct and performance of prosecutors. They are not intended to modify a prosecutor's obligations under applicable rules, statutes, or the constitution. They are aspirational or describe "best practices," and are not intended to serve as the basis for the imposition of professional discipline, to create substantive or procedural rights for accused or convicted persons, to create a standard of care for civil liability , or to serve as a predicate for a motion to suppress evidence or dismiss a charge. (Standard 3‐1.1(b)) And with respect to defense counsel: These Standards are intended to provide guidance for the professional conduct and performance of defense counsel. They are not intended to modify a defense attorney's obligations under applicable rules, statutes or the constitution. They are aspirational or describe "best practices," and are not intended to serve as the basis for the imposition of professional discipline, to create substantive or procedural rights for clients, or to create a standard of care for civil liability. They may be relevant in judicial evaluation of constitutional claims regarding the right to counsel. (Standard 4‐1.1(b)) 222
Request to Criminal Justice Section to Withdraw Resolution 110B
July 18, 2014
Page 13
The text of the proposed, revised Standards, however, in many instances uses the same language or discusses the same concepts and obligations as are set forth in the Model Rules of Professional Conduct and the mandatory ethics rules of jurisdictions in which lawyers practice. In only one instance do the Standards actually reference an ABA Model Rule of Professional Conduct upon which the matter at issue is based. In all other instances, the proposed revised Standards set forth a concept that is founded in the ethics rules without even a footnote referencing any ethical foundation. So the lawyer who is guided by a Standard addressing particular behavior is told by the Standard that this is merely an aspirational requirement, while a mandatory ethics rule may well address the very same conduct, and counsel a different approach. There is thus grave potential for confusion between the guidance of the Standards and the mandatory nature of the various ethical Rules ‐ ‐ whether the ABA’s own Model Rules, or those variations adopted in many jurisdictions. For example:  New Prosecutor Standard 3‐8.3 “Responses to New or Newly‐Discovered Evidence or Law” specifically references Model Rule 3.8(g) and (h) and directs that the prosecutor comply with the rule.  In contrast, proposed 4th Edition Prosecutor Standard 3‐1.10 “Relationship with the Media” (a rewrite of 3rd Edition Standard 3‐1.4 “Public Statements”) makes no reference to Model Rules 3.6 or 3.8(f) that directly address the same subject. Rather, the Standard combines the mandatory language in these Rules with other guidance such that it is unclear how the Rules and the Standards interrelate.  Proposed 4th Edition Defense Standard 4‐1.11 “Advisory Groups and Communications for Guidance on Issues of Professional Conduct” makes no reference to Model Rule 1.6(b)(4) or Comment [4]. Conclusion SCLAID believes that it is far better to write the standards in a more categorical manner (which is the way the first three editions of these standards were written and have endured since the late 1960’s) and leave to the commentary references to rare instances where there may be justification to depart from the recommended standard. If Standards are presented with many qualifiers, as is done in this proposed revised version, a lawyer who wants to avoid what is recommended can always point to the word “ordinarily” as a basis for departure. The extensive use of qualifying language in a set of ABA standards is not only unprecedented, but in SCLAID’s view, the repeated use of this qualifying word is poor drafting and bad policy. This is particularly worrisome given the Criminal Justice Standards are revised so infrequently. For all of these reasons, we believe it is imperative that the Standards articulate strong and timeless principles. As we have demonstrated over the last several years through our comments to the proposed Standards, and our active participation in your meetings about the development of these Standards, SCLAID is willing to continue to assist with developing consensus modifications of these extremely important ABA Standards. If we are not able to address the concerns raised in this memo, however, consistent with our mission and policies, we will need to actively challenge the Standards. We sincerely hope this will not be necessary. cc: Neal Sonnett 223
Request to Criminal Justice Section to Withdraw Resolution 110B
July 18, 2014
Page 14
Stephen Saltzburg Justine Luongo Paula Frederick Hilarie Bass 224
CHAIR: Mathias H. Heck, Jr.
CHAIRS-ELECT: James Felman, Cynthia Orr
FIRST VICE-CHAIR: Bernice Donald
DELEGATES: Stephen Saltzburg, Neal Sonnett
AMERICAN BAR ASSOCIATION
Criminal Justice Section
1050 Connecticut Ave., NW, Suite 400
Washington, DC 20036
202/662-1500 (Fax: 202/662-1501)
[email protected]
www.americanbar.org/crimjust
July 24, 2014
Standing Committee on Legal Aid and Indigent Defendants
American Bar Association
321 N. Clark Street, 19th Floor
Chicago, IL 60654-7598
Re:
Withdrawal of Resolution 110B
Dear Ms. Wood:
In light of the concerns and suggestions submitted by the Standing Committee on Legal Aid and Indigent
Defendants, the Criminal Justice Section has decided to withdraw Resolution 110B, the Prosecution and
Defense Function Standards, from consideration before the House of Delegates at the Annual Meeting, and
resubmit it to the House at the MidYear Meeting next February.
Soon after the Annual Meeting, we would like to meet with your designee(s) to fully discuss your concerns
and work cooperatively toward solutions that will satisfy them. We would therefore appreciate it if you
would send us the contact information for those individual(s) you appoint to represent you in this process
and we will contact them to schedule a meeting.
We will need to submit any and all modifications to our Council at our October, 2013 Council meeting, so
time is of the essence. While we have already received written comments and suggestions, we would be
grateful for any additional written submissions so that our in-person meetings can be a productive as
possible.
We are taking this action out of respect for your entity, and because we believe it is important that the final
version of these widely respected and admired Standards have the widest possible support and consensus.
Thank you for your continuing contributions to this important process.
Very Truly Yours,
MATHIAS H. HECK, JR.
225
MEMORANDUM
TO:
Chair and Members, ABA Standing Committee on Legal Aid and Indigent
Defendants (SCLAID)
FROM:
Geoff Burkhart
DATE:
August 9, 2014
RE:
The Missouri Project: A Study of the Missouri Public Defender System and
Attorney Workload Standards
SCLAID has completed the Missouri Project. The report it produced, as well as a national
blueprint for future workload studies, has been published at www.indigentdefense.org. SCLAID
will also print a limited run of hard copies of the report.
SCLAID is currently coordinating a news release to publicize the report. Even before its
completion, however, the project garnered positive press for the ABA, including an article in the
New York Times. The national blueprint that accompanies the report will serve as the basis for
workload studies currently under way in Rhode Island and Tennessee.
226
MEMORANDUM
TO:
Chair and Members, ABA Standing Committee on Legal Aid and Indigent
Defendants (SCLAID)
FROM:
Geoff Burkhart
DATE:
August 9, 2014
RE:
Workload Studies: Rhode Island and Tennessee Projects
Overview
The National Association of Criminal Defense Lawyers (NACDL) received a grant from the
Department of Justice to conduct workload studies and attorney trainings in several jurisdictions.
The Standing Committee on Legal Aid & Indigent Defendants, in turn, received a subgrant from
the NACDL to closely collaborate with NACDL to carry out the workload studies portion of the
grant.
In May, SCLAID hired staff attorney Geoff Burkhart to work with Stephen Hanlon in
implementing the workload studies. Geoff is a former public defender with a master’s degree in
sociology. He will work in the ABA’s Chicago headquarters.
SCLAID, working with the NACDL, has selected Rhode Island and Tennessee as the study sites
and has begun analyzing the public defender systems in those jurisdictions. Because Rhode
Island has a statewide public defender system, that study will encompass the entire state.
Tennessee, however, has a county-based system. Given the impracticality of studying each of
Tennessee’s 95 counties, SCLAID and NACDL have chosen to focus on the three most
populous: Shelby, Davidson, and Knox Counties. These counties are home, respectively, to
Memphis, Nashville, and Knoxville.
Rhode Island Project
The Rhode Island Public Defender (RIPD) has long struggled with excessive caseloads.
However, it has never tracked attorney time. As part of the Rhode Island Project, the RIPD is
implementing permanent time-keeping. Working with SCLAID, the RIPD’s information
technology staff has created an electronic time-keeping system. A small number of RIPD
managers began tracking their time using that system in early July 2014. Once the RIPD and
SCLAID have addressed any flaws in the system, its use will be expanded to every attorney in
the office. This expansion is planned for October 2014.
SCLAID is currently working with RubinBrown, the accounting and consulting firm that
analyzed the data in the Missouri Project, to identify an accounting and consulting firm in either
Rhode Island or Massachusetts to analyze the data collected in Rhode Island.
227
Tennessee Project
Many of Tennessee’s county-based public defender systems have also struggled with excessive
caseloads. The Knox County Public Defender’s Community Law Office (CLO), in particular,
resorted to caseload litigation in 1991 and 2007, though neither effort produced long-term
change. The CLO briefly tracked time in 1999 as part of a caseload study conducted by the
Spangenberg Group, but, until now, has never attempted permanent time-keeping.
Unlike the RIPD, the CLO uses DefenderData, a commercial case management and time-keeping
software. Using that software and the Missouri Project report, the CLO chief public defender
and one other employee began tracking their time in March of 2014. Working with SCLAID, the
CLO refined its time-tracking system and, in July of 2014, all CLO staff began permanent timekeeping using DefenderData.
As in Rhode Island, SCLAID is currently working with RubinBrown to identify an accounting
and consulting firm to analyze the data collected in Tennessee.
228
MEMORANDUM
TO:
Chair and Members, ABA Standing Committee on Legal Aid and Indigent
Defendants (SCLAID)
FROM:
Tori Jo Wible
DATE:
August 9, 2014
RE:
National Commission on Indigent Defense
As we have reported, SCLAID has been part of a multi-entity working group that meets periodically with
senior counsel in the US Attorney General’s Office. The other entities involved include the National
Legal Aid and Defender’s Association (NLADA), the National Association of Criminal Defense Attorneys
(NACDL), the Sixth Amendment Center, the Constitution Project, the ACLU, as well as various
departments within the Department of Justice. One of the topics had been the possible creation of a
National Commission on Indigent Defense. Unfortunately, even within the defender community we
couldn’t reach an agreement as to the efficacy of such a commission. That lack of consensus from the
community led to DOJ permanently tabling the idea. Although the various entities still are optimistic
that a National Indigent Defense Center may someday be funded, the Commission concept will no
longer be pursued as a way to move toward that goal. The working group continues to meet from time
to time to explore other opportunities for national collaborative leadership on indigent defense
improvement.
229
MEMORANDUM
TO:
Chair and Members, ABA Standing Committee on Legal Aid and Indigent
Defendants (SCLAID)
FROM:
Geoff Burkhart
DATE:
August 9, 2014
RE:
Other Indigent Criminal Defense Developments
(1)
The Bureau of Justice Statistics releases its study of indigent defense services.
The Bureau of Justice Statistics released its study of indigent defense services from 2008-2012.
(full report: http://www.bjs.gov/content/pub/pdf/idsus0812.pdf). The report concluded that,
during that period, state spending on indigent defense decreased.
(special report:
http://www.bjs.gov/content/pub/pdf/sgide0812.pdf) Press regarding the study discussed ABA
work on the subject. (http://blogs.wsj.com/law/2014/07/17/states-spend-less-on-legal-defensefor-the-poor/)
(2)
Montana Public Defender secures additional funding to ease excessive caseloads.
Last year in Montana, the Office of the State Public Defender—created less than a decade ago—
exceeded its caseload limits and filed a motion to refuse additional court appointments. (See
http://publicdefender.mt.gov/CaseloadLimits/MarkLee-Motion.pdf). The trial court denied the
Public Defender’s motion in a written order (http://sixthamendment.org/wpcontent/uploads/2014/04/Montana-decision-2013_10_11_15_43_34.pdf), and the Public
Defender appealed. While the appeal was pending, Governor Steve Bullock intervened and
increased funding to the agency by 5% ($625,000). (http://sixthamendment.org/montanacaseload-challenge-results-in-a-significant-increase-in-resources/)
The funding will create
additional attorney and staff positions in an attempt to ease excessive caseloads.
(3)
Idaho creates statewide public defender commission, contemplates workload
standards.
Idaho Governor C.L. Otter signed into law a bill creating a statewide public defender
commission on March 26, 2014. (http://www.legislature.idaho.gov/legislation/2014/H0542.htm)
The new law gives the commission the power to train attorneys, issue performance standards,
and implement uniform data collection. (http://sixthamendment.org/idaho-governor-signspublic-defense-commission-bill-into-law/) Since the commission’s formation, Idahoans have
hotly debated the creation of workload, performance, and funding standards.
(http://www.idahopress.com/news/state/idaho-lawmaker-committee-examines-publicdefense/article_48489a46-1296-11e4-b837-0019bb2963f4.html)
230
(4)
Sixth Amendment Center publishes comprehensive report on indigent defense
services in Delaware.
In February 2014, the Sixth Amendment Center published a 200-page report on the state of
indigent defense in Delaware. (http://sixthamendment.org/delaware-report/) The report uses the
ABA Ten Principles of a Public Defense Delivery System to measure Delaware’s delivery of
indigent defense services and concludes that “[b]oth the primary and conflict indigent defense
systems in Delaware fail the vast majority of the ABA Ten Principles.”
(5)
Michigan Governor appoints members to indigent defense commission.
Last year, Michigan passed legislation aimed at reforming its indigent defense services.
(http://sixthamendment.org/michigan-passes-public-defense-reform-legislation/)
Michigan
Governor Rick Snyder has now appointed members to the newly created Indigent Defense
Commission.
(http://www.michigan.gov/snyder/0,4668,7-277-57577_57657_59871-331362-,00.html) The Commission will collect data, establish standards, and recommend improvements
to
Michigan’s
indigent
defense
systems.
(http://sbmblog.typepad.com/sbmblog/2014/06/governor-rick-snyder-appointed-15-to-the-indigent-defense-commission.html)
(6)
National Survey of Indigent Defense Systems to be distributed in coming months.
The Bureau of Justice Statistics and the National Opinion Research Center will distribute a
lengthy nationwide survey to indigent defense providers in the next few months.
(http://www.norc.org/Research/Projects/Pages/2012-national-survey-of-indigent-defensesystems.aspx) The survey will provide an unprecedented in-depth look at the budgets, caseloads,
and standards for public defender offices, contract attorneys, and assigned counsel.
231
MEMORANDUM
TO:
Chair and Members, ABA Standing Committee on Legal Aid and Indigent
Defendants (SCLAID)
FROM:
Geoff Burkhart
DATE:
August 9, 2014
RE:
Proposed Projects
(1)
Case Studies of Exemplary Public Defender Systems
The problems that plague indigent criminal defense systems—including underfunding,
understaffing, and insufficient training—are well-known and well-documented. Resolution of
these problems will require continued documentation and advocacy.
In addition, public defender systems need models of what indigent criminal defense systems can
and should look like. SCLAID staff proposes conducting qualitative case studies of three
exemplary public defender systems. The studies will consist of ethnographic observation,
interviews, and secondary research, including document analysis. The resulting report will
provide a portrait of these systems and suggest techniques and practices that public defense
systems can either adopt or use to illustrate the need for additional funding and staffing. One of
the aims of this study will be to show the ABA Ten Principles of a Public Defense Delivery
System and the ABA Eight Guidelines of Public Defense Related to Excessive Workloads in
practice.
(2)
Survey of Data Collection Methods
For decades, researchers comparing public defender systems have repeatedly run into a problem:
our patchwork system of indigent criminal defense does not lend itself to easy comparison of
delivery systems. While roughly half of the states have instituted some level of statewide public
defender oversight, the remaining states have relied on county-based systems, contract models,
employment of assigned counsel, or a combination thereof. Research is further complicated by
inconsistent and incomplete data-tracking. Ultimately, it is remarkably difficult to gain an
accurate picture of indigent criminal defense services in the United States.
SCLAID staff proposes a brief survey of indigent defense delivery systems to determine (1) what
information these systems track (e.g., new cases per year, disposed cases per year, average time
from arrest to sentencing, attorney time in fractions of an hour); and (2) how they track that
information (e.g., manually, via software developed in-house, via commercial software). This
survey will not only provide a picture of public defender data collection, but also possibly serve
as the basis for developing ABA standards for public defender system data collection. Further,
this survey will complement the Bureau of Justice Statistics’ National Survey of Indigent
232
Defense Systems, which will be administered later this year. A proposed timeline for the
SCLAID data collection survey is attached.
(3)
Other Projects
In other developments, the Indigent Defense Advisory Group (IDAG) has been working on
several policy pieces that have temporarily stalled. One is a resolution regarding a Colloquy on
Waiver of Counsel. Bob Boruchowitz and Adele Bernhard have been working on the
Resolution, Report and sample colloquy, but had to table it to work on other projects.
Another policy piece was to draft a resolution and report in support of the Department of
Justice’s authority to sue to enforce the Sixth Amendment Right to Counsel. Given the political
realities in Washington right now, it is unlikely that any legislation will be offered or go forward.
Therefore, this project has also been tabled.
IDAG has been working with SCLAID on the issues with the proposed Criminal Justice
Standards. SCLAID and IDAG member Dan Goyette’s assistance and insight was invaluable
during the process.
233
Timeline
SCLAID Data Collection Methods Survey
August 2014
Present project to SCLAID at Annual Meeting
September 2014
Draft short structured survey instrument using input from members of
SCLAID’s Indigent Defense Advisory Group (IDAG)
October 2014
Refine survey instrument using input from members of IDAG
November 2014
Pretest survey instrument with select public defender systems
December 2014
Finalize survey instrument
January 2015
Distribute survey instrument to indigent defense delivery systems via
email and U.S. mail
February 2015
Collate data from completed surveys
March 2015
Follow up on incomplete surveys
April 2015
Follow up on incomplete surveys
May 2015
Collate and analyze data from completed surveys
June 2015
Collate and analyze data from completed surveys and begin drafting report
July 2015
Report on findings
234
MEMORANDUM
TO:
Chair, Members, and Staff, ABA Standing Committee on Legal Aid and
Indigent Defendants (SCLAID)
FROM:
Tori Jo Wible
DATE:
August 9, 2014
RE:
2015 Summit on Indigent Defense Improvement
SCLAID has conducted two conference calls regarding the Summit and made significant
progress in planning the event. The 10th Annual Summit on Indigent Defense Improvement will
be held in Houston, Texas, on Saturday, February 7, 2015, in conjunction with the ABA Midyear
Meeting. We have tentatively planned to collaborate with Thurgood Marshall School of Law at
Texas Southern University. Each February, the law school hosts the Hon. Craig Washington and
Sen. Rodney Ellis Criminal Law Seminar, a two-day event devoted to criminal law and policy.
The law school proposed combining the Summit and the Seminar to mutual benefit. Under this
proposal, the law school will host a day devoted to substantive criminal law developments on
Friday, February 6, 2015. SCLAID will then host a day devoted to criminal law policy
developments via the Summit on Saturday, February 7, 2015. SCLAID is currently drafting an
agenda, arranging local and national speakers, and working with the law school to coordinate
registration, meals, and transportation. Potential topics include workload studies, Texas’s clientchoice experiment, criminal law and metrics, and implicit bias in the courtroom.
235