Emily Huckabee wins Alabama Bar Assoc. poster contest
Clarke County Democrat
May 28, 2009
Emily Huckabee, a student at Clarke Prep School, won the Alabama State Bar Association poster contest. Emily won a U.S. Savings Bond, and was presented with a medal for her work. The winning poster will be printed in the July edition of the The Alabama Lawyer. That publication is mailed to 16,000 attorneys in Alabama. She is the daughter of Temple and Mary Ellen Huckabee of Coffeeville.
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Alabama Law Foundation gets national award
Cosby Woodruff, Montgomery Advertiser
May 28, 2009
The Alabama Law Foundation received the Grassroots Advocacy Award from the American Bar Association.
It was for the group's work with the association's governmental affairs staff to focus interest on lawyers' trust accounts insured by the FDIC.
Tracy Daniel, the foundation's executive director, accepted the award. "It was a great honor, made even more special because it was presented by American Bar Association president and Alabama State Bar member Tommy Wells during ABA Day in Washington, D.C.," he said in a prepared statement.
"The award represents a lot of hard work by a lot of people committed to IOLTA (Interest on Lawyers Trust Accounts) and access to justice for all of Alabama's citizens."
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Davis to host `Help for Homeowners'
The Birmingham News
May 28, 2009
U.S. Rep. Artur Davis will host "Help for Homeowners," a meeting on foreclosure prevention and related strategies, tonight at 5:30 p.m. in the Birmingham City Council chambers. A panel of experts from the U.S. Department of Housing and Urban Development, Regions Financial Corp., Neighborhood Housing Services and the Alabama Bar Association, will offer advice.
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Justice Breyer: Judges Need Voice in the Cabinet
Jordan Weissmann, The National Law Journal
May 22, 2009
Should judges have a representative in the Cabinet? Supreme Court Justice Stephen Breyer seems to think so.
The justice launched into an extended monologue on the idea during at panel discussion Tuesday at the Georgetown University Law Center. The May 20 event capped off a conference on judicial independence organized by retired Justice Sandra Day O'Connor. O'Connor joined Breyer on the panel, along with Alexander Aleinikoff, dean of Georgetown Law, and Meryl Chertoff, director of O'Connor's Project on the State of the Judiciary.
The talk of a Cabinet post was prompted by an audience member who asked the panel about judicial pay raises -- or the recent lack thereof. Breyer pointed out that even though federal law provides a cost-of-living increase to sitting judges, Congress has consistently voted to cancel the pay hike. The problem isn't the law, he said, but the fact that judges -- even on the high court -- lack political clout.
"When I was on the Judiciary Committee in the staff, I received a phone call one day from Warren Burger, the chief justice of the United States," Breyer recalled. "And he spoke to me and asked me about a bill that was relevant. I thought after, Why is he calling me? And the reason is that no one else would talk to him."
Breyer argued that despite concerns about separation of powers, there should be "a person with political responsibility" in the Cabinet to express the judiciary's viewpoint directly to the president. He compared the position to that of lord chancellor in England.
Hinting at who might play that role, he said, "That is my secret reason for mentioning the Department of Justice every chance I get. Don't tell anyone."
The suggestion got an enthusiastic reception from the audience, which included a large group of high profile lawyers and judges. During the question-and-answer session, Randall Shepard, chief justice of the Indiana Supreme Court, offered that if Breyer would "tease out" the idea more, he would "undertake to recruit my fellow chief justices to pursue it further."
"Good offer. Accepted," Breyer said.
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O'Connor on Judicial Elections, Civic Education and the High Court Vacancy
Tony Mauro, The National Law Journal
When she retired in 2006, U.S. Supreme Court Justice Sandra Day O'Connor lamented that her successor Samuel Alito Jr. did not wear a skirt. In an interview last week with The National Law Journal, O'Connor said that, with a new vacancy on the Court, most people are "expecting and indeed hoping" that the next appointee will be a woman. "There was a little backsliding when I left."
O'Connor, 79, also spoke about the departure of Justice David Souter, with whom she served on the Court for 16 years, and about the collapse of civic education nationwide.
The interview took place on the eve of the latest in a series of conferences she has coordinated at Georgetown University Law Center on threats to a "fair and independent" judiciary at the state and federal levels. The conference brought together judges, academics and lawyers from across the nation -- including Solicitor General Elena Kagan and Judge Diane Wood of the 7th U.S. Circuit Court of Appeals, both prominently mentioned as possible Souter replacements.
O'Connor has spotlighted the increasing cost and contentiousness of state judicial elections, and urges states to scrap elections to restore public trust in the court system. Judges, she said at a recent American Bar Association conference in Charlotte, N.C., should not be viewed by the public as "just politicians in robes."
At the same conference, O'Connor referred to the pending Supreme Court case Caperton v. A.T. Massey Coal Co., in which the issue is whether a West Virginia judge can be constitutionally required to recuse in a case in which a party before him raised $3 million for his re-election campaign. "It just doesn't look good," O'Connor said. In seeking the interview, we told her we would ask her about the Caperton case. The text of the interview follows, edited for clarity and length.
Thank you for speaking with us.
Well, I'm not going to talk to you about everything. I sure don't want to talk to you about Caperton, because it's still pending.
You did mention it in Charlotte I believe.
I mentioned it as an example of what happens with a lot of money going into judicial elections in states.
And that's still a very major concern for you, right?
It certainly is.
Do you think it's even gotten worse since your last Georgetown conference in 2007?
Well we have examples -- certainly Texas is one, Alabama is one, Illinois with the $9 million campaign, and West Virginia and others. There have been lots of examples. It's certainly no better, and we still have a substantial number of states that prefer judicial elections with generous financing by contributions.
Is it possible to make that case to move away from elections in states that want them?
Well, indeed it is! We need to try to keep making that case. I don't know that we've been very successful lately, but I think we certainly make the effort. There's some effort going on in Nevada. There was an effort in Tennessee to end the merit selection system there, and revert to the old election system. That's still pending. Part of the state of Indiana, the Legislature voted to move back into elections. The governor vetoed it, but the Legislature might override it. We don't know. But there are certain states where it is an issue, and the situation is somewhat fluid.
What are you hoping to accomplish with the conference?
I think the main goal is to make sure that we have a conference at the outset of a new administration in our government, to make sure there's an awareness in the new government about some of the concerns that have been expressed, in the hope that that knowledge will provide some opportunities for the new administration to weigh in in constructive ways with the problems we've identified.
I know that one of the topics is diversity in the judiciary. What do you want to tell the new administration about this? You can guess what I'm hinting at with this question.
Well, we have a current vacancy coming up on the U.S. Supreme Court, and I think much of the country appears to me to be expecting and indeed hoping that there will be a woman to fill that slot. That would add a little measure of more diversity, I would say. There was a little backsliding when I left.
You and Justice Ginsburg have always said a wise woman and a wise man --
A wise old woman and a wise old man, at the end of the day, can reach the same conclusion.
That said, you believe there is importance to diversity.
There is. I think we have to remember that slightly over 50 percent of the population has two X chromosomes, and it doesn't hurt to be able to look at the positions filled in our government and to see in fact that women are represented in more than token numbers.
What's your feeling about Justice Souter leaving?
Well, I liked him very much, and still do, and I'm sad that he's leaving. I issued a statement. I said, I think, that he was wise, witty and wonderful.
Back to the judiciary, I know in Charlotte there was a lot of talk about the budget crunch and what effect that is having on the courts.
By far, it is the worst problem facing the courts, the state courts. Most of the judicial work is in the state courts. The federal courts are a drop in the bucket -- 390,000 cases versus millions and millions at the state courts, so the work is being done at the state level, and they're short of money. The budgets of the state courts are being cut. It's going to be extremely difficult for them to operate. I don't know how they're going to manage. And it's also in the states where we see these judicial elections with very large campaign contributions. We have a lot of work to do.
Where else does effort need to be made?
We also have the huge problem of the collapse of civic education in our country. Half the states don't make civics and government a requirement anymore. Now, how are we going to have a knowledgeable, participatory population if we don't teach every generation about what our system of government is? I just don't understand it. I cannot understand it, why a state would let that lapse.
Where did we as a nation take the wrong turn on civic education?
We stopped supporting it. I suppose that some of the civics classes and textbooks got pretty boring, and maybe it wasn't engaging the students in ways they thought were meaningful. I think the remedy there is to teach in more effective and innovative ways, and to come into the modern generation. Young people today spend an average of 40 hours a week in front of some kind of a screen -- whether a computer or a TV screen. We need to use the media that young people use, to get their attention!
That's why the "Our Courts" program was developed out of these conferences at Georgetown. It's online [www.ourcourts.org], and it's going to have interactive games posted on it this summer. Very fun and very innovative and exciting for young people. When they have something like that to turn to, they will learn and they will be engaged! And they'll be happy to be learning. It's going to work.
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Threats to Judges, Prosecutors Soaring - Worried Court Personnel Resort To Guards, Identity Shields, Weapons
By Jerry Markon, The Washington Post
May 25, 2009
Threats against the nation's judges and prosecutors have sharply increased, prompting hundreds to get 24-hour protection from armed U.S. marshals. Many federal judges are altering their routes to work, installing security systems at home, shielding their addresses by paying bills at the courthouse or refraining from registering to vote. Some even pack weapons on the bench.
The problem has become so pronounced that a high-tech "threat management" center recently opened in Crystal City, Virginia, where a staff of about 25 marshals and analysts monitor a 24-hour number for reporting threats, use sophisticated mapping software to track those being threatened and tap into a classified database linked to the FBI and CIA.
"I live with a constant heightened sense of awareness," said John R. Adams, a federal judge in Ohio who began taking firearms classes after a federal judge's family was slain in Chicago and takes a pistol to the courthouse on weekends. "If I'm going to carry a firearm, I'd better know how to use it."
The threats and other harassing communications against federal court personnel have more than doubled in the past six years, from 592 to 1,278, according to the U.S. Marshals Service. Worried federal officials blame disgruntled defendants whose anger is fueled by the Internet; terrorism and gang cases that bring more violent offenders into federal court; frustration at the economic crisis; and the rise of the "sovereign citizen" movement -- a loose collection of tax protesters, white supremacists and others who don't respect federal authority.
Much of the concern was fueled by the slaying of U.S. District Judge Joan H. Lefkow's husband and mother in their Chicago home in 2005 and a rampage 11 days later by an Atlanta rape suspect, who killed a judge, the court stenographer and a deputy. Last year, several pipe bombs exploded outside the federal courthouse in San Diego, and a drug defendant wielding a razor blade briefly choked a federal prosecutor during sentencing in Brooklyn, N.Y. In March, a homicide suspect attacked a judge in a California courtroom and was shot to death by police.
"Judges today have dangerous jobs, and that danger has many dimensions," said David Sellers, a spokesman for the administrative office of the U.S. Courts. "They are worried about security and safety 24 hours a day."
Although attacks on federal court personnel have not increased, the explosion of vitriolic threats has prompted a growing law enforcement crackdown aimed at preventing them. The U.S. Marshals Service, which protects judges and prosecutors, says several hundred require 24-hour guard for days, weeks or months at a time each year, depending on the case.
"We have to make sure that every judge and prosecutor can go to work every day and carry out the rule of law,'' said Michael Prout, assistant director of judicial security for the marshals, who have trained hundreds of police and deputies to better protect local court officials, an effort that began last year with Northern Virginia and Maryland officers.
"It's the core of our civil liberties,'' Prout said.
State court officials are seeing the same trend, although no numbers are available. "There's a higher level of anger, whether it's defendants or their families," said Timothy Fautsko, who coordinates security education for the National Center for State Courts in Williamsburg and said threats are coming from violent offenders along with divorce, probate and other civil litigants.
The threats are emerging in cases large and small, on the Internet, by telephone, in letters and in person. In the District, two men have pleaded not guilty to charges of vowing to kill a federal prosecutor and kidnap her adult son if she didn't drop a homicide investigation. The judge in the CIA leak case got threatening letters when he ordered Vice President Richard B. Cheney's former chief of staff to prison. A man near Richmond was charged with mailing threats to a prosecutor over three traffic offenses. The face of a federal judge in the District was put in a rifle's cross hairs on the Internet after he issued a controversial environmental ruling, judicial sources said.
Hundreds of threats cascaded into the chambers of John M. Roll, the chief U.S. district judge in Arizona, in February after he allowed a lawsuit filed by illegal immigrants against a rancher to go forward. "They cursed him out, threatened to kill his family, said they'd come and take care of him. They really wanted him dead," said a law enforcement official who heard the calls -- which came from as far as Richmond and Baltimore -- but spoke on condition of anonymity because no one has been charged.
David Gonzales, the U.S. marshal in Arizona, said deputies went online and found Roll's home address posted on a Web site containing threatening comments. They put the judge under 24-hour protection for about a month, guarding his home in a secluded area just outside Tucson, screening his mail and escorting him to court, to the gym and to Mass. "Some deputies went to church more in a week than they had in their lives," Gonzales said.
Roll said that "any judge who goes through this knows it's a stressful situation" and that he and his family were grateful for the protection.
The stress nearly overcame Michael Cicconetti, a municipal court judge in Painesville, Ohio, after police played a tape for him of a defendant in a minor tax case plotting to blow up the judge's house. "I hear a man's voice talk about putting a bomb in the house, and another voice says, 'What if there are kids involved?' and the first man says, 'They're just collateral damage,' " the father of five recalled.
Cicconetti evacuated his family for a terrifying week in which they were under guard and stayed at friends' houses. "I couldn't go to work for two weeks. I was too shaken up. I couldn't think," he said. For months, the judge was nervous every time a car drove by his home. His children were afraid to go to bed; their grades dropped.
The judge now has a security system in his home -- and a stun gun within reach in court.
Sibley Reynolds, a state court judge in Alabama who prosecutors said was threatened last year by the son of a defendant convicted of stealing about $3,000 from a humane shelter, packs the real thing -- a Colt automatic pistol. He keeps it under his robe, in his waistband.
"I don't go anywhere without my security with me," Reynolds said.
Court officials could not say how often judges arm themselves. But the marshals have installed home security systems for most federal judges since the Lefkow incident, and many are removing their photos from court Web sites and shielding their home addresses. Senior U.S. District Judge Thomas F. Hogan in the District said judges who have handled terrorism matters are hesitant to travel to the Middle East, or to South America if they've had drug-trafficking cases.
U.S. District Judge Wayne Andersen in Chicago said he has "stopped even mentioning publicly that I have children. Normally, parents want to be visibly associated with their kids. Judges now think everything is on the Internet.''
The Judicial Conference of the United States, the policymaking arm headed by the Supreme Court chief justice, will soon distribute a DVD with security tips. It will be called Project 365, for security 365 days a year.
"Judges today are far more security-conscious than they ever have been," said Henry E. Hudson, a federal judge in Richmond who is working on the DVD. "I don't think it's at the point where it's interfering with their judgment and dedication to their jobs.''
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YOUR VIEWS: Editorial decrying 'lenient' sentence does disservice to justice system -
The Birmingham News
May 16, 2009
Your May 6 editorial concerning the sentence imposed on a defendant in the U.S. District Court for the Northern District of Alabama ("Tough on crime -- not") did a grave disservice to our system of justice and to the sentencing judge.
In your editorial, you indicated you had consulted the court records. The reader would assume you had sufficient knowledge of the facts. The conclusions you reach in your editorial are not supported by the facts, and you owe this judge an apology and your readers a correction.
While I had no prior knowledge of this case, I quickly determined this defendant was sentenced within the sentencing guideline range, and there were no objections to the guideline range utilized by the court in this sentencing. Extensive background information was furnished to the judge by the U.S. attorney's office, the U.S. probation office and counsel for the defendant. The defendant received the appropriate sentence, which was two months in custody, two months home confinement, a five-year maximum term of probation and full restitution.
You seek to compare this nonviolent offense with violent offenses. In that, you deceive the reader into believing that a nonviolent taking of money is analogous to the taking of money with the use of a weapon.
One of the major problems faced by our criminal justice system today is the incarceration of nonviolent offenders who can be punished constructively at significant savings of time and money to the criminal justice system. The current cost for maintaining a federal prisoner is $68 per day, and it is in the best interest of the public for our limited resources to be spent on violent offenders as opposed to nonviolent offenders.
In addition to the punishment imposed, the felony conviction for this defendant will punish her for the rest of her natural life. It will bar her from many areas of employment and take away her right to vote.
The Federal Sentencing Guidelines have been the subject of much criticism, study and debate, but they do exist and set out standards for the imposition of sentences. Your contention that a federal judge who follows the sentencing guidelines is being "lenient" is factually wrong and intellectually dishonest.
To assist you and your editorial board in learning more about criminal sentencing, the problems associated with handling nonviolent offenders and the importance of protecting the independence of our judiciary, I encourage you to utilize the resources of the Alabama State Bar.
J. Mark White
Alabama State Bar
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Coalition Seeks Disbarment of Bush Lawyers Over Interrogation of Terrorism Suspects
By Joe Palazzolo, Law.com
A collection of organizations, most of them left-leaning, filed complaints Monday with five State Bar associations, accusing former Attorneys General John Ashcroft, Alberto Gonzales, Michael Mukasey and nine other former Bush administration lawyers of violating professional standards by sanctioning the use of torture on terrorism suspects.
The complaints, filed with State Bars in the District of Columbia, New York, California, Texas and Pennsylvania, seek disciplinary action and disbarment. The others named in the complaints include former Office of Legal Counsel lawyers John Yoo, Jay Bybee and Stephen Bradbury; Michael Chertoff, former secretary of the Department of Homeland Security and head of the Justice Department's Criminal Division; Alice Fisher, also a former head of the Criminal Division; former Defense Department lawyers William Haynes II and Douglas Feith; former deputy White House counsel Timothy Flanigan; and David Addington, former chief of staff to Vice President Dick Cheney.
The complaints are the latest in a campaign to ratchet up the pressure on the Obama administration to investigate Bush administration officials for their roles in blessing harsh interrogation techniques. Attorney General Eric Holder Jr. and other officials have equated one of the methods, waterboarding, to torture.
Holder has not ruled out criminal investigation, but in public testimony the attorney general has appeared tepid about the proposition. Holder has said he is waiting for the completion of a report by the department's Office of Professional Responsibility, which is investigating whether Yoo, Bybee and Bradbury violated professional standards in authoring several OLC opinions related to interrogation techniques and the president's wartime powers. The report is said to refer Bybee and Yoo to State Bar associations for possible disciplinary action.
Kevin Zeese, who signed the complaints filed Monday, ran unsuccessfully as Maryland's Green Party candidate in the 2006 Senate election. An activist who worked on Ralph Nader's presidential campaign, Zeese is currently executive director of VotersForPeace.US, a group seeking to end U.S. actions in Iraq. In a statement announcing the complaints, Zeese said, "It is time to hold these lawyers accountable for violating their legal oath. Just as the bar would suspend an attorney who advised a police officer to torture and brutalize a detained immigrant or criminal defendant, the bar must suspend these attorneys for advocating and causing the torture of war detainees. The disciplinary boards that hear these complaints must act or they will be seen as complicit in the use of torture. This is an important step toward the ultimate accountability of criminal prosecution."
The complaints allege the lawyers violated the Constitution, domestic law and international treaties. As reported here by The Washington Post, the bar counsel would face steep hurdles in trying to sanction the lawyers. The state regulators, which are often strapped for resources, would have a difficult time gathering witnesses and evidence and would have to show lawyers violated their duty to a client. And it's unclear whether regulators in Pennsylvania, where Yoo is barred, could even initiate an investigation. ABC's Jan Crawford Greenburg has noted on her Legalities blog that the Pennsylvania Disciplinary Board imposes a four-year limitation for complaints. Yoo wrote the memos in 2002 and 2003.
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Calif. Bar to Offer 'Find a Lawyer' Service
Mike McKee, The Recorder (San Francisco, CA)
May 21, 2009
Wanting to help people locate that perfect lawyer to handle their divorce, sue the jerk who totaled their car or whatever else, the State Bar of California has started up a new "Find a Lawyer" program.
But there's one big hitch. Searching by area of practice or expertise won't be an option.
After a tortured debate in San Francisco on Friday afternoon, the State Bar Board of Governors by a vote of 11-8 approved a new "Find a Lawyer" program that will let the public search a soon-to-be-built Web site by languages spoken and geographic area.
Searchers will be able to examine attorneys' profiles -- such as where they went to law school and their phone numbers -- and be provided photos of the attorneys, a map to their offices and a link to their own Web pages.
But forget about looking under area of practice. That was deemed too risky.
Searching by area of practice was blocked by lawyer referral services, which asserted that attorneys who self-designate themselves as experts in certain fields could be fibbing and that average citizens -- mistakenly believing the lawyer has been thoroughly vetted by the State Bar -- could find themselves with a dud.
"The State Bar will be explicitly or implicitly implying that that lawyer is an expert," Thomas Kuhnle, immediate past president of the Santa Clara County Bar Association and a member of the 10-person "Find a Lawyer" task force, told governors on Friday.
Julia Wilson, the executive director of the San Francisco-based Legal Aid Association of California, agreed: "I would not have the same comfort level telling people to go search the State Bar Web site" for experts. She noted that the state's many independent or local bar-operated lawyer referral services ensure that the attorneys they recommend are what they say they are.
Friday's meeting began with fractured reports from the "Find a Lawyer" task force, with the seven members representing the State Bar Board of Governors disagreeing with the three members from local bar associations. Although there were some concerns last year that the State Bar's "Find a Lawyer" program would compete financially with the outside lawyer referral services, by Friday the divisions had come down to whether the public could search by area of practice.
Several Bar governors at the meeting ridiculed the idea of having a lawyer search program that doesn't include area of practice.
"That is the only way this is user-friendly for the public," Jeannine English, one of the board's non-lawyer members, argued.
Bar governor John Peterson, of counsel with Fresno's Atkinson, Andelson, Loya, Ruud & Romo, agreed, calling it "absolutely silly to have a search engine that doesn't include practice areas."
The strongest advocate for a State Bar-operated "Find a Lawyer" program was John Hodson, a partner with Vacaville's Hodson & Mullin and vice chairman of the State Bar's Family Law Section. He accused the lawyer referral services of trying to protect their financial interests and ridiculed them for insinuating there were "160,000 John Dillingers out there" waiting to prey on citizens.
At one point, English moved to kill the "Find a Lawyer" program altogether, but that failed by a vote of 15-4.
A couple of Bar governors said they thought the State Bar shouldn't be in the lawyer referral business at all, but agreed to go along with the compromise that eliminated searching by practice.
Bar governor James Aguirre, a lawyer with Los Angeles' Richardson & Fair, summed up the outcome best: "Is it perfect? No. But it's a step in that direction."
OUR VIEW: Alabama Legislature sets minimum experience requirement for state judges – [Editorial]
The Birmingham News
May 13, 2009
We interrupt our regularly scheduled rant about what state legislators failed to do this year to bring you this important message about a bill they actually passed.
Specifically, lawmakers approved a measure that requires state judges to have a certain amount of legal experience before taking the bench. It's a good idea -- so good, in fact, that at least 30 states already have a similar law on the books. That includes all Southeastern states except North Carolina and Tennessee.
The reason is obvious. Lawyers with a few years experience under their belts are better prepared to don robes as judges, in the same way that pilots with more practice are better prepared to fly passenger jets. Before you say the analogy is a bit of a stretch, remember that some judges hold lives in their hands, too.
Gov. Bob Riley is expected to sign the measure, which was pushed by state Rep. Paul DeMarco of Homewood and supported by the Alabama State Bar.
The law will require judges who sit on the state Supreme Court, the Court of Criminal Appeals or the Court of Civil Appeals to have been a licensed lawyer for 10 years. Circuit-level judges would be required to have five years as a licensed lawyer, while district judges would have to have three years of experience. It goes into effect with the 2010 elections and does not apply to judges who are already on the job.
The minimum requirements don't provide guarantees. As we've acknowledged before, not all experience is equal, and judges need some attributes that aren't necessarily linked with legal work. Some people might practice law for a quarter century and still not be well-suited to the bench. Some people with no legal experience at all have become respected judges.
But they are the exceptions.
For the most part, experienced lawyers are going to make the best judges, and legislators deserve a pat on the back for making this sensible job requirement a part of the law.
Now back to our regularly scheduled programming.
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Alabama legislators set experience for judges
The Associated Press
May 8, 2009
The Alabama Legislature has passed a bill to set minimum experience requirements for judges.
The House gave final approval Thursday to a bill that requires a state appeals court judge to have been a lawyer for at least 10 years. Circuit judges would need five years' experience and district judges three years. The requirements will take effect for judicial candidates in next year's elections. Current judges are exempt.
The Alabama State Bar pushed the bill along with Republican Rep. Paul DeMarco of Homewood and Democratic Sen. Roger Bedford of Russellville. Bedford said Friday the bill will help improve the quality of judges in Alabama.
There are currently no experience requirements for judges in the state.
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Ala. state bar offers free legal advice
By Liz Nelson, FOX 10 (Mobile, Ala.)
12 May 2009
MONTGOMERY, Ala. - As economists and policy-makers work out plans to help the nation's troubled economy, homeowners who’ve lost jobs, or whose salaries have been slashed, are struggling to pay their mortgages.
In response to the mortgage foreclosure crisis, the Alabama State Bar and Legal Services Alabama have joined in a unique partnership with a plan to help Alabama homeowners remain in their homes.
Under a public awareness and education campaign created by the state bar, homeowners facing foreclosure can call a toll-free hotline (1-877-393-2333) and be connected with a legal aid attorney who will advise them about the various stages of the process and furnish free legal assistance. Such assistance can take the form of limited representation, negotiation or litigation, if necessary.
State Bar President-elect Thomas J. Methvin of Montgomery (Beasley, Allen, Crow, Methvin, Portis & Miles, P.C.), who chairs the Mortgage Foreclosure Task Force said, "Help is available. Homeowners need to know there are options but the key to a successful outcome is early intervention and I can’t stress that enough. If you are having a problem making your monthly payments and believe foreclosure is imminent you must act now."
Working in cooperation with the state Broadcasters Association, the state bar has produced a series of broadcast messages that will begin airing on radio and TV in Mobile and surrounding areas. In addition, the bar has available a public information pamphlet that provides answers to some of the most commonly asked questions about foreclosure. Copies may be downloaded from the bar's Web site: www.alabar.org and then click on the words "foreclosure resources."
Methvin said, "We are very concerned about people losing their homes. We are also concerned about other related effects of foreclosure such as reducing property values, creating blight with vacant and abandoned properties in neighborhoods, diminishing the local tax base which often supports important services, and straining court dockets."
He explained that Alabama allows for two kinds of foreclosure proceedings; judicial and non-judicial. Non-judicial foreclosures are actually more common and are the ones that can occur in such a short time frame, 21 days. This is why it is crucial for homeowners who have missed making even one monthly mortgage payment to call the hotline immediately.
At no cost, legal aid attorneys will interview homeowners by phone and may write a letter on their behalf to the lender for example, or, depending upon the circumstance, they will try to negotiate a work-out of the mortgage. In some cases, the attorney may represent the homeowner in various stages of foreclosure litigation, including mediation, but this option is limited to low-income individuals. A grant from the Alabama Civil Justice Foundation and from the Access to Justice Commission allowed LSA to employ attorneys to handle the calls.
"We are committed to assisting consumers who are facing the difficult prospect of losing their homes or filing for bankruptcy," Methvin said.
Legal Services Alabama is a non-profit organization providing free civil legal and law related services to low income Alabamians in all 67 counties.
The 16,000-member Alabama State Bar is dedicated to promoting the professional responsibility, competence and satisfaction of its members, improving the administration of justice and increasing public understanding and respect for the law.
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O’Connor on Judicial Elections: ‘They’re Awful. I Hate Them’
By James Podgers, ABAJournal.com
May 9, 2009
Warnings that judicial elections increasingly threaten to undermine the independence of courts were bookends for Friday's ABA summit on how to preserve fair and impartial state courts.
"I'm still resolute that how we select our judges is crucial to a fair and impartial judiciary," retired Associate Justice Sandra Day O'Connor told some 300 attendees during a keynote speech Friday morning at the summit in Charlotte, N.C.
"The public is growing increasingly skeptical of elected judges in particular," said O'Connor. She was referencing surveys showing that more than 70 percent of the public and more than a quarter of judges are considerably more distrustful of their judges than they have been in the past.
Warning of a snowball effect, she added, "Distrust of the judiciary in any jurisdiction becomes distrust of the judiciary in all jurisdictions." At risk is the perception by the public that judges are "just politicians in robes."
In her speech, O'Connor didn't come out explicitly against judicial elections, which are held in some form in 39 states. But afterward, she told the ABA Journal, "They're awful. I hate them."
Constitutional scholar Erwin Chemerinsky, now dean at the new University of California-Irvine law school, closed Friday's programming on a similar note.
Like O'Connor, Chemerinsky pointed to a pending case before the U.S. Supreme Court, Caperton v. Massey Coal Co., as an example of how even the appearance of impropriety in judicial elections threatens to undermine public confidence in the courts.
In Caperton, the losing party in a business dispute in West Virginia spent $3 million to support a candidate running for state supreme court. After the candidate was elected, he provided the deciding vote in a decision by the supreme court that overturned the lower court decision against his supporter. The newly elected justice also declined to recuse himself from the case.
"It just doesn’t look good," O'Connor said in her speech. "West Virginia cannot possibly benefit from having that much money injected into cases."
O'Connor declined to speculate on the outcome of Caperton, which the U.S. Supreme Court is expected to decide before its current term ends, but Chemerinsky predicted the justices will rule that the West Virginia Supreme Court's decision constituted a violation of due process.
Regardless of how the high court rules, Caperton has raised questions about what the boundaries should be for appropriate behavior for elected members of the judiciary.
Court decisions in recent years, such as the Supreme Court's 2002 ruling in Republican Party of Minnesota v. White, have given judges more flexibility to speak out on issues that may come before them on the bench, noted Chemerinsky. Moreover, contributions and spending on judicial campaigns are skyrocketing, he said.
"The very nature of judicial elections has changed in the last decade," he said, "and it has not been beneficial for judicial independence."
But Chemerinsky said efforts to eliminate judicial elections are probably futile. It probably is more realistic to seek tighter controls for judicial elections, such as limits on campaign spending, and behavior by judges once elected to the bench, such as taking recusal decisions out of their hands.
The summit, which is being sponsored by the ABA Presidential Commission on Fair and Impartial State Courts in cooperation with the National Center for State Courts, ends Saturday.
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Coalition of lawyers fosters diversity
By Bloomberg News
May 8, 2009
NEW YORK - Top lawyers from Coca-Cola Co., Microsoft Corp., and 12 other Fortune 500 companies joined five top US law firms to form a nonprofit organization aimed at promoting women and minorities in the legal profession.
The Leadership Council on Legal Diversity evolved from a meeting of lawyers from Fortune 500 companies and law firms.
Minorities account for 6.6 percent of the partners at 252 of the largest or highest-grossing law firms, according to a 2009 survey by Minority Law Journal. Women account for 18.7 percent of partners at the major law firms, according to a 2008 industry survey.
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Sue Bell Cobb considering running for governor
by Charles J. Dean, The Birmingham News
May 02, 2009
SELMA --Chief Justice Sue Bell Cobb said today she is considering stepping down from the state's Supreme Court to run for governor.
Cobb was elected chief just 30 months ago but said she has been approached about making the run for the Democratic Party nomination for governor and has been encouraged by the level of support for making the bid she has received.
"I love the work of the court," Cobb said just before speaking to the spring meeting of the mostly black political group the New South Coalition.
Cobb said she has set no deadline to make a decision on whether to run.
Not everyone in the Democratic Party wants Cobb to make the bid. The state's trial lawyers group is not crazy about seeing Cobb step aside and -- in the process -- seeing the court lose its only Democrat.
Montgomery lawyer and former state bar association president, Bobby Segall, said Cobb has become a great chief justice in a short period of time. "A lot of us just don't want to see her leave the bench," Segall said.
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Mortgage Meltdown: Ruling buys troubled homeowners time
By KRISTY EPPLEY RUPON, The State (Columbia, SC)
May 5, 2009
Homeowners facing foreclosure could get a little extra time to work out a new payment under a ruling Tuesday by the S.C. Supreme Court.
But if borrowers can’t afford a reasonable mortgage payment, their homes still will be headed for the auction block, said Rhonda Marcum, executive director for the Mortgage Bankers Association of the Carolinas.
The court agreed to suspend until May 15 foreclosures on homes in South Carolina whose loan servicer has agreed to participate in a federal modification program. President Barack Obama rolled out a $75 billion mortgage relief plan in February designed to keep up to 9 million Americans out of foreclosure.
The decision halts legal proceedings on all homes undergoing foreclosure.
South Carolina has an estimated 6,291 homes in some stage of foreclosure, said Rick Sharga, senior vice president for RealtyTrac, a foreclosure listing service.
It’s unclear how many of the homes would be eligible for the federal restructuring program.
Freddie Mac and Fannie Mae, which requested the injunction, had suspended foreclosure proceedings nationwide through March to give lenders a chance to work with homeowners who might qualify for the program.
The request for a ruling in South Carolina was because of an unusual state law.
South Carolina’s temporary suspension is designed to give servicers more time to evaluate homeowners’ circumstances before approving a modification.
“Doing a modification that’s not going to help the consumer doesn’t stop the bleeding; it just slows it down,” Marcum said.
Studies have shown that as many as 50 percent of loans that are modified end up in foreclosure again, she said.
If a homeowner has lost all income and has no prospects for employment, they likely would not be approved for a restructured loan, she said. But if someone loses a job and has a spouse still working, they potentially could cut expenses enough to afford a reduced mortgage payment.
“A payment has to be factored into what the consumer can realistically pay,” Marcum said.
Fannie Mae asked for the injunction in South Carolina, said spokesman Brian Faith, because the state has a rule that allows judges on a county-by-county basis to set aside foreclosure proceedings if too much time passes between a foreclosure judgment and a foreclosure sale.
Judges can make all parties start the process over from the beginning, which costs more for everyone involved, Faith said. He said South Carolina is the only state he is aware of that has this rule so Fannie Mae will not be seeking similar rulings in other states.
Dave Whitener, a real estate lawyer and adjunct professor at the University of South Carolina School of Law, said he had never heard of judges using that rule and that it doesn’t make logical sense since it would add extra work.
Whitener applauded the Supreme Court for taking the action to suspend foreclosures to give struggling homeowners extra time to work out a modification plan.
“Our Supreme Court is saying, ‘Let’s slow this train down until we make sure whether or not these people can be protected,’” Whitener said. “I think that’s very impressive.”
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In Georgia, lawyers abandoning the poor
By Bill Rankin, The Atlanta Journal-Constitution
May 06, 2009
YOUNG HARRIS — Across Georgia, poor people accused of crimes are being abandoned by their lawyers because there is no money to pay their legal fees.
There are also 10 death-penalty cases proceeding to trial with $1.1 million in expected billings. But there is no money to pay for those cases, either.
At its Tuesday meeting, the Georgia Public Defender Standards Council’s board grappled with a familiar problem — a mountainous stockpile of unpaid bills.
Just a few weeks ago, the council’s board was on the legislative endangered list.
Influential lawmakers, irritated by some board members’ complaints about inadequate funding, pushed legislation to strip the board of its authority. The bill would have replaced the board’s current, policy-making members with new members serving only in advisory roles.
The bill passed the Senate and a key House committee but was withdrawn from the House floor on the session’s final day.
Tuesday’s meeting, at the Brasstown Valley Resort & Spa, was the first time the board convened since the legislative session. Once again, members heard more sobering reports about the financial plight of the state indigent defense system.
The council’s main problem is its inability to pay the bills for “conflict” cases. These are multi-defendant cases in which a state-salaried public defender can represent only one person because of conflict-of-interest rules. Private attorneys are hired to represent the co-defendants.
Many bills from these cases, which number in the thousands statewide, have not been paid because of budget shortfalls.
In response, exasperated lawyers are asking to withdraw from cases, and judges are letting them do it. Making matters worse, no one is telling the council about these defendants who are now lawyerless, the council’s executive director, Mack Crawford, said.
The council has already been hit with one lawsuit, filed in Elbert County.
It says hundreds of indigent defendants unable to afford their own lawyers are not being provided representation as required by law.
Council board member David Dunn, a circuit public defender in LaFayette, said the council must pay its bills.
Not long ago, Dunn said, private attorneys in his circuit gladly accepted conflict cases. “But they haven’t been paid in years,” he said. “The won’t take the cases anymore. No one wants to take them anymore.”
Help could be on the way. Lawmakers put in $1.6 million in the council’s fiscal year 2010 budget for the council to pay its outstanding legal bills for these conflict cases. This money should help pay many of the bills, Crawford told the board.
But the capital cases are another matter, he said.
“I don’t know how to address this because the money is not there,” Crawford said of the pending capital cases.
Crawford suggested that Gov. Sonny Perdue could ask the Fiscal Affairs Committee to help solve the problem. The panel has the power to shift money approved for one purpose at the defender council to another purpose within the agency.
Bert Brantley, a Perdue spokesman, said the governor would consider such a request. But he said the governor would have to weigh it the request with the demands on an already tight state budget.
Last week, lawyers representing capital defendant Frank Ortegon Jr., accused of multiple killings at a Forsyth County farmhouse, asked for the dismissal of Ortegon’s indictment because legal bills aren’t being paid, Cumming lawyer Jeffrey Purvis said.
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State bars offer help with the recession
Karen Sloan, The National Law Journal
May 01, 2009
Internet-based seminars about interviewing skills.
Lunchtime strategy sessions for out-of-work attorneys.
CLE courses that focus on broadening skills and staying profitable in tough economic times.
State bar associations are broadening their programming and launching initiatives to help attorneys manage through the down economy. Their efforts touch on everything from assisting attorneys who have been laid off to helping attorneys market their services and manage flagging practices.
Some of the programs are entirely new and are a direct response to the struggles attorneys face because of the economy. Others — such as additional job listings and dues waivers for unemployed attorneys — are expanded versions of resources that state bar associations offered members before the downturn.
Some bar associations have simply taken existing resources and packaged them online as one-stop shops. The State Bar of Texas has a "Resources for Tough Times" page on its Web site that offers information about career issues, professional development, stress management and practice management, among other things.
"We pulled it all together on one page when the economy started to go bad," said Texas Bar spokeswoman Kim Davey. "You want to make things as easy as you can for people right now."
Earlier this year, the American Bar Association surveyed state and local bar associations to find out how the recession has affected their operations and what they were doing to help members cope. Most respondents — 72% — reported that they now had dues waivers and payment plans for members facing financial hardship, while 34% offered career counseling and 21% offered personal counseling.
"There is such a need out there, and I feel a responsibility to help," said Lauren Wachtler, a partner in the New York office of Los Angeles-based Mitchell, Silberberg & Knupp and chairwoman of the New York State Bar Association's Committee on Lawyers in Transition. "I also feel like bar associations have a responsibility to help out."
The New York Bar's program was originally intended to assist attorneys who have left the profession voluntarily, but now it focuses more on those who have been laid off. Last month, the committee launched a five-part series of free webcasts dealing with issues such as answering difficult interview questions, developing a networking game plan and selling oneself during an interview. The first webcast in late April remains available to watch at any time online Wachtler said.
"I had 50 people in my office in person for it, and another 350 registered to watch it online," Wachtler said. "There was a lot of interest."
The State Bar of Georgia recently debuted a free luncheon on the fourth Wednesday of each month to provide out-of-work attorneys with career guidance and tips on job seeking, as well as in dealing with the strains of unemployment.
Georgia Bar spokeswoman Sarah Coole said that each sessions is limited to 40 participants, and that nearly that many people showed up for the first lunch on April 22. The first session focused on how attorneys can use the programs offered by the Georgia Bar to assist in their job search.
Still other state bar associations are offering educational sessions that address the changing climate and how attorneys can overcome the obstacles it presents. According to the ABA's survey of state and local bar associations, 49% of respondents said they were offering CLE sessions focused on fee collection, efficiency in law firm management, bankruptcy, financial planning and foreclosure law, among other things.
For example, the State Bar of California plans a CLE program in May entitled "IP in Troubled Times," with sessions that include "Doing Business in Tough Times" and "Opportunities & Exploitation in Troubled Times and in Bankruptcy." A Web seminar will be called "Law Firm Management & Marketing for Tough Economic Times."
The Massachusetts Bar Association has added a number of programs to address the economy, one of which was a 12-week "Critical Skills" series, said Marc A. D'Antonia, the organization's senior program director. Geared toward general practitioners, each week the seminar series tackled a different recession-related topic, including bankruptcy and employment law. The series was so popular that it spawned six spin-off sessions.
"Anything we can do proactively to address the needs of our members, that's our role," D'Antonia said. "We should be giving them the resources they need to keep the doors open, whether that's networking opportunities or through education."
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The Torture Debate: The Lawyers – [Editorial]
The New York Times
May 7, 2009
It is encouraging to see the Obama team moving toward some accountability for the Bush administration lawyers who justified torture.
Wednesday’s Times reported that the Justice Department’s Office of Professional Responsibility concluded that the lawyers were guilty of serious lapses of judgment when they argued that detainees could be subjected to interrogation methods long banned by American law, military doctrine and international treaties.
A draft report by the office does not call for prosecuting those lawyers, The Times said, but is likely to ask state bar associations to consider disciplinary action. We believe it must do so in unequivocal language. Bar association disciplinary committees are not set up to do investigations into torture, but they have no excuse not to use documentary evidence from the report to proceed.
When the Justice Department’s Office of Legal Counsel renders an opinion, it has the force of law within the executive branch. It is obvious when the attorneys in that office under President Bush were asked for their legal opinion on detainee treatment, they did not make a cold, independent judgment. They deliberately contorted the law to justify decisions that had already been made, making them complicit in those decisions.
Their acts were a grotesque abrogation of duty and breach of faith: as government officials sworn to protect the Constitution; as lawyers bound to render competent and honest legal opinions; and as citizens who played a major role in events that disgraced this country.
The three primary authors of the torture memos were John Yoo, Jay S. Bybee and Steven G. Bradbury. Based on their own words and what we have read about the Justice Department investigation, it is hard to imagine any bar association allowing them to go on practicing law.
Mr. Bybee’s case is the worst. While Mr. Yoo and Mr. Bradbury returned to private life, President Bush rewarded Mr. Bybee with a lifetime position on a federal appeals court. The memos he wrote or signed made it clear that he was not fit to make judgments about the law and the Constitution. Congress should remove him.
The Justice report was finished last November, but withheld by the Bush team to give Mr. Bybee and the others a chance to amend it. The Obama administration should release the full report quickly. There can be no excuse or justification for the abuses – or the abuse of the law. But telling the truth about what happened is the best way to ensure that it never happens again.
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Massachusetts high court authorizes limited assistance representation
By Sheri Qualters, The National Law Journal
May 05, 2009
BOSTON – The Supreme Judicial Court of Massachusetts recently authorized so-called limited assistance representation or unbundled legal representation, which enables litigants to hire lawyers for part of their casework and perform some legal work on their own, across all of the state's trial courts.
The court system is touting the program as a low-cost alternative to pro se representation for financially strapped litigants and an effort to reduce the high percentage of pro se caseloads in some courts.
The May 1 order expands the unbundling program to all trial court departments from pilot projects launched in August 2006 in the Norfolk, Hampden, and Suffolk county probate and family courts.
The Supreme Judicial Court's standing order authorizes each department's chief justice to decide which case matters are eligible for limited assistance representation, with the approval of the state court's chief justice for administration and management. The order also institutes uniform forms and procedures for limited assistance representation and requires lawyers to qualify for the program.
According to the Supreme Judicial Court's announcement, upwards of 80% of litigants in some categories of probate and family court cases and 90% of litigants in some types of housing court cases opt for pro se representation because they do not qualify for free legal assistance or cannot afford full-service counsel.
"With many families suffering economically, and some court caseloads growing dramatically, it is more important than ever to provide the people of Massachusetts with access to cost-effective, high quality legal assistance," said Supreme Judicial Court Chief Justice Margaret H. Marshall, in a statement. "Limited assistance representation is a proven method for addressing the needs of justice in our 21st Century courts."
Paul Burke, director of court operations for the Massachusetts Housing Court, said the housing court has a high number of pro se litigants, and unbundled representation "has the potential of being a useful tool."
The housing court's Lawyer for the Day pro bono program, which recruits volunteer private and legal services lawyers to dispense advice to housing court litigants for a day, has helped the housing court.
"This sort of takes it to the next step," said Burke of unbundled legal representation.
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