Ga. Bar ads urge more judicial funding
The Associated Press
November 14, 2009
ATLANTA - The State Bar of Georgia has unveiled an advertising campaign aimed at encouraging more public support for judicial funding.
The 30-second ad claims that sharp budget cuts are "halting trials and other critical court services that people need." It says that is leading to problems including "criminals released without trial, child support and custody cases undecided, business disputes left unresolved."
It implores viewers to urge lawmakers to devote more funding to the judicial branch to "give our courts the funds they need to stay open."
The executive branch and legislative branch skirted a legal showdown earlier this year over budget cuts. The sharp cuts have forced judges, prosecutors and defense attorneys across the state to take furloughs and have led to growing court backlogs.
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ABA proposes law student loan relief
Karen Sloan, The National Law Journal
November 10, 2009
The American Bar Association is lobbying the Obama administration and Congress to extend relief to recent law school graduates who went into debt to finance their legal educations but haven't been able to find a job because of the recession.
The ABA wants the government to let unemployed graduates convert private loans into federal ones. The change could allow them to defer repaying those loans for as long as three years.
The effort is in its early stages — executives of the largest provider of private law school loans, Access Group Inc., weren't even aware of it, according to spokeswoman Linda Smith.
"This is really intended to give them some breathing room," said ABA President Carolyn Lamm.
The plan was proposed by the ABA's recently formed Commission on the Impact of the Economic Crisis on the Profession and Legal Needs, which is examining how lawyers can confront the recession.
Debt is a huge issue for many law school graduates, particularly given the difficult legal job market. The average public law school graduate borrows $59,324 for law school, according to the ABA. That figure is $91,506 for graduates of private law schools. Many law students take out a combination of federal and private loans.
Different rules apply to federal and private students loans. Federal loans can be deferred for as long as three years if the borrower is unemployed. Private loans generally don't come with that deferral flexibility, said Peter Halle, a senior counsel at Morgan, Lewis & Bockius and a member of the economic crisis committee. He is spearheading the ABA's efforts on the student debt issue.
"There's a fair number of people of people who have private loans, and they don't have the flexibility they need today," Halle said. "Without doing anything radical, we're looking to see if we can increase the amount of money a law student can borrow from the federal government and make that retroactive."
Essentially, the ABA proposes allowing law graduates to borrow from the federal government to immediately pay off any private debt, since most private loans carry no prepayment penalty. Borrowers then could enjoy the deferral benefits of federal loans, such as not having to start repaying loans when they're out of a job.
"The point of the program is to provide a temporary bridge by swapping out the private loan for a public one," Halle said.
It's not entirely clear how this change would be accomplished. The ABA would prefer a modification of the regulations pertaining to federal student loans, although legislation might be required, Halle said. The plan would be "revenue positive" for the federal government, he added.
The ABA plans to meet with federal education officials, members of Congress and White House officials to discuss the plan, Halle said. Preliminary discussions have already occurred and the idea has been well received, Lamm said.
The move would help the private loan providers, too, by helping borrowers to pay off their loans when otherwise they might default, Lamm added. "The [private loan providers] should like this plan because otherwise there is a bankruptcy bath waiting in the wings," she said.
If the changes can't be made through regulation, legislation to that effect could be tacked on to a bill before the end of the current Congressional session, Halle said.
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[This article was suggested for inclusion by Commissioner Tom Ryan]
Hire a Lawyer, Avoid the Death Penalty
by Matt Kelley, change.org (Web site)
November 10, 2009
If you hire a lawyer, the chances are you won't be sentenced to death in Houston.
University of Denver Criminologist Scott Phillips reviewed 504 capital indictments over three decades in Harris County, Texas, and found that defendants who hired lawyers for the entire trial were never sentenced to death -- and were more likely to be acquitted.
The results of his study, published over the summer in the Journal of Criminal Law & Criminology, are truly stunning. Since nearly all defendants facing the death penalty in Harris County were poor, Phillips argues that his results further demonstrate the arbitrariness of capital punishment.
If a defendant's family and community is able to pool resources to hire an attorney, the paid attorney might be better equipped to investigate a case or to bring bargaining power to the table against a district attorney.
He makes clear that his findings aren't an indictment of appointed attorneys, but of the system that straddles those attorneys with thin resources in a death penalty case. Something clearly went wrong for results this drastic.
Phillips also came up with some significant findings on race and capital punishment, which he published in the American Constitution Society's journal, Advance.
Phillips found that the race of a defendant played a significant role in whether he or she was charged with death. This is no surprise to people following capital punishment issues, of course, but Phillips makes some interesting recommendations for prosecutors' offices to avoid this disparity. He praises the Harris DA's office for eliminating the race of a defendant from the memo used to determine whether to seek the death penalty. Other markers, however, still indicate race and play a role in the decision, he says.
Phillips suggests that prosecutors' offices go further than just removing race -- they need to "be vigilant" and remove victim information, neighborhoods, school names and other possible identifiers. This is a commendable -- but unrealistic -- idea.
Phillips' research is important, but I believe it further proves that the death penalty is cruel and unusual. I don't think it's possible to remove the arbitrariness of race, socioeconomic background or myriad other factors that lead the most vulnerable to our death row. Abolishing capital punishment is the only way to address the inherent injustice in the system.
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Legal aid for the poor: Lawmakers should give the Legal Services Corp. the money and flexibility it needs - [Editorial]
The Washington Post
November 16, 2009
CAPITOL HILL will soon face a choice on how to fund the Legal Services Corp. (LSC), the federally created nonprofit organization that provides legal representation in civil matters to poor people. Rather than coldly calculate the money it will allocate to the group, lawmakers should stop to consider the constituents who rely on these services: the newly unemployed, those facing loss of their homes, those in need of guidance to secure food stamps.
Tough economic times have led more poor -- and newly poor -- people to need legal help. The LSC has been grossly underfunded for years, and the amount of money it gets from private and non-federal government sources has been shrinking because of the recession. Fully funding the LSC and giving it as much flexibility as possible will help to ensure that the needy get help.
The House has approved the greater amount for the LSC -- some $440 million for the current fiscal year, up $50 million from fiscal 2009. The House also would allow legal aid lawyers to seek payment of fees if they prevail in a civil case. But representatives kept in place restrictions that prevent the group from using federal dollars in matters that deal with abortion or prisoners. Some limits on the use of federal funds may be appropriate, but it's not right for the federal government also to instruct the group on how it may and may not spend money it raises elsewhere. For example, legal aid lawyers are prohibited from using privately raised funds to launch class actions -- a tool that could help make representation of the poor more efficient and effective.
The Senate, on the other hand, has approved less money -- $400 million -- but lifted most restrictions, with the exception of those relating to abortion and prison matters, on how the LSC may use its funds. The Senate does not allow legal aid lawyers to seek fee awards in cases underwritten with taxpayer funds, but there is no such limitation on litigation funded by outside sources. Altogether, the Senate comes closer to unshackling the LSC in how it uses the roughly $500 million it gets annually from non-federal sources.
Members of the two chambers are expected to meet soon to reconcile their differences. Senators should agree to bump up the dollar amount, and representatives should embrace the less restrictive approach adopted by the Senate.
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State cuts may have big consequences for courts – [Editorial]
November 11, 2009
THE CHIEF justice of the state Supreme Court recently reminded Alabamians that the state's budget woes are affecting critical services besides education.
Chief Justice Sue Bell Cobb said if funding for the courts is cut as sharply as some have projected, the court system will have to lay off hundreds of employees and possibly delay trials, except for criminal cases in counties with overcrowded jails.
It's disturbing that budget cuts might hamper the administration of justice. This is a potential threat to public safety as well as to the principle that justice delayed is justice denied.
Not all accused criminals are sitting in jail awaiting trial; some are on the streets and may commit more crimes if their trials are put on hold for months.
A spokesman for Gov. Bob Riley said lagging state revenues leave state officials with no choice — spending must be reduced "in all sectors of state government."
Certainly that's true, given the economic circumstances. But the governor and the Legislature should keep in mind that cutbacks that limit progress in education could have even more dramatic consequences for General Fund agencies such as the courts, prisons and state law enforcement.
The schools receive billions of federal dollars every year, and the federal government is the main funding source for the Medicaid health care program, which receives state money from the General Fund.
Callie Dietz, a state court system official, told The Associated Press that the courts depend almost entirely on state funding. If the courts take an 8 or 9 percent budget whack, the results will quickly become apparent to the public.
Riley administration officials understand the stakes of the budget-cutting process. They've been negotiating with court officials about possible cuts since September.
All Alabamians should hope the negotiators find a way to keep justice on track.
Alabama Bar Association looks to form federal court section
By Lauren B. Cooper, Birmingham Business Journal
November 3, 2009
The Alabama Bar Association said it has appointed a task force to study the formation of a Federal Court Practice Section.
The task force is comprised of federal judges and practitioners who will determine the feasibility of forming the bar’s 23rd practice group, said a news release.
“A Federal Court Practice Section would serve as the bar's liaison to the federal courts, the standing committees of the Federal Judicial Conference, Federal Bar Association chapters throughout Alabama and those members of the state bar interested in federal court practice,” said Thomas J. Methvin, a Montgomery attorney and president of the bar.
Methvin said the group would assist Alabama lawyers in federal court practice and aid in justice administration for federal judges.
Of the task force’s 10 members, four are from Birmingham, including Chief Judge Sharon L. Blackburn, U.S. District Court, Middle District of Alabama; Judge John L. Carroll, dean of the Cumberland School of Law at Samford University; Jeffrey E. Friedman, an attorney with Friedman Leak Dazzio Zalunas & Bowling; and Bob Methvin Jr., an attorney with McCallum Methvin & Terrell.
The bar said the group will be formed if, after a survey of members, at least 50 indicate a willingness to join the group.
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State bar will conduct free legal clinic today at Focus
October 29, 2009
Tuscaloosa – The Alabama State Bar will conduct a free legal clinic from 1-4 p.m. today at Focus on Senior Citizens, 1920 Sixth Street.
The clinic is for senior citizens 60 and older and low-income residents. Volunteer lawyers and law students from the University of Alabama School of Law will prepare advanced health-care directives – also known as living wills – powers of attorney and simple wills for clients, and will also provide guidance on bankruptcies, foreclosures and other legal issues.
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Pro Bono week spotlights need for equal access to legal service
October 24, 2009
Both the City of Greenville and Butler County Commission have issued proclamations declaring Oct. 25-31 as Pro Bono Week, participating in both a national and state weeklong campaign to spotlight those individuals needing access to legal service.
The Alabama State Bar is sponsoring the campaign.
“Providing access to justice for those who cannot afford it levels the playing field,” said State Bar President Thomas J. Methvin. “When we improve access to the state’s courts we are actually helping Alabama families help themselves.”
Greenville attorney Cleve Poole, who is the 2nd Judicial Circuit representative on the state Board of Bar Commissioners, said attorneys frequently offer their services pro bono, (Latin: “For the public good”), at a reduced rate to those clients who exhibit need.
This week, he said, is the chance for attorneys on a local, state, and national level to focus on low-income citizens who lack basic access to legal assistance.
“Many people know that when you are accused of committing a crime, then the court appoints you an attorney if you’re unable to afford one,” said Poole. “But not in civil cases, which can be anything from divorce, to child support, to lawsuits. And there’s a lot of people who just don’t have the money to pay for legal service.”
According to the Alabama State Bar, Alabama currently ranks 51st in the U.S. and its territories in the amount of funding provided for civil legal aid.
On average, the state spends $10 annually for every low-income citizen, which places Alabama behind even Puerto Rico.
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Thomas facing career hurdle
By KATHERINE SAYRE and ROBERT McCLENDON, Mobile Press-Register
November 1, 2009
Former Judge Herman Thomas, cleared of criminal charges last week, still faces a State Bar that wants to revoke his law license, and can do so without proving wrongdoing "beyond a reasonable doubt" as was required in the criminal case.
Tony McLain, general counsel for the Alabama State Bar, said his organization must only present "clear and convincing" evidence that Thomas' conduct was unprofessional by the Bar's standards.
Thomas, 48, was found not guilty last week on 21 charges — including sex abuse, sodomy, attempted sodomy and assault — after more than two weeks of testimony in court.
The former Mobile County circuit judge was accused of paddling and sexually abusing young men facing jail time, although his defense attorneys argued that his accusers are convicted felons who shouldn't be believed.
The State Bar suspended Thomas' law license earlier this year after he was indicted, finding that there was probable cause that he engaged in "improper sexual conduct" with criminal defendants.
McLain said the Bar now fully intends to pursue license revocation.
Thomas has denied any wrongdoing, and his attorney has said Thomas wants his law license reinstated. Attempts to reach Thomas for comment last week were unsuccessful.
McLain said that if Thomas had been found guilty, the convictions would have been cause enough to revoke his license.
Now that he's been cleared, McLain said, the State Bar will have to show that Thomas violated the Bar's rules of professional conduct.
The Bar will undoubtedly examine some of the same ground covered in the former judge's criminal trial.
Special Judge Claud Neilson threw out kidnapping and extortion charges against Thomas, citing a lack of evidence to support all of the elements of each charge, as defined by the state's criminal statute.
For example, Neilson ruled that a Mobile Government Plaza office where Thomas was accused of paddling men is not a "secret place of isolation" as required by state kidnapping law.
Neilson also ruled that ethics charges against Thomas should be dismissed because the alleged violations occurred too long ago, exceeding the 5-year statute of limitations.
McLain said Bar officials won't face the challenge of proving "each and every element" of the criminal statute beyond a reasonable doubt, as prosecutors did.
The State Bar also has a longer, 6-year statute of limitations, McLain said.
State Bar rules allow Thomas to decide whether his disciplinary hearing — which has not been scheduled — will be open to the public.
The harshest penalty the board could impose would be disbarment. Should he lose his license, Thomas could again apply for reinstatement after five years.
The Alabama Court of the Judiciary has jurisdiction over sitting judges, but nothing prevents the State Bar from examining a judge's actions if that judge has left the bench, said Timothy Chinaris, a law professor at Faulkner University's Jones School of Law in Montgomery.
Alabama's Judicial Inquiry Commission dropped its case against Thomas after he resigned in 2007, when allegations of paddling first emerged.
"People are acquitted in criminal cases for all kinds of reasons, but the Bar may find what somebody did warrants discipline," Chinaris said.
Before his license was suspended in March, Thomas had been practicing in the Mobile firm of James Brandyburg, who did not return a phone call seeking comment last week.
Robert "Cowboy Bob" Clark, who defended Thomas during the criminal trial, said he plans to help the former judge get his law license back. Thomas, however, doesn't want to return to the judicial bench, according to Clark.
Clark said he wants to negotiate with the State Bar, but "if it comes down to having a trial, we'll try it."
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Congress Set to Take Aim at Judicial Recusals
David Ingram, The National Law Journal
Congress is preparing to wade into one of the most sensitive of issues for the federal judiciary: when a judge should step aside in a case and who should make that decision.
The House Judiciary Committee, led by Rep. John Conyers, D-Mich., is planning a hearing on federal recusal guidelines amid controversies that have swept through state court systems in recent years, culminating in a U.S. Supreme Court decision five months ago that tightened the recusal requirements for elected state judges.
The Judiciary Committee's interest marks the first time Congress has flirted with recusal guidelines since a high-profile scrap in 2004 between congressional Democrats and Justice Antonin Scalia. In a debate that broke along partisan lines, Democrats said that Scalia should have recused in a case involving then-Vice President Dick Cheney because he and Cheney were part of a group that went duck hunting in Louisiana while the case was pending. Nonprofits seeking records from Cheney's energy task force eventually lost, 7-2.
Under the current system, federal judges get to decide on their own whether to disqualify themselves from cases. Among the proposals being discussed are requiring a second judge to rule on a recusal motion -- rather than leaving the motion to the "targeted" judge -- and making substitution automatic if any party to a case swears an affidavit alleging prejudice. Some lawmakers, including Conyers, have also said in the past that they want a system to review recusal decisions by U.S. Supreme Court justices.
In interviews last week, several federal judges raised concerns about how a new system would work and whether there are any problems now that need addressing.
"We're very sensitive to the whole area and have tried to address it," said Judge J. Harvey Wilkinson III of the 4th U.S. Circuit Court of Appeals. A former chief judge, Wilkinson said he had no opinion yet on possible changes but would watch the issue closely.
WHEN TO STEP ASIDE
Federal law, judicial canons and advisory opinions from the Judicial Conference all guide the recusal process. Court computers, for example, are programmed not to assign a case to a judge who owns stock in one of the parties. In general, judges must also recuse if they've worked on the case in the past as a lawyer or if a close relative is involved.
But the decision can become much more complicated, especially after a motion that a judge's impartiality "might reasonably be questioned." In 1992, television companies sought the disqualification of Judge Richard Posner of the 7th Circuit in a case involving Federal Communications Commission rules about financial interest and syndication. The companies cited the fact that, while a law professor 15 years earlier, Posner gave expert testimony on behalf of CBS. Parties submitted briefs, and Posner issued an usual 2,800-word defense of his decision to remain on the case. A petition to review his decision en banc failed.
The latest congressional attention was sparked by Caperton v. A.T. Massey Coal Co. In Caperton, West Virginia, Chief Justice Brent Benjamin refused to step aside even though a major campaign contributor to the judge's election campaign was the chief executive of A.T. Massey. In June, the Supreme Court, in a 5-4 decision, found that the U.S. Constitution's due process clause required Benjamin's recusal.
Even though federal judges are appointed by the president, those pushing for changes said cases like Caperton threaten the public's confidence in the entire judiciary.
"These big recusal cases serve as exclamation points for the idea that judges are people, too," said Charles Geyh, a professor at Indiana University Maurer School of Law -- Bloomington who directed a recent American Bar Association study on recusals. Geyh was scheduled to testify before the House Judiciary Committee on Oct. 20 about recusals, but the hearing is being rescheduled.
One senior Democratic aide to the House Judiciary Committee said the lawmakers want to examine "whether there is a need to change several substantive and procedural aspects of federal judicial recusal laws so as to promote greater transparency to the public and within the judicial branch." The aide was not authorized to speak on the record and requested anonymity to discuss the committee's plans.
The time is right, Geyh argues, to think about changes. Nineteen states allow litigants to disqualify a judge without even having to state a reason. Eight states require that a second judge be the one to rule on a disqualification motion. "There's something weirdly paradoxical that a judge gets to rule on whether he's too partial to rule in a case," Geyh said. "If it becomes a contested matter, why not transfer it to another judge and increase the confidence level in the process?"
Those who favor an overhaul of the recusal process claim overwhelming public support. Justice at Stake, a D.C. nonprofit that advocates for judicial independence, released a poll this year in which 81 percent of respondents said that judges should not decide motions asking them to step aside.
Finding support among judges isn't so easy.
"I think, by and large, our system works fairly well," said Judge Reggie Walton of the U.S. District Court for the District of Columbia. Asked about a system where a judge automatically steps aside when asked, Walton said it could leave the door open to abuse by overzealous litigants looking for an extra advantage. "That becomes particularly problematic, because you don't want parties to judge-shop," he said.
According a 2008 ABA report on recusals, states that have an automatic recusal system use a variety of methods to deter judge-shopping. Alaska and South Dakota require parties to swear affidavits alleging bias. Other states limit challenges to one per side, while Montana permits sanctions against lawyers who file improper disqualification motions.
Chief Judge Edith Jones of the 5th U.S. Circuit Court of Appeals said moving the recusal decision to another judge will only waste time because such decisions are already reviewable by higher courts. "I really think this is a solution in search of a problem. There are other problems that the judiciary has that Congress may want to take a look at, such as the cost and delays in litigation," Jones said.
In recent years, judges have resisted legislative mandates about how the federal court system operates. They beat back a proposal by Rep. Jim Sensenbrenner, R-Wis., to create an inspector general for the judiciary. And, after Scalia's decision not to recuse in the Cheney case, then-Chief Justice William Rehnquist rejected a request from Conyers and Rep. Henry Waxman, D-Calif., to set up a system to review justices' recusal decisions. In a letter to two senators, Rehnquist also wrote that questions about Scalia's reasoning were "ill considered."
Still, congressional inquiries sometimes prompt action within the judiciary. In March, the Judicial Conference adopted revisions to its ethics code, in the latest response to recommendations from a committee led by Justice Stephen Breyer. The committee was set up in response to pressure from Capitol Hill.
'DEAD LETTER' LAW
The federal law setting out a standard for when a judge must recuse has remained largely the same since 1974, when it was modeled on an ABA proposal. A separate law that dates to 1949 says that a judge "shall proceed no further" in a case if a party files an affidavit alleging bias. But that's not how the system works in practice, and Geyh said the judiciary has found enough ways around the law that it's a "dead letter."
"You have statutes that set forth general standards. ... The question for Congress is: Do they think the courts have done a bad job interpreting them?" said Mayer Brown partner Andrew Frey, who represented A.T. Massey in the Caperton case.
Other procedural questions linger for Congress and the courts. If a federal judge refuses to step aside, should the standard on appeal be whether he abused his discretion, as it is in 28 states, or should it be lower? And should judges be encouraged, after ruling, to make a greater effort to explain their reasoning?
Any changes within the judiciary would go through the Judicial Conference's Committee on Codes of Conduct. Its chairwoman is Judge M. Margaret McKeown of the 9th Circuit, and she was scheduled to testify before Congress on the issue. McKeown declined an interview request. In a statement, she noted that the Committee on Codes of Conduct "provides ethics advice and training that includes issuance of more than 100 advisory opinions annually and response to nearly 1,000 informal requests for ethics advice."
James Sample, an associate professor at Hofstra University School of Law and a recusal expert, said the Caperton ruling is giving momentum to those who want to see more. The case, he said, "provides a compelling narrative of the risks that are posed when fairness -- or the perception of fairness -- suffers, whatever the source of the perceived unfairness may be. And Congress certainly has an interest in that."
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Judge Rules FTC Cannot Make Lawyers Comply With Identity Theft Laws
Jordan Weissmann, The National Law Journal
The Federal Trade Commission cannot force practicing lawyers to comply with new regulations aimed at curbing identity theft, a federal judge ruled Thursday at the U.S. District Court for the District of Columbia.
The decision offers a reprieve to law firms across the country, which faced a deadline this weekend to put in place programs to meet so-called "Red Flags Rule" requirements. The rules would have forced firms to verify the identities of potential clients.
The American Bar Association, represented by a Proskauer Rose team led by partner Steven Krane, argued that the rules would impose a serious burden on law firms, and sought an injunction and declaratory judgment finding that lawyers were not covered by the rule. The FTC contended that lawyers should be covered, because many of their billing practices, such as charging clients on a monthly basis rather than up front, made them "creditors."
Judge Reggie Walton said he had trouble accepting the FTC's definition of a creditor. He said that under their interpretation, a plumber who charges a customer after working on a toilet for two days would be also be considered a "creditor."
"I have a real problem with concluding that Congress intended to regulate lawyers when these statutes were enacted," Walton said.
Proskauer's Krane said the judge's ruling granted all of the relief the ABA sought in the case, but that he expected the FTC to try and appeal.
Asked whether they would appeal the ruling, FTC General Counsel Willard Tom said, "It's safe to assume the commission is going to consider its options very seriously. We think there is no reason lawyers should be exempt."