Alabama remains a big spender in court elections
By Eric Velasco, The Birmingham News
October 30, 2011
Despite an off-year in spending, the most recent election for Alabama Supreme Court ranked among the nation's costliest judicial races in 2009 and 2010, a study released last week shows.
Candidates in three races for the Alabama Supreme Court in 2010 spent nearly $3.2 million combined, according to the study, The New Politics of Judicial Elections 2009-2010.
By contrast, candidates spent twice that amount in 2004, the last time those court seats were contested.
"The Democrats in 2010 seemed to make a mostly token effort," said Charles Hall, spokesman for Justice at Stake, one of the study's authors and its editor. "But you still were No.2 nationally in candidate fundraising."
Outside groups spent another $374,000 on TV ads in Alabama to influence the 2010 election, bringing total spending to more than $3.5 million, the report said.
Alabama has set the national standard for expensive and negative judicial campaigns, according to Justice at Stake and the other watchdog groups behind the New Politics report, The Brennan Center for Justice and the National Institute on Money in State Politics.
Since 1993, special interest groups vying for control of the court have contributed more than $54 million -- nearly twice the amount in any other state -- to candidates for the Alabama Supreme Court. In that period, the once Democrat-controlled nine-member court has become all-Republican.
"It's out of control here in Alabama," said Jim Pratt, the president of the Alabama State Bar and author of an article on judicial campaign spending in the upcoming edition of the state bar publication, Alabama Lawyer. "This kind of spending gives us a black eye."
New Politics is a periodic study by the three non-partisan groups examining how campaign contributions and spending affect judicial elections. The most recent report found that during the 2009-2010 national judicial election cycle, Alabama also ranked:
•Second in number of campaign ads aired, about 9,200. Michigan led with nearly 11,000 campaign ads.
•Third in spending on campaign advertising. The $1.9 million spent in Alabama was exceeded by Michigan ($5.2 million) and Ohio ($2 million).
•Fourth in overall spending, including by outside interest groups.
"Even a quiet year in Alabama would make big noise in other states," Hall said. "A lot of money still gets thrown in. Alabama remains a national leader."
Justice for sale?
The amount of money spent by special interests on judicial elections creates the public perception that justice is for sale, said Bert Brandenburg, executive director of Justice at Stake, in a written statement.
He cited a national poll of 1,000 registered voters released this month by 20/20 Insight. In it, 83 percent said they believed campaign contributions have a "great deal" or "some" influence on judges' decisions. More than 90 percent said judges should not hear cases involving major financial supporters, the poll found.
"Americans expect courts to be fair and impartial," said Brandenburg, whose group does not endorse any specific judicial selection method. "They don't want campaign cash to influence courtroom decisions."
Calls by Alabama lawyers and judges for changes to judicial selection -- including non-partisan elections or a statewide system of appointments with periodic retention votes -- have gone nowhere politically.
"It's not an issue the public is closely following," said Michael DeBow, a professor at Cumberland School of Law and a proponent of judicial elections.
DeBow said he is skeptical of polls that conclude a justice-for-sale concern by the public. Poll outcomes sometimes depend on the question asked, he said.
"Ask people if it would be better if less money was collected by judicial candidates, most would say yes," DeBow said. "But that does not lead to the conclusion that we therefore should get rid of partisan judicial elections, or non-partisan elections or retention votes."
Asking people if they would be willing to give up their right to vote for judges would bring a different result, he said.
"The answer would be an overwhelming 'No,'" DeBow said. "People won't like losing the ability to vote on those positions."
Any perception that campaign contributions buy justice is incorrect and unfair to state judges, Pratt said.
But it's the main reason why the amount of money spent on court races in Alabama needs to be reduced, he said. Pratt plans to meet with business leaders in November to jump-start that effort.
"If Alabama wants to be No. 1 in football, that's fine," he said. "But when it comes to campaign spending on judicial races, Alabama does not need to be No. 1 or even No. 2."
See also: Study: Cost still high for state court races
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Attorneys mark pro bono week
By Michele Gerlach, Andalusia Star-News
October 29, 2011
Today marks the last day of the 2011 pro bono week, proclaimed locally by the Andalusia City Council, and designed to encourage attorneys to provide volunteer legal help.
John Peek, who serves as bar commissioner for the 22nd Judicial Circuit, said about 14 percent of the members of the Covington County Bar Association participate in the state bar’s Volunteer Lawyer’s Program (VLP), which provides legal assistance in civil matters.
Peek explained that the Alabama residents can call the toll-free VLP line, and the state bar does some filtering work to make sure there is a genuine need.
“Then they go to the list of people who have agreed to participate in the VLP, pull someone, and match them up.
Participating attorneys only have to agree to accept two VLP assignments per year, he said.
Given the current state of the economy, he said, there is a big push for pro bono work by the state bar association.
“This is literally Judge (Harold) Albritton’s baby,” Peek said, referring to the U.S. District Judge and Andalusia native. “He worked hard to promote this when he was state bar president.”
Just this month, the state bar announced it was naming an annual pro bono award for him, and presenting the first award to him.
“With the state of the economy, along with revenue cuts to legal service organizations, there are more people needing services and less ability of the system to provide those services.
“So we have to call on the Atticus Fitch model, and call on the person willing with help with no promise of recompense,” he said.
Peek said while not all of Covington County’s attorneys are officially listed with the VLP, most all of them do pro bono work.
“It is simply the most fulfilling work you can do, to reach down and pick somebody up and dust them off,” Peek said.
The VLP may be reached at 1-800-354-6154.
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Cusimano wins ‘Champion of Justice’ national award
October 31, 2011
Alabama attorney Greg Cusimano has been awarded one of the nation’s highest legal honors, the Leonard M. Ring Champion of Justice Award, by the American Association for Justice, the world’s largest trial bar. He is the only attorney in Alabama ever to receive the award.
His fellow attorneys selected him for his contributions to the civil justice system, overall character and integrity as well as his contributions to the public good and welfare. This award also is based on contributions to trial advocacy and to the legal profession. Cusimano is a partner in the law firm of Cusimano, Keener, Roberts, Knowles and Raley, Gadsden, and a principal in the national trial consulting firm Winning Works LLC.
He has received two of the three highest awards given by the AAJ.
Cusimano has handled many high-profile cases, including pro bono representation of families of those injured or killed in the 9/11 Twin Towers catastrophe.
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Selling Pieces of Law Firms to Investors
By JOHN ELIGON, The New York Times
October 28, 2011
Imagine an afternoon trip to a Wal-Mart: You pick up socks, a flat-screen television and a microwave meal. After checking out, you stop in the photo studio at the front of the store for a family portrait, and then shift one booth over to a lawyer, who drafts your will or real estate contract.
The concept may not be that far-fetched.
England began this month to allow groups other than lawyers to own and control law practices, and some of the country’s major retailers have begun offering legal services in their stores and online. Other countries, most notably Australia, already allow someone other than a lawyer to own a practice.
Now, with calls increasing for a similar model in the United States, the country’s chief legal ethics authority intends to propose a plan to permit law practices to have limited outside ownership.
Such a move could upend the industry’s stiff adherence to the partnership system in favor of full-fledged corporations that have access to the capital markets.
Some legal experts envision a marketplace that would become more customer-friendly, affordable and accessible for the average consumer: one-stop shops on street corners that bundle, for instance, legal, banking, accounting and real estate services; drive-through-style law firms with numerous branches across the country, similar to accounting shops like H&R Block; more complex legal services offered online; and, of course, retail stores with a legal unit.
Although Australia’s legal landscape has not shifted in this direction since it began allowing outside ownership of law firms in 2007, analysts are eagerly watching to see what will become of the legal market in England, which has more global prominence.
Regulators hope giving law practices access to private capital will allow them to invest in technology and other resources that could help them operate more efficiently and at cheaper rates.
“That surely expands the pool of individuals and organizations that have access to effective legal services,” said Mark Ross, the vice president of legal services at Integreon, an international legal process outsourcing company.
An ethics commission of the American Bar Association is expected to circulate by early November a draft proposal recommending that ethics rules be amended to allow other professional service providers — like accountants, economists and social workers — to partner with lawyers and own up to 25 percent of a law firm.
The current rules say that only lawyers may share directly in legal fees.
Individual states have the final say on whether to allow ownership by someone other than a lawyer. Washington is now the only jurisdiction in the United States that allows it. A bill to allow investments in law firms was introduced this year in North Carolina. One New York firm, Jacoby & Meyers, has sued the state’s court system to allow it to receive capital from outside investors.
Despite these efforts, many lawyers and legal analysts remain skeptical about the need for outside investors and are concerned about the ethical implications.
“The idea is that nonlawyers might not have the same codes of ethics,” said Andrew M. Perlman, a legal ethics professor at Suffolk University Law School and the chief reporter for the American Bar Association’s Ethics 20/20 commission, which is preparing the draft recommendation. “They might not be bound by the same sense of professional responsibility and might push the lawyers to do things that they should not be doing to chase the dollar rather than abiding by the rules of professional conduct.”
One ethical concern is about lawyer-client privilege, as shareholders would have an interest in knowing who the firm’s clients were and the specifics of their cases. Another is that lawyers might feel pressured, for example, to settle a lawsuit to make shareholders happy, no matter what the best interest of their client was.
But such thinking derives from the naïve assumption that the lawyers “who currently own law firms are not motivated by profit,” said Ken Fowlie, the executive director of Slater & Gordon, an Australian law firm that was the first in the world to become a publicly traded company.
If anything, going public has increased transparency, Mr. Fowlie said, and has separated the ownership from the lawyers, giving the lawyers more distance from business side pressures than in traditional partnerships.
Since listing on the Australian Stock Exchange in May 2007, Slater & Gordon’s revenue has more than tripled. It has added 30 offices for a total of 50 and has more than doubled its roster of employees to about 1,000.
Despite Slater & Gordon’s success, the largest Australian firms have not followed suit. Legal analysts attribute that to various factors, including volatile market conditions, the country’s tax laws and the fact that Australia is not an international legal and financial hub.
Yet it may also hint at a broader reluctance among major firms in England and the United States to allow private investors.
Top-tier firms already make a lot of money and could easily borrow from banks in the rare instance they might need capital, lawyers said.
“It’s a nonstarter for us,” said Chris Perrin, the general counsel for Clifford Chance, one of Britain’s largest firms. “Some of the firms that will do this in England who are the smaller to midsized firms may get an advantage because they may not be able to so readily borrow money from banks and they may be able to expand more quickly to provide a better service to their clients.”
Big firms may have cultural obstacles as well: lawyers are trained to avoid risk, and partners are unwilling to cede control or equity to outsiders.
Ralph Baxter, the chairman and chief executive of the law firm Orrick, said allowing law firms to accept outside capital would give them market value and could make them attractive to investors. Even if investors do not establish direct profit-sharing agreements, they can provide capital that law firms could use to invest in technology, streamline processes and expand, becoming more profitable businesses, Mr. Baxter said.
“The investors can sell their investment because it’s worth more,” he said.
Legal experts expect outside investment to be more eagerly sought by small law firms and those providing basic legal services, especially online.
The English law allowing nonlawyer ownership, the Legal Services Act, took effect on Oct. 6, but regulators are not expected to begin offering licenses for outside ownership until early next year. The act has been called the “Tesco law” after the major retail chain based in Britain.
Although Tesco has no plans to sell legal services in stores, other English retailers and professional service providers like WHSmith, the Co-Operative Group and Halifax have moved in that direction.
Consumers may gravitate toward a particular retailer for legal services because “they know what the brand stands for and what they’re going to get,” said Stephen Mayson, the director of the Legal Services Institute in England.
Bradford Hildebrandt, the president of Hildebrandt Consulting, a legal consulting firm, said he did not believe there was much unmet demand.
“The average American consumer doesn’t need lawyers all that often,” Mr. Hildebrandt said. If someone needs simple services like drafting a will or defending a small-claims lawsuit, “there’s plenty of law firms available for that market and they’re priced pretty reasonably,” he said.
Some lawyers and analysts believe that the tough economy and consumer demand for lower prices will spur the industry, even top-tier firms, to find ways to use private investment to become more competitive. And if English firms gain even a perceived advantage, experts said, calls to change the rules in the United States could increase.
Irwin Mitchell, one of Britain’s top 25 law firms, has said it plans to seek outside investment once the law allows it.
“The more sophisticated firms, the ones that will thrive in the future, they have become very much aware of what this new situation presents,” said Silvia Hodges, who teaches law firm management at Fordham Law School. “To say or to assume that the status quo is going to prevail and that we’re not going to have any changes, that doesn’t make any sense.”
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No, We Can't Let Just Anybody Be a Lawyer
By Jordan Weissmann, The Atlantic
October 27, 2011
Foes of regulation have found a new and tantalizing target: The legal industry.
In recent weeks, a pair of Brookings scholars, Clifford Winston and Robert Crandall, have been on a whistle-stop tour around the media, preaching the need to open up law firms to new competition by tearing down professional licensing requirements. In addition to their new book, First Thing We Do, Let's Deregulate All the Lawyers, they have published op-eds in The New York Times, Wall Street Journal, and The Huffington Post.
Their theory is pretty simple. Right now, they say, the legal industry works like a cartel. Requiring lawyers to graduate law school and pass a state bar exam artificially limits the supply of lawyers, pushing up prices. The process also blocks potential business innovations that would bring down costs. As they put it on HuffPo:
ABA occupational licensing requirements have allowed lawyers to create a club with a limited membership that is able to raise prices to consumers, which is how top lawyers can get away with charging upwards of $1000 per hour for their time.
The cure-all: Nix the diplomas and the tests. Let anybody practice, and use third party publications -- a "Zagats for lawyers" as they call it -- to police quality. New players will enter the market and costs will come down.
But don't we already have too many lawyers? As The Times and other papers have amply documented, the U.S. currently faces a serious glut of attorneys, many of whom are finding it nearly impossible to get work as firms see profits shrink and governments face tighter budgets. Winston and Crandall have a ready retort. By bringing down prices, demand for services will increase, and that will create more legal jobs.
There's a certain appeal to the idea. After all, as they point out, neither Abraham Lincoln nor Clarence Darrow would be allowed to practice law under our current regulatory regime. Plus everybody likes tweaking highly paid lawyers. And I will admit, some of their substance does have merit. But unfortunately, like most cure-alls that look good on paper, a lot of it is also completely bunk.
BIG LAW VS. LITTLE LAW
Before I go any further, a disclosure: I used to work at a law firm (not as an attorney). So I have a little, though not a ton, of experience dealing with the business end of the "industry" -- a word I use hesitantly. In reality, there is no single legal market, but rather many markets that exist under the broad umbrella of the "law." There's the world of corporate law, which itself splits between small/mid-size firms and the pinstriped land known as Big Law. Then there's the legal market for the rest of us -- the small firms and solo-practitioners who handle family wills and DUI cases. I could bore you to death with more nuances, but that's the basic division.
To get a sense of how the market divides up, we can look at numbers from the Census Bureau. According to their latest snapshot figures, collected in 2007, law offices made about $228 billion, up about 31% from 2002. Just $71 billion of those fees were paid by clients who were individuals or estates. Meanwhile, the 50 biggest law firms alone raked in $23 billion, up 60% since 2002. Finally, about half of all lawyers work at firms that make at least $10 million a year, many of which presumably serve corporate clients.
What do we learn from those figures? First, you're talking about an industry with two fairly distinct halves that need to be addressed separately. Second, the costs (and profits) are growing at the very top.
Letting more people become lawyers won't drive down costs in high-flying corporate law. And although it could help control legal fees for the rest of us, we could wind up allowing under-educated people to represent important cases for families who can't afford the high-flying treatment.
BIG LAW: IT'S ALL ABOUT TALENT...
When it comes to the cost of hiring a corporate lawyer, labor supply doesn't matter. Talent supply does.
There are plenty of firms, which charge a wide range of fees, who can help with a merger, financing, or bit of commercial litigation. The issue is finding someone who can handle the job. As Washingtonian magazine pointed out in an article, big companies don't trust just any attorney. They want the best. And becoming a top corporate lawyer takes not only smarts, but also a degree of sociopathic drive. Nobody who has spent their career working 80-100 hour weeks at the behest of impatient bankers is going to come cheap.
The reason companies are willing to shell out so much money for legal advice is that the biggest, most important cases don't get do-overs. As The Atlantic's own Megan McArdle explained, companies are willing to pay out more for work when there is only one chance to get it right. That's why investment bankers and Hollywood voice-over artists command high salaries. It's true for lawyers, too. When it's time for bet-the-company litigation -- say a slew of lawsuits over a potentially deadly drug -- cost is no object.
BIG LAW: ... BUT MORE TECH WOULD HELP
Here's where Winston and Crandall have a point: Non-JDs should be able to own firms. The additional capital from investors could help spur more technological advances in an industry that, for all its gains over the past decade, is still something of a digital backwater.
The problem with automating legal jobs is the same problem with automating any job: It means fewer workers. Tech advances would replace the people who bill the least and can't find work these days to begin with. Winston and Crandall say lower costs would create more demand and new jobs. But law firms are like funeral homes. You only go when you have to.
In the meantime, you still have to pay to get the top talent. That $1,000-per-hour attorney with 25 years of experience spearheading your company's patent lawsuit? He'd still be collecting his check, thank you very much.
LITTLE LAW: WHO WANTS EVEN MORE MEDIOCRE LAWYERS?
That brings us to the mass market, the small town lawyers with shingles in their yards and the solo criminal defenders who schlep to court in a baggy suit carrying a worn down briefcase. Even though a lot of these attorneys aren't necessarily making a Wall Street-level killing, their services are relatively expensive by the standards of most Americans.
Unfortunately, without licensing you'll welcome incompetent lawyers into the market. Winston and Crandall claim there's already a quality problem, citing the statistic that of the 125,000 professional complaints filed against attorneys in 2009, just 800 resulted in disbarment. So in their view, there is a football stadium's worth of bad lawyers going unpunished every year. But they're using a terrible metric. Aside from actual jail time, disbarment is the ultimate penalty for an attorney -- you're literally ending his career -- and there are plenty of lighter disciplinary measures that state bars can and do hand out. Dive a little deeper into the numbers, and you also find that most of the complaints were dismissed. Only 6,900 led to any kind of official charge.*
As for the Zagats idea, well, some companies are already trying it. There's Avvo, which the two authors highlight. There are also a slew of publications with names like Super Lawyers and Best Lawyers, which, for all their many issues, try and suss out the best attorneys in everything from divorce to energy law. Should these kinds of sources take over quality-control from the state? It comes down to whether you believe most consumers will be savvy enough to do their research and protect themselves.
There are other ways to improve the legal marketplace. You could shorten the time it takes to graduate law school. You could allow non-law school graduates to take the bar. Deregulation is a fashionable solution, but opening up the legal industry won't change Big Law and could create a lot of pain in Small Law.
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MY VIEW: Pro bono work enables equal justice, says James R. Pratt III – [Op-Ed]
Special to The Birmingham News
October 23, 2011
Before the economic downturn, it was estimated that 80 percent of the civil legal needs of the poor were not being met. That percentage has not improved today.
Nearly 423,000 low-income Alabama households face life-changing legal issues without help from a lawyer, even with their health, safety, housing or the wherewithal to keep their families together. These individuals often find they must fend for themselves in a complex system. Without a lawyer, the phrase "equal justice for all" becomes meaningless.
The needs of the poor, and those who are newly poor, are growing. Some states are taking steps to ensure the legal process is fair and just, a process that cannot happen without lawyers. Many who need the help of a lawyer have valid defenses but lack the ability to present their cases to the justice system.
In Alabama, our civil legal system offers two options for providing services for people unable to afford legal counsel: Legal Services Alabama, a statewide organization that provides free legal services to those who qualify, and Interest on Lawyers Trust Accounts (IOLTA)-funded legal assistance, which is money pooled together to pay for legal representation. Together, those options meet the legal needs of only 20 percent of those at or just above the poverty level.
The other 80 percent are left to find their way through the unfamiliar landscape of the judicial system. Not only do these self-represented litigants find that the outcomes to their cases often are not what they anticipated but, because they don't know legal procedure, they require more of the court's time. Large percentages do not resolve the legal issues and do not even come into court.
The State Bar and programs in Mobile, Huntsville, Montgomery and Birmingham are working hard to fill this "justice gap." In Montgomery, the State Bar's volunteers lawyer program is funded by the Alabama Law Foundation, the bar's charitable and philanthropic arm, and is administered by a staff member of the Alabama Bar. The other programs are associated with the local bar associations.
Statewide, the volunteers lawyers program has more than 4,500 lawyers who are enrolled. Collectively, they have contributed more than 10,000 hours of free legal service representing the poor.
This week, today through Oct. 29, lawyers from throughout Alabama will join with their counterparts in a national observance and celebration of pro bono (providing free legal services to the poor and underserved). Lawyers in each of the state's 42 judicial circuits will help homeless veterans resolve legal issues, counsel low-income elderly persons at senior citizen centers and prepare simple wills for first-responders as part of the "Wills for Heroes" program.
Military veterans returning home have enormous legal needs. So do thousands of struggling Alabama families that are fighting to keep their homes or access to health care. These are the kinds of legal matters that pro bono lawyers win for the neighbor next door. They are examples of how pro bono lawyers help keep families together and provide a measure of stability for society.
The national observance of the pro bono week is a celebration of what lawyers are doing to render service to our communities and is designed to recognize those who serve, volunteering their time and skills. The need has never been greater, given our economic times, so please acknowledge and congratulate the thousands of lawyers within our association who are working hard to achieve "equal justice for all."
James R. Pratt III is president of the 16,900-member Alabama State Bar and is a partner in the Birmingham firm of Hare Wynn Newell & Newton LLP. Email: firstname.lastname@example.org.
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Free Legal Services Available Next Week
Huntsville - Free legal services will be available to residents in Alabama the week October 23-29 as part of Pro Bono week. During the week of October 23rd through October 29th, lawyers from throughout Alabama will join with their counterparts in a national observance and celebration of Pro Bono (providing free legal services to the poor and underserved).
Lawyers in each of the state's 42 judicial circuits will participate in events like: conducting free legal clinics offering advice and counsel in areas such as elder and family law; discussing with community and civic groups the critical need for the Legislature to provide a continuous stream of funding for legal services and recruiting additional lawyers to volunteer to provide pro bono service.
Click here for a listing of all statewide events. You can also contact the Madison County Volunteer Lawyers Program at 256-539-2275.
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Operation Stand Down Huntsville offers homeless vets a weekend off of the streets
By Crystal Bonvillian, The Huntsville Times
October 23, 2011
HUNTSVILLE, Alabama -- Dave Carter has been unable to get back on his feet following a car crash and messy divorce. For James Andrews, it was an accident and the loss of an apartment that forced him and his wife to live out of their car for the past eight months.
Carter and Andrews, both homeless veterans, got a reprieve from the streets this weekend during the Fifth Annual Operation Stand Down Huntsville. The three-day event at Joe Davis Stadium is giving homeless vets within a 50-mile radius a place to get hot meals, a shower, a haircut, fresh clothes and access to resources that can help get them off the streets.
The event ends at noon today. Breakfast will be served at 7 a.m. with religious services at 9:30 a.m.
At 11 a.m., registered participants will be able to get a change of clothes and new boots. At noon, the American Red Cross will hand out box lunches.
Last year's event saw 53 homeless veterans show up at the stadium.
By mid-afternoon Saturday, this year's number was already up to 95. Dan Hamrick, a member of the Operation Stand Down advisory board, said it was far more than he expected.
"I counted on 50; I prayed for 75," Hamrick said.
According to the North Alabama Coalition for the Homeless, there are about 186 homeless veterans living on area streets, Hamrick said.
Using vans borrowed from local car dealerships, Operation Stand Down Huntsville was able to bring the veterans to the stadium, where they were able to sleep for the weekend. While there, they were given everything from mental health counseling to employment assistance.
Ten attorneys from the Madison County Volunteer Lawyers Program were on hand Friday to give the veterans legal advice. Angela Rawls, executive director of program, said the program provides free civil legal help for clients in poverty.
Rawls said many of the veterans needed help in dealing with military benefits issues.
"A lot of it was getting information from them to help them appeal denials of veterans benefits," Rawls said.
The lawyers also discussed other basic need problems with the veterans including Social Security benefits, housing issues, bankruptcy and credit collection. There were also questions related to domestic issues, like child support payments.
Rawls said the program's workload has picked with the recession.
"Unfortunately poverty leads to legal issues that can escalate pretty quickly if you don't have the resources to do something about it," she said.
The good news, Hamrick said, is that about six months ago, the board of directors of Stand Down voted to make the program a 12-month venture. The program has secured office space and, once it is up and running, homeless veterans will have year-round access to the food, clothing, medical evaluations and other resources they so badly need.
This weekend's help made a big impression on Andrews.
"I got a bed, clothes, food and I rested," Andrews said. "I got a spiritual awakening. Everything you need."
Rawls said Friday that it was difficult to see the number of local veterans who go without having those basic needs met.
"It's really disheartening to hear someone who served their country answer a question about where they live with, 'the streets,'" Rawls said.
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Mobile's legal eagles present "Broadway Briefs" fundraiser Oct. 27
October 24, 2011
MOBILE, Alabama — It's no secret that the world has plenty of lawyers to go around, and the abundance of lawyer-bashing jokes is a testament to our love-hate relationship with them.
But this is the week to love them, especially in Mobile, where 64 percent of the Mobile Bar Association members currently volunteer with the Volunteer Lawyers Program, a nonprofit organization.
The national average is only 20 percent, according to the new executive director, Shannon Shelley-Tremblay, and that, she noted should make Mobile proud.
The week of Oct. 23-29 is Pro Bono Week for the state of Alabama. Members of Alabama's legal community donated more than 12,000 hours in free legal services last year as well as generous financial contributions to legal aid organizations.
Pro Bono Week will feature legal aid clinics and service projects throughout the state, but here in Mobile, the focus is on the VLP, which will host its third annual "Broadway Briefs" dinner theater on Thursday from 6 to 9 p.m. at the Mobile Marriott on Airport Boulevard.
According to lawyer/director Barney March, the show has been a sellout in the past, with a room capacity of 200. For the third year in a row, the seasoned actors-by-night, lawyers-by-day will take to the stage to raise money and awareness for the VLP.
According to March, who also co-produces and directs the event, the combination of theatrical local talent comes together here, with VLP members such as March, Bill Watts, Jon Green and John Campbell sharing about 20 years of community theater experience.
"These tend to be fairly experienced actors so we can say 'here are your scenes ... see you at dress rehearsal,'" March explained. As March noted, the VLP is "preaching to the choir," as it is so widely supported by the Mobile Bar Association. But it's a lot of fun for the law community to see their co-workers on stage.
Chris Kern wrote one scene; another will be a musical treat; and another Monty Python-like script is from a 1923 play March discovered — "The Still Alarm."
With simple sets and props, the 40- to 60-minute show is low-frills but high on humor and broad appeal family entertainment.
The VLP's new executive director, Shannon Shelley-Tremblay, follows in the footsteps of Blakely Davis, the longtime administrator at VLP, who retired at the end of September.
Shelley-Tremblay is excited to be back in the legal field after several years in the nonprofit world, working for Life Line Family Counseling, University of South Alabama, and still serving on the domestic violence task force for the city.
She leads a paid staff of five at VLP and is joined by many office volunteers, including non-attorneys and students from local colleges.
"Being the administrative office for all 770 pro bono lawyers in Mobile is pretty exciting," she continued, noting that each lawyer chooses which kind of civil cases he or she wants to represent. The VLP website makes it easy for potential clients to see if their needs can be met, with an online intake system they can access from their home or the library.
"Access to justice is critical, and many people are still not even aware of the program," Shelley-Tremblay noted.
"The MBA VLP has created a 'gold standard' program providing free civil legal assistance to Mobile County residents who could not otherwise afford this service," said Davis, who encourages Mobilians to celebrate this outstanding program with her at "Broadway Briefs."
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Group offers free legal services to needy
October 26, 2011
As part of National Pro Bono Week, which runs through Saturday, lawyers will provide free legal services to the poor and underserved.
The Tuscaloosa County Bar Association, in conjunction with the Alabama State Bar’s Volunteer Lawyers Program will provide a Wills for Heroes clinic on Friday at the University of Alabama School of Law, said John Lloyd, president of the Tuscaloosa County Bar Association. Licensed attorney volunteers will provide free wills, powers of attorneys and healthcare directives to local police, firefighters and emergency medical personnel.
Wills for Heroes was created to show the legal community’s appreciation for first responders. Time slots are limited. To sign up for a time slot, email email@example.com. Pre-registration is required.
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State budget cuts clog criminal justice system
GREG BLUESTEIN, Associated Press
October 26, 2011
ATLANTA — Prosecutors are forced to ignore misdemeanor violations to pursue more serious crimes. Judges are delaying trials to cope with layoffs and strained staffing levels. And in some cases, those charged with violent crimes, even murder, are set free because caseloads are too heavy to ensure they receive a speedy trial.
Deep budget cuts to courts, public defenders, district attorney's and attorney general offices are testing the criminal justice system across the country. In the most extreme cases, public defenders are questioning whether their clients are getting a fair shake.
Exact figures on the extent of the cuts are hard to come by, but an American Bar Association report in August found that most states cut court funding 10 percent to 15 percent within the past three years. At least 26 states delayed filling open judgeships, while courts in 14 states were forced to lay off staff, said the report.
The National District Attorneys Association estimates that hundreds of millions of dollars in criminal justice funding and scores of positions have been cut amid the economic downturn, hampering the ability of authorities to investigate and prosecute cases.
"It's extremely frustrating. Frankly, the people that do these jobs have a lot of passion. They don't do these jobs for the money. They are in America's courtrooms every day to protect victims and do justice," said Scott Burns of the National District Attorneys Association. "And they're rewarded with terminations, furloughs and cuts in pay."
The ripple effects have spread far beyond criminal cases to even the most mundane court tasks, such as traffic violations and child custody petitions. The wait to process an uncontested divorce in San Francisco, for example, is expected to double to six months as the system struggles to absorb state budget cuts that have led to layoffs of 40 percent of the court's work force and the closing of 25 of 63 courtrooms.
Some wealthier residents are turning to private arbitrators to hear their cases, said Yasmine Mehmet, a family law attorney in San Francisco who advises some of her clients to settle disputes outside the public court system.
"We're seeing huge delays in getting trial dates and just getting standard documents processed," she said. "The courts are just so overwhelmed. They just don't have the people-power to handle these cases."
The cuts come as civil and criminal caseloads for many state and county systems have swelled. Maine had a 50 percent increase in civil cases during the last five years, in part because of foreclosures related to the nation's housing crisis, records show.
Iowa's court system is struggling to recover from cuts in 2009 that forced officials to lay off 120 workers and eliminate 100 vacant positions. Staffing levels there are now lower than in 1987, while district court filings since then have increased 66 percent.
Public defenders, whose offices also are absorbing cuts, are taking more clients.
"If you don't have enough lawyers to handle the cases, it leaves them open to speedy-trial challenges and ineffective assistance of counsel," said Ed Burnette, a vice president of the National Legal Aid & Defender Association.
Some of the lapses are testing speedy-trial rules, in some cases resulting in dismissals that otherwise are hard to win. In Georgia, trial and appellate courts have dismissed a handful of indictments against suspects accused of violent crimes because they could not be brought to trial fast enough.
In one case, a judge tossed out murder charges against two Atlanta men because it took Fulton County prosecutors four years to indict them after they were arrested and charged with a 2005 shooting. Local prosecutors say strained resources were partly to blame for the delay.
Legal agencies that represent the poor and depend on government grants also have been hit hard.
State funding for the Georgia Resource Center, which represents indigent death penalty defendants in post-conviction proceedings, has fallen by about $250,000 over three years. This year, the center fell short on a $300,000 grant from a foundation, forcing layoffs of a paralegal and an assistant administrator and the reduction to part-time status of a staff attorney.
"We've been running on a shoestring for years and we are minimally available to take care of all the guys on death row," said Brian Kammer, the center's executive director, who said he is writing grant applications at the same time he is representing death row inmates. "But with this kind of funding loss, we're getting crippled."
New York and California are among the states that have been hit hardest by budget cuts.
California's attorney general's office has considered eliminating units that work with local law enforcement agencies on gang and drug crimes as a way to address a projected $70 million in budget cut over two years.
After the San Francisco Superior Court laid off 67 staffers and shuttered courtrooms because of budget cuts, judges warned it could take residents hours just to pay a traffic fine in person. The court would have been forced to make deeper cuts had it not received an emergency $2.5 million loan from the state.
New York lawmakers slashed $170 million from the Office of Court Administration's $2.7 billion budget, forcing layoffs and a hiring freeze. Judges were ordered to halt proceedings at 4:30 p.m. sharp to control overtime pay, and courts also were told to call fewer potential jurors, who cost $40 a day.
Defendants in New York are generally supposed to see a judge within 24 hours of their arrest. But staff cuts left them waiting an average of about 50 hours over the summer, said Julie Fry, vice president of the Brooklyn division of the union representing Legal Aid lawyers.
"People were waiting for two, three and four days at a time. Some are waiting for administrative code violations, like riding bicycles on the sidewalk or sleeping on a subway train," she said.
"This really disrupts people's lives. Some of these people are on the cusp of being employed, and they can't afford missing a few days of work."
In Alabama, the state's top judge rescinded an order issued by his predecessor that would have dramatically reduced the schedules for civil and criminal trials, telling a local newspaper that the cost of additional jury trials was "not that significant." The move was aimed at coping with a budget that had dropped nearly $30 million in the last year.
"Victims should not become victims of our system," Judge Chuck Malone said in August.
The trial for one high-profile case there was delayed almost a year.
An Alabama man accused of killing his wife while on a honeymoon scuba diving trip in Australia was supposed to be in court in May, but his trial is now scheduled for February because of a shortage of bailiffs and other court personnel. Statewide, more than 250 people have been laid off from Alabama's trial courts.
In California, attorneys with the Sacramento County district attorney's office are taking on heavier caseloads while the office scales back popular services such as its community prosecution program, which dispatched staffers to meet with neighborhood associations to address quality-of-life issues such as public drunkenness.
Attorneys also refer misdemeanor cases to pretrial diversion programs, while marijuana possession, trespassing and other such crimes are often treated as mere infractions.
"We're doing it as best we can," said Jan Scully, the top prosecutor in the county where the state capital is located. "But doing it as best we can doesn't mean we're doing it as best we should be doing."
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State hopes mediation can ease court overload
By Scott Johnson, The Montgomery Advertiser
October 18, 2011
The state is observing Mediation Week this week, hailing a potential remedy for overloaded court dockets.
The Alabama Bar Association declared Sunday through Saturday to be Mediation Week, and Gov. Robert Bentley issued a proclamation naming Friday as Mediation Day.
The enthusiasm for mediation is inspired in large part by economics as the state's court system struggles with cutbacks and layoffs.
Bentley's proclamation notes the savings that could be gained by moving cases out of the court system given the current economic climate.
When a case goes to mediation, a neutral third party helps the two sides reach their own agreement rather than leaving the outcome up to a judge or jury.
Montgomery County Circuit Court Judge Tracy McCooey said mediation helps clear court dockets but also helps the people involved come to a satisfactory settlement.
"It resolves things a lot quicker. Mediation is a wonderful thing as often as you can use it," McCooey said.
Mediation is most often employed for civil cases, although the court more recently has begun to use it more often in certain criminal cases, McCooey said.
Misdemeanor cases often are referred from city court for mediation, she said.
They usually involve fairly minor offenses and often involve disputes between neighbors or family members, making them good candidates for mediation, she added.
Courts have been ordered to limit the number of weeks that juries meet each year, so judges must prioritize which cases are tried, McCooey said.
That usually means the civil cases are going to be pushed back as serious criminal trials move to the front of the line, said McCooey, who has presided over capital murder trials in three straight jury periods.
"If you have a civil case, you might be waiting years to go to trial," she said.
Mediation also helps eliminate the element of surprise that a court judgment can bring, said Deborah Kingrea, a partner in Perry, Dampf and Kingrea, a Fairhope-based mediation firm.
Instead, the parties involved can come up with their own solution, Kingrea said.
"People are much more likely to comply with an agreement they have reached," she said.
In fact, the terms of a settlement do not have to be monetary when reached through mediation, said Judy Keegan, executive director of the Alabama Center for Dispute Resolution.
Keegan related the story of a mother who had lost her teenage son and was pursuing legal action against another teenager who she believed was responsible.
The entire case turned when the surviving teen offered the mother a simple apology. The mother was moved by the teen's contrition.
"A terrible burden was lifted from (the mother's) shoulders," Keegan said.
The mother ended up accepting the offer of a scholarship fund in her son's name, Keegan said.
Keegan has championed the use of mediation since the Alabama Center for Dispute Resolution was created by order of the Alabama Supreme Court in 1994. She has been the director the entire time.
Since then, there has been a general upward trend in the use of mediation in Alabama.
State-registered mediators reported handling 4,512 cases in 2010, with about 73 percent of those cases being settled.
Mediation does cost the parties involved, because the mediators must be paid, Keegan said. Often, the settlement helps determine who pays the fees.
Mediation can also help parties avoid public scrutiny or awkward situations, Keegan said, citing a case that involved the splitting up of a church congregation that included judges and lawyers on both sides.
"If the circuit judge ruled, it would be bad for everybody," she said.
The sides ended up releasing a joint news release vowing that they would support each other, she said.
"The court could not have done what mediation did," she said.
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Are Law Schools and Bar Exams Necessary? – [Op-Ed]
By CLIFFORD WINSTON, The New York Times
October 25, 2011
FOR decades the legal industry has operated as a monopoly, which has been made possible by its self-imposed rules and state licensing restrictions — namely, the requirements that lawyers must graduate from an American Bar Association-accredited law school and pass a state bar examination. The industry claims these requirements are essential quality-control measures because consumers do not have sufficient information to judge in advance whether a lawyer is competent and honest. In reality, though, occupational licensure has been costly and ineffective; it misleads consumers about the quality of licensed lawyers and the potential for non-lawyers to provide able assistance.
Rather than improving quality, the barriers to entry exist simply to protect lawyers from competition with non-lawyers and firms that are not lawyer-owned — competition that could reduce legal costs and give the public greater access to legal assistance.
In fact, the existing legal licensing system doesn’t even do a great job at protecting clients from exploitation. In 2009, the state disciplinary agencies that cover the roughly one million lawyers practicing in the United States received more than 125,000 complaints, according to an A.B.A. survey. But only 800 of those complaints — a mere 0.6 percent — resulted in disbarment.
What if the barriers to entry were simply done away with?
Legal costs would be reduced because non-lawyers, who have not had to make a costly investment in a three-year legal education, would compete with lawyers, who in many states are the only options for basic services like drafting wills. Because they will have incurred much lower costs to enter the field — like taking an online course or attending a vocational school — and can operate as solo practitioners with minimal overhead, these non-lawyers would force prices to fall. The poor would benefit from the lower prices for non-criminal matters, and poor litigants, who might be unrepresented in criminal matters like hearings because they could not afford a lawyer and because of dwindling state legal aid, would be better off.
At the same time, if corporations — and not just law firms, now structured as partnerships — could provide legal representation, their technological sophistication and economies of scale could offer much more affordable services than established law firms do. These firms, in turn, would have to reduce prices to compete.
Of course, lower legal prices would cause new law school graduates to be paid less, but more jobs would be available for such graduates because the demand for lawyers would increase. And new graduates would begin their careers with less law-school debt, because alternative providers of legal education would force law schools to reduce tuition.
Leaving aside the matter of letting non-lawyers and non-lawyer-owned firms do legal work, more could be done to enhance consumer choice and attorney accountability. One practical measure for more effectively regulating the field and lowering costs would be for third parties to compete to provide accurate and useful information about the quality of lawyers. Third-party providers of legal services information could do a service similar to that provided by Consumer Reports and Zagat Survey and effectively regulate the legal profession by monitoring the law firms’ performance and effectiveness.
Consumers would be in a position to demand credible and complete information about a practitioner. Incompetent and dishonest lawyers would face immediate exposure over social and legal networks, thereby alerting other consumers of potential problems with their services. By sharing their experiences, consumers would understand more fully which credentials and evaluations are the most accurate and useful signals of competence and value.
Thanks to resistance from lawyers themselves, strong competition has not developed in the market for information. The efforts of a leading legal-information provider, Avvo, have been the target of a class-action suit filed by lawyers who disapprove of the firm’s ratings system. By threatening lawsuits and not cooperating with Avvo’s requests for information about attorneys’ licensing and disciplinary records, several states have impeded Avvo’s ability to provide information. But in the absence of an open, competitive approach to information about the quality of legal services, the existing licensing and discipline system creates a false sense of security.
To protect clients from bad lawyers, current barriers to entry try to separate the wheat from the chaff among potential legal practitioners. A market for information, though, would let consumers identify the chaff more precisely, saving more of the wheat. It is worth recalling that two of the finest lawyers and civil rights advocates our country has ever produced, Abraham Lincoln and Clarence Darrow, would not be allowed to practice law today under current rules. (Lincoln was self-taught; Darrow attended the University of Michigan Law School but did not graduate.) Eliminating entry barriers and allowing non-lawyers to perform legal services would, among many other gains, ensure that such talents have a place within our legal system.
Clifford Winston, an economist and a senior fellow at the Brookings Institution, is the co-author of “First Thing We Do, Let’s Deregulate All the Lawyers.”
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Indigents’ lawyers’ insurance threatened
By Sheryl Marsh, The Decatur Daily.com
October 21, 2011
Attorneys who represent indigent defendants in criminal cases were notified recently that they would not be insurable if they enter a new contract that removes liability for certain judicial officials, agencies and employees.
Morgan County Circuit Judge Glenn Thompson took action Wednesday to get the contract amended, which will stop cancellation of coverage.
Attorneys Insurance Mutual of the South Inc. sent letters to lawyers for whom it provides malpractice coverage.
“Please know that AIM, under its policy of insurance, cannot and does not insure against such contracted for liability,” the letter stated. “Additionally, it is important for you to know that any insured entering into a contract with a provision of this nature materially changes the risk under the insured’s policy of insurance which AIM has issued. In such event, AIM would be unable to continue insured’s coverage.”
Decatur Attorney Griff Belser is insured by AIM and received the letter. “I’ve talked with AIM, and they only have a problem with that one section,” said Belser. “I was told that the state was going to amend the contract. In the event that the state did not amend it, I would have gotten insurance elsewhere and kept the contract.”
An AIM official did not immediately return a phone call seeking comment.
More than two years ago, Morgan County’s judicial officials changed the payment method for court-appointed attorneys from fee voucher to contract.
Circuit Judge Glenn Thompson spearheaded the change, saying it would save taxpayer money.
During the last state legislative session, lawmakers passed a bill to create the Indigent Defense Committee, which established a blanket contract for court-appointed defendants in counties that use the contractual pay system.
A section would require attorneys to indemnify and hold harmless an extensive list of agencies and officials, including the Indigent Defense Committee and Administrative Office of courts.
“After I saw the contract, I contacted the assistant finance director and told him we’ve got to amend the contract or we’re going to lose attorneys,” Thompson said. “He reassured me that they would amend the contract.”
Thompson said Morgan County went to contract appointments because indigent defense payments had reached $1.2 million. He said the new system is working.
“It’s going great,” Thompson said. “I think we’re delivering excellent service to indigent defendants, and we have had fewer complaints from defendants than what we had under the old fee system.
“I haven’t run the numbers, but I’m told by the finance department that we’re leading the way statewide in saving money for the judicial system.”
Alabama has a unified judicial system, and as funding has been cut in recent years, staff sizes and resources have been reduced in each county.
Morgan County has 26 contracts for all levels of court, including circuit, district and juvenile.
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GOP candidates would cut federal judges’ power
By The Associated Press
October 23, 2011
Most of the Republican presidential candidates want to wipe away lifetime tenure for federal judges, cut the budgets of courts that displease them or allow Congress to override Supreme Court rulings on constitutional issues.
Any one of those proposals would significantly undercut the independence and authority of federal judges. Many of the ideas have been advanced before in campaigns to court conservative voters.
This time, though, six of the eight GOP candidates are backing some or all of those limits on judges, even though judges appointed by Republican presidents hold a majority on the Supreme Court and throughout the federal system.
A group that works for judicial independence says the proposals would make judges “accountable to politicians, not the Constitution.”
Bert Brandenburg, executive director of the Justice at Stake Campaign, said, “Debates like these could threaten to lead to a new cycle of attempts to politicize the courts.”
Only the former governors in the race, Mitt Romney of Massachusetts and Jon Huntsman of Utah, have not attacked federal judges in their campaigns.
Former House Speaker Newt Gingrich has been the most outspoken critic of the courts. He would summon judges before Congress to explain their decisions and consider impeaching judges over their rulings.
Texas Gov. Rick Perry, in his book “Fed Up,” has called for an end to lifetime tenure for federal judges and referred to the high court as “nine oligarchs in robes.”
Minnesota Rep. Michelle Bachmann, in criticizing Iowa judges who ruled same-sex marriage legal in the state, described judges as “black-robed masters.” Bachmann said Congress should prevent the courts from getting involved in the fight over same-sex marriage, among other high-profile social issues.
Texas Rep. Ron Paul has advocated cutting the jurisdiction of federal courts and has introduced a bill to that effect in the House. A judge’s violation of Paul’s proposed “We the People Act” would be “an impeachable offense.”
Paul told Iowans in March that the country ought to come up with a way for voters to remove federal judges from office, much like several states that have retention elections for state judges
At a Tea Party forum in South Carolina in September, Republican candidate Herman Cain joined Bachmann and Gingrich in endorsing legislation that would overturn the high court’s rulings declaring that women have a constitutional right to abortion. The proposal challenges the widely held view that Congress can’t overrule the court’s constitutional holdings.
Former Pennsylvania Sen. Rick Santorum has been particularly critical of the San Francisco-based 9th U.S. Circuit Court of Appeals, which has a preponderance of Democratic appointees. “That court is rogue. It’s a pox on the Western part of our country,” Santorum said at a Tea Party event in February. He pledged to sign into law a bill abolishing the appeals court.
Gingrich, too, has reserved special criticism for the 9th Circuit, saying that by squeezing its budget, Congress could force the court’s judges to give up their law clerks and even turn off the lights in their courtrooms and offices.
At the Values Voters Summit in Washington in early October, Gingrich also objected to last year’s ruling that struck down a ban on gay marriage that was approved by California voters, and an order by a judge in San Antonio barring public prayer at a high school graduation.
“Now, the idea of an American judge becoming a dictator of words is so alien to our traditions and such a violation of our Constitution ... that that particular judge should be removed from office summarily,” Gingrich said to applause.
Complaints about Supreme Court and lower court rulings have a long and bipartisan history in the United States. President Franklin Roosevelt’s court-packing plan to increase the number of high court justices to 15 from nine grew out of decisions striking down parts of the New Deal.
Sheldon Goldman, a political science professor at the University of Massachusetts at Amherst, said these efforts generally fail. “When push comes to shove, aside from some of this demagoguery on the campaign trail, most Americans are genuinely conservative. That is, they don’t want to undermine the Constitution, they want to abide by it,” Goldman said.
More recently, Republican candidates since Richard Nixon in his 1968 campaign for the presidency have pledged to appoint conservative judges to counteract their perception of a judiciary dominated by liberal activists.
But Republicans have controlled the White House for 20 of the past 30 years, and the party breakdown on the federal bench reflects their edge, 437 appointees to 352 judges appointed by Democratic presidents.
Barry Friedman, a New York University law professor who has written a book about the relationship between public opinion and the high court, said he is puzzled by the effort to take federal courts out of the picture. He said that would increase the influence of more liberal-leaning state courts.
“The wonder of it coming from the Republicans now is that we have what is easily the most conservative Supreme Court in many, many years. This is nothing more than red meat they throw to the conservative base,” Friedman said.
Brandenburg’s not-for-profit group has been critical of both parties on what it sees as efforts to undermine judicial independence. He noted that Congress passed a 2005 law with bipartisan support that sought to pressure federal courts to weigh in on the protracted family fight over keeping Terri Schiavo alive, 15 years after she slipped into what her doctors called a permanent vegetative state.
“That was both parties of Congress running as fast as they could to placate a small number of people who were angry at the courts,” Brandenburg said. In Schiavo’s case, a Florida state judge ordered Schiavo’s feeding tube removed and federal courts refused to step in, even after Congress acted.
The Birmingham News
On the Move
October 11, 2011
• Charles Price II, an attorney with Haskell Slaughter Young & Rediker LLC, has been appointed to the Alabama State Bar's Future of the Profession Committee. Price focuses his practice on general civil litigation. He joined the firm in 2005 after serving on the staff of the Alabama Securities Commission.
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The Glass Ceiling – [Editorial]
The New York Times
October 8, 2011
Thirty years ago this month, Sandra Day O’Connor heard her first cases on the Supreme Court. Many thought her appointment would herald the shattering of the law’s glass ceiling, but at best it only cracked.
Decades later, the profession is still resistant to putting women in leadership positions, and many women have abandoned the law altogether. Women still make up less than one-third of American lawyers, even though they have made up almost half of new law-school graduates for the last two decades. In law firms, women make up 45 percent of associates but only 15 percent of equity partners and 6 percent of equity partners at the 200 largest firms.
More women have joined the bench in the last three decades, but progress in that arena has been slow as well. While three women are on the Supreme Court, as of last year women made up only 22 percent of the federal judiciary and 26 percent of state judges. No state has equal representation of women on the bench.
Women with children are having the hardest time staying in the profession. They are half as likely to be hired, a recent Cornell study found, when compared with childless women with similar qualifications.
Even when women do not have children, bias is reflected in the major factors that shape careers in law firms — evaluations, assignments and compensation — according to a landmark report from the American Bar Association’s Commission on Women in the Profession.
The presumption that women are less devoted to their jobs means that they often have to show more evidence of achievement than men. Even when their legal work is outstanding, women have tended to get fewer opportunities because of how work is assigned through the buddy system. And pay for female lawyers is generally less — the median income is 74 percent of what men earn — with the gap widening as they move higher. Another study has found that some 90 percent of female lawyers report having encountered sex discrimination in the profession, a percentage that has not decreased since the 1970s.
Some women do succeed in private law firms, especially if they fit the traditional model of the lawyer who can leave family responsibilities to a stay-at-home partner or a nanny. But that model represents only one-sixth of the work force, and is outmoded. There are ways to retain more women in the law. Flexible schedules can work well, but to end their stigma men need to choose to use them as well as women. And firms must have transparent systems for evaluating, assigning and paying lawyers.
Legal employers should understand that unless they retain a higher share of women, the profession will continue to lose talented lawyers. It will fail to be a profession that embodies gender equality — what many thought the O’Connor selection promised to bring.
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Virginia State Bar’s crackdown on lawyer’s blog raises questions
By Catherine Ho, Washington Post
October 9, 2011
Virginia lawyers who blog about their cases, beware: the state bar may come after you for inappropriate advertising.
At least that’s the message the Virginia State Bar seems to be sending in a case against Richmond criminal defense attorney Horace Hunter. The bar has brought a misconduct charge against Hunter, who blogs on his firm’s Web site about cases he’s worked on, as well as national and local criminal justice issues. Bar authorities contend the blog constitutes advertisement and should include a disclaimer saying it’s an ad. Hunter argues the blog is news and commentary, and the bar’s attempt to get him to tack on a disclaimer is a violation of his First Amendment rights.
One purpose of the Web site is to market the firm and attract business, so any discussion of Hunter’s cases is considered advertising and must include a disclaimer “that puts the case results in a context that is not misleading,” the charge said.
Hunter’s case, which is scheduled for a hearing Oct. 18, appears to be the first time the Virginia State Bar has lodged a formal charge against an attorney over blogging and whether it violates advertising rules. State bar counsel Edward Davis would neither confirm nor deny the existence of previous charges against lawyers over blogs and advertising, but there is no record of disciplinary action against Virginia attorneys regarding the matter, according to the bar’s archives of disciplinary actions dating back to 1999. The bar can suspend or disbar attorneys found in violation of legal ethics.
Davis declined to comment on the pending case.
Hunter’s case has some lawyers — for whom blogging has become commonplace — as well as free speech and social media law experts questioning whether the bar is overreaching in its regulation of online speech in the social media age.
State bars prohibit misleading advertising, requiring lawyers when listing previous wins to include disclaimers saying every case is different and that prior results don’t guarantee future success, said Rodney Smolla, a leading First Amendment scholar and president of Furman University in South Carolina. But Smolla, a former dean at Washington and Lee University School of Law who filed a brief before the state bar on Hunter’s behalf, said Hunter’s blog resembles journalism more than advertising.
“I don’t think the mere fact that a lawyer has been involved in a case means everything a lawyer says about it is an advertisement for future clients,” he said. “Lawyers talk about their own cases all the time, in public settings, publications … and members of the public are able to take that speech for what it’s worth.”
Social media rules
The bar’s position in Hunter’s case conflicts with the general movement in legal advertising that encourages the use of social media without placing undue burdens on lawyers, said Brad Shear, a Bethesda attorney who specializes in social media law.
The American Bar Association’s Commission on Ethics recently said no new restrictions were necessary to regulate lawyers’ use of technology and client development, and that prohibiting Internet and other electronic advertising would “impede the flow of information about legal services to many sectors of the public. (See the commission’s June recommendations here).
“If the Virginia Bar believes that blogs that discuss news and commentary should have stringent disclaimers that precede the content because they are deemed to be advertisements, then the Virginia Bar may have to require that every blog post, blog comments on other blogs and other user-generated content by an attorney to contain a strict disclaimer,” said Shear, who has no ties to the Hunter case. “It becomes a slippery slope.”
The Virginia State Bar is limited to regulating practices and disciplining lawyers in Virginia, but Smolla said its decision could set precedent in any jurisdiction.
“I don’t know if other bar authorities would or wouldn’t feel they’d want to prosecute these things, but it’d be a warning sign that this kind of activity could draw some sort of disciplinary action,” he said. “It could exert a chilling effect on all lawyers that blog on litigation results, particularly if those results are involving matters on which they’ve worked as a lawyer.”
Bob O’Neil, founder and former director of the Thomas Jefferson Center for the Protection of Free Expression and former president of the University of Virginia, said Hunter’s blog is not misleading, and called the bar’s standard on disclaimers “excessive.”
“That strikes me as overkill,” said O’Neil, who is not involved in the case. “Pretty innocent stuff like Hunter’s [blog], I don’t think that’s regulable.”
The charge, filed in March, also says Hunter blogged about information that would be “embarrassing” or “detrimental” to his clients, including using a pseduonym to discuss the case of a juvenile client. Hunter failed to show that he had obtained his clients’ consent to talk about the cases, the charge said. Hunter calls the claims “frivolous” and maintains that the matters discussed on his blog are public, and that he had the permission of the juvenile’s parents to talk about the case.
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Do law schools defraud students? – [Op-ed]
By KYLE MCENTEE & PATRICK J. LYNCH, The New York Post
October 12, 2011
New York Law School and two other law schools are staring down the barrel of consumer-fraud class-action lawsuits. Attorneys representing recent graduates plan to soon add at least 15 more schools, including five in New York, to the list.
As the economy flounders and a jobs crisis looms for many employment sectors, law-school graduates are taking to the courts because they don’t have jobs.
It’s the economy, stupid? If only that were the whole story. The suits center on how law schools recruit students: Many encourage consumers to believe a law degree is their “magic ticket” to financial security.
The complaints accuse schools of misrepresenting job-placement statistics and violating state consumer-protection laws. They allege that schools provide information designed to mislead, deceive and prompt consumers into attending programs they’d otherwise have avoided.
In other words, these suits are about showing law schools that they don’t get more leeway than other industries in advertising the value of their services.
The shoddy-stats problem long predates the recession. Many laws schools have consistently advertised employment rates of 90 percent or more -- numbers that count bar-tending jobs along with ones that actually require a law degree.
The American Bar Association accredits these schools, but doesn’t regulate how they advertise starting salaries. So schools can trumpet their graduates’ “median” starting salary of $160,000 on the basis of just 15 percent of the class.
And none of this is disclosed to the consumer.
Shouldn’t these graduates have known better than to rely on six-figure salaries and near-perfect employment rates as reason to apply to law school? Perhaps. But schools know from experience that applicants are optimistic -- that consumers will believe inflated statistics that comport with those magic-ticket expectations. That a law school would be less than forthright simply does not register on people’s radars.
And despite general misgivings about lawyers, eager young college grads meet encouragement every step of the way. Ask an elementary-school child’s parents whether they want their kid to go to law school someday and you begin to understand what makes law school so compelling.
This doesn’t paint prospective law students or their families in an enviable light. They are a product of a prestige-obsessed culture caught in an unwise investment decision. But sympathy isn’t needed for legal redress. Schools have failed to follow very basic rules for advertising their services. And now they could find themselves on the hook for millions of dollars.
These problems affect more than just the legal profession. This year, ABA-approved law schools will get at least $4 billion in taxpayer support, thanks to the government’s decision in 2010 to directly lend to students. But when graduates can’t find jobs that allow full loan repayment, they either default or sign up for hardship programs. The taxpayers are on the hook for the lost interest income and unpaid loan principal.
These lawsuits and the fraudulent behavior they target are both symptomatic of greater structural problems with legal education. Tuition has far outpaced inflation, and it’s not clear whether law schools can figure out how to function if they must reduce the cost of obtaining a law degree.
Whether tuition drops because consumers finally receive the real employment statistics, or because the government stops lending essentially unlimited amounts of money to students, schools will need to either reimagine the kind of education they provide or close down.
In all of this mess, one thing is for sure: Continued pressure from lawsuits, Congress and other reform advocates will push law schools to honestly evaluate the American legal-education model. And reimagining a broken model will take a lot more than simply getting people their day in court.
Kyle McEntee is executive director of Law School Transparency (lawschooltransparency.com), a nonprofit dedicated to advocating for reform in legal education. Patrick J. Lynch is the group’s policy director and an environmental attorney in Santiago, Chile.
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Scott approves loan to keep Fla. courts afloat
By BILL KACZOR, Associated Press
October 12, 2011
TALLAHASSEE, Fla. -- Gov. Rick Scott has approved a $45.6 million loan so Florida's court system can avoid an impending deficit due mainly to a decline in mortgage foreclosure filing fees.
In a letter Tuesday to Supreme Court Chief Justice Charles Canady, Scott's budget director, Jerry McDaniel, wrote that the money must be repaid by next June 30 when the current budget year ends.
The court system's shortfall is expected to total $159 million by then. Canady in the meantime plans to ask the Legislature for additional funds to repay the loan and cover the rest of the shortfall. Lawmakers will convene their annual 60-day session on Jan. 10.
It's the second time this year the courts have borrowed money from the state's reserve accounts largely because revenue from foreclosure fees failed to meet expectations.
Scott approved a $19.5 million loan in April to tide the courts over until the end of the last budget year because of a $72.3 million shortfall. Scott also approved a $14 million funding shift within the court system. The courts then cut spending and received a supplemental appropriation from the Legislature to repay the loan and cover the rest of the shortfall.
The courts rely more heavily on fees from foreclosure filings because they are higher than those for other kinds of cases.
Foreclosures, though, have been very volatile. A large number of cases have clogged Florida's courts since the housing bubble burst, but they dropped off last year. Lenders held back on new cases due to problems that included lost paperwork and erroneous filings.
State economists expected the filings to pick up in the new budget year. It didn't happen to the extent expected so they've now reduced the court system's revenue forecast.
The current budget includes a provision requiring court officials to work with local court clerks on developing "appropriate revenue streams" to pay for both entities and report back to the Legislature by Nov. 1, McDaniel wrote in his letter to the chief justice.
He asked Canady to also send a copy of the report to the governor's office to help Scott address court funding in his annual budget recommendations to the Legislature.
Attorneys declare Pro Bono Week
By Lydia Grimes, The Brewton Standard
October 5, 2011
Attorneys with the Escambia County Bar Association will be celebrating Pro Bono Week later this month.
Brewton Mayor Ted Jennings has signed a proclamation declaring the week of Oct. 23-29 as Pro Bono Week.
According to the proclamation, one out of four of the 940,872 Alabamians who live in poverty has experienced legal problems. The majority of those civil problems are consumer issues (creditor, harassment, utility non-payment, bankruptcy issues), health issues (Medicaid, government insurance, nursing home), family law issues (divorce, child support/custody, abuse), employment issues (unemployment benefits, pension, lost job), and housing issues (unsatisfactory repairs, foreclosure, eviction, poor living conditions).
Also, according to the mayor’s office, 12.6 percent of the citizens in Brewton live in poverty and there are fewer than 55 paid legal aid lawyers to serve the low-income households in the whole state of Alabama.
Each year the Alabama State Bar and its Pro Bono Celebration Task Force, with the help of local bar associations statewide sets aside some time to offer Pro Bono help for the low-income families.
This year, Oct. 23-29 has been designated as Pro Bono Week. The Escambia County Bar Association and the Alabama State Bar will sponsor a free legal clinic to those who are low-income. The clinic will be held during the week of Oct. 23-29 on the third floor of the Escambia County Courthouse from 8 a.m. to noon and from 1 p.m. to 5 p.m. on Oct. 26 and Oct 27, Attorneys from the Escambia County Bar Association will be available to provide free legal advice and, if services are required, refer the client the Volunteer Lawyers Program of the Alabama State Bar, which provides free legal services for low-income families. In addition, the Alabama State Bar has a Wills for Heroes Program, where policemen, firemen, or veterans who do not have a will, may stop by for a free will.
The proclamation also stated that 38 percent of the members of the Escambia County legal community donate their time and talents in free legal service each year, and there is still a huge unmet need for legal assistance for the disadvantaged in the area.
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How we pick judges is good for business – [Op-ed]
By Doug Buttrey, The Tennessean (Nashville)
October 1, 2011
Earlier this year, Tennesseans spoke out. Under the leadership of Gov. Bill Haslam, they made it clear that the state needs civil justice reform as an important way to grow jobs.
Both houses of the Tennessee General Assembly agreed, and the Tennessee Civil Justice Act today becomes the law of the land.
However, now is not the time to relax in our quest to make Tennessee the No. 1 state in job growth. Our new tort reform law is likely to improve our No. 19 status in the next U.S. Chamber of Commerce survey. That is critical.
Working annually with its Institute for Legal Reform, the chamber surveys corporate leaders to assess the lawsuit climate in each state. The survey is considered most influential among businesses making decisions about where to locate. It looks at a state’s laws governing tort and contract litigation, class-action suits, damages, discovery and judges’ impartiality and competence.
But with more than 30 states passing tort-reform laws this year, how do we continue to make Tennessee stand out to business leaders as they decide where to locate? The answer: We need to keep the key features of the present system Tennessee employs to select appellate judges.
Contested, partisan and costly elections are not the way to go. Job creators place a high value on consistency, integrity and predictability in running their businesses, and they value the same attributes in the judiciary. The U.S. Chamber and the American Tort Reform Association have concluded that Tennessee’s current judicial-selection process is preferred for business recruitment and job creation.
According to a 2009 study by the U.S. Chamber’s Institute for Legal Reform, “the quality of justice in our state courts is of critical importance to the entire business community.” If judges are biased, our system of justice fails. Judges who receive large campaign contributions cannot be impartial.
Moreover, our court dockets are overburdened. We need our appellate judges to decide cases and write decisions rather than be campaigning across the state and raising millions of dollars to get re-elected. Tennessee’s current system is efficient and cost-effective.
Indeed, if you look at the states at the bottom of U.S. Chamber survey list — California, Alabama, Mississippi, Louisiana and West Virginia — there is a strong correlation between their lowly positions and the fact that all but California use contested, partisan elections to select their appellate judges.
Conversely, of the five states on top in the survey — Delaware, North Dakota, Nebraska, Indiana and Iowa — all but North Dakota use a merit-selection system for judges similar to Tennessee.
Tennessee should stay smart and help create jobs by enhancing our business climate. We can do that by maintaining our current system of selecting appellate judges. Costly, contested, partisan elections will only take us backward and hurt job creation.
Doug Buttrey is executive director of Tennesseans for Economic Growth, a statewide, not-for-profit business coalition. The organization’s goal is to attract more jobs to Tennessee to help build better communities in our state.
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Online legal firm in Bar fight
By Craig Jarvis, Raleigh News & Observer
October 5, 2011
RALEIGH - An online legal services company is suing the N.C. State Bar over a long-simmering standoff that highlights the uneasy relationship between private-practice lawyers and inexpensive, do-it-yourself online help for simple law problems.
The lawsuit by LegalZoom.com, filed in Wake County Superior Court, asks that a judge declare that the company is entitled to sell standard legal forms on its website and that it be allowed to register in this state to sell prepaid legal services.
LegalZoom attorneys say the lawsuit raises issues that have never before been decided by a court, including whether an online services provider is engaged in the unauthorized practice of law for offering the same product as off-the-shelf books and software. They say the suit also could become a landmark business case because of the state constitutional anti-trust and property rights issues it raises.
"This is the first time in their history they have filed a lawsuit," Raleigh attorney A.P. Carlton Jr. said Tuesday of LegalZoom. "They did not want to do this, but after being rebuffed at every turn, they had to take a look at their options from a business perspective. What this lawsuit is about is the principle of being able to engage in business in North Carolina free of unlawful government restraint."
A representative of the State Bar declined Tuesday to comment on the lawsuit.
LegalZoom describes itself as the nation's leading provider of legal document services and legal plans. Based in California, the company was co-founded by Robert Shapiro, one of O.J. Simpson's criminal defense attorneys, in 2001. The company reported serving half a million people by 2009, and that figure has more than doubled since.
LegalZoom's clash with North Carolina began in 2003, when a committee of the State Bar, which regulates lawyers, notified LegalZoom it was opening an inquiry into whether the company's online legal documents service constituted the unauthorized practice of law. LegalZoom explained in a letter that it didn't provide legal services, just forms that customers can select on their own.
Later that year, the State Bar committee found insufficient evidence to pursue the matter. Then in January 2007, the Bar committee notified the firm it had opened a second inquiry over LegalZoom forming corporations for its customers in this state. The company responded that its self-help business model hadn't changed since the committee looked into the matter four years earlier.
Nearly a year later, the Bar committee issued a cease-and-desist letter stating LegalZoom was engaged in the unauthorized practice of law. The company responded that there were inaccuracies in the State Bar letter, stressing that its services are automated and don't involve legal advice.
The Bar never replied and never took further action, such as seeking a court injunction or criminal charges, the lawsuit says.
The issue was still unresolved in July 2010, when LegalZoom attempted to register in North Carolina for a new service: offering prepaid legal plans for individuals and small businesses. The service costs as little as $15 a month, for which customers can obtain legal advice over the telephone and other simple services from an attorney in their state.
The Bar declined to register the company, saying it appeared the company was still doing business in a manner that violated the 2008 cease-and-desist letter. LegalZoom replied that the law doesn't give the Bar discretion not to register applicants or render legal opinions about them. LegalZoom also contends the cease-and-desist letter carries no weight without a judge's order.
The standoff went on until August, when Carlton called the State Bar president and asked to meet with the organization to resolve the dispute. A few days later president Anthony di Santi said Bar officers didn't think it would be productive to meet, the suit says. A detailed letter outlining the Bar's position would be forthcoming, di Santi said, but LegalZoom has not yet received it, the suit says.
Meanwhile, the suit says, the Bar's cease-and-desist letter remains posted on its website and has been cited by the Pennsylvania State Bar as the basis for its opinion that online legal document preparation should be prohibited, and by a class-action lawsuit against LegalZoom in Missouri.
Word of mouth in the legal and regulatory communities and news media coverage about the letter has further harmed LegalZoom, the suit says. The lawsuit notes that the General Assembly this year passed a law that took effect Saturday that allows people to sue over the unauthorized practice of law, and one lawyer has publicly said LegalZoom might be an appropriate target for such a lawsuit.
"My client has been very patient," Carlton said. "They have tried to go along to get along."
The lawsuit is asking that a Wake County Superior Court judge with an expertise in complex constitutional and regulatory law be appointed to handle the case from beginning to end.
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