Birmingham lawyers, judges help those in need of legal services
Roy L. Williams, The Birmingham News
September 25, 2010
Hard times are fueling a surge in demand for legal services -- but making it impossible for some people to pay for legal help.
An arm of the Birmingham Bar Association called the Birmingham Volunteer Lawyers Program has seen a sharp increase in folks seeking free legal services. Two weeks ago, members of the group assisted 40 individuals at a free bankruptcy clinic.
On Oct. 6, at Balch & Bingham's offices downtown, members will host a family law clinic for individuals needing advice on divorce and other family law matters, said Kelli Mauro, executive director of the Birmingham Volunteer Lawyers Program.
Greg Hawley, president of the Birmingham Bar Association, said many lawyers and their firms are embracing pro-bono services in response to a growing need from folks caught up in the economic downturn.
Hawley, a partner at White Arnold & Dowd PC, said Alabama's rules of professional conduct maintain that a lawyer should be mindful of the fact that sometimes people cannot afford legal assistance.
Birmingham federal judges recently donated $25,000 to be split equally between the Legal Aid Society and the Birmingham Volunteer Lawyers Program to help the public.
"The message from the federal judges was clear: If you lawyers are willing to give your time, we will give money to help administer the process," Hawley said.
The Oct.6 event, scheduled to run from 2 p.m. to 4:30 p.m., is sponsored by the Alabama State Bar Family Law Section, which is chaired by Homewood lawyer Candace Peeples, and organizers hope to serve 75 clients, Mauro said. The Pro Bono Projects committee of the Family Law Section is co-chaired by Jessica Kirk Drennan of the Crittenden Firm and Mauro.
All clients accepted into the Birmingham Volunteer Lawyers Program must be pre-screened. Participants must be considered low-income, and meet other standards.
"The need for our program is so great," Mauro said. "We hold numerous clinics each year in different areas of the law."
For more information, call the program at 250-5198 or e-mail Mauro at firstname.lastname@example.org.
- - -
September 26, 2010
For the second year in a row, the Tuscaloosa County Bar Association has received the Local Bar Achievement Award in recognition of its charitable work, which includes contributions to the Tuscaloosa Police Athletic League after-school program for at-risk children and sponsoring the E! Huskateers at Eastwood Middle School, a program that teaches drug prevention, healthy living and the value of education. The award also recognized the bar association’s work in promoting access to justice through its Wills for Heroes program, as well as the participation by association members in offering continuing legal education programs for its members and lawyers in surrounding counties.
The Tuscaloosa association was the only mid-sized bar association in the state to receive this award, which is given by the Alabama State Bar.
- - -
Voters Moving to Oust Judges Over Decisions
By A.G. SULZBERGER, The New York Times
September 24, 2010
DES MOINES — After the State Supreme Court here stunned the nation by making this the first state in the heartland to allow same-sex marriage, Iowa braced for its sleepy judicial elections to turn into referendums on gay marriage.
The three Supreme Court justices on the ballot this year are indeed the targets of a well-financed campaign to oust them. But the effort has less to do with undoing same-sex marriage — which will remain even if the judges do not — than sending a broader message far beyond this state’s borders: voters can remove judges whose opinions they dislike.
Around the country, judicial elections that were designed to be as apolitical as possible are suddenly as contentious as any another race.
In Kansas, anti-abortion activists are seeking to recall a justice. In Illinois, business interests are campaigning against the chief justice after a case that removed a cap on malpractice liability, prompting him to run a television ad that opens with the declaration, “I am not a politician.” And a conservative group called Clear the Bench Colorado is citing a host of decisions in seeking to oust the full slate of justices on the ballot there, urging voters, “Be a citizen, not a subject.”
The merit selection system, which is used to pick supreme court justices in 16 states, including Colorado, Iowa and Kansas, was established to reduce politics’ influence on the composition of the judiciary, in part by avoiding the expensive and bitter campaigns seen in states where two candidates compete. (For each vacant post in Iowa, a committee nominates three candidates, one of whom is named by the governor. Judges stand unopposed for retention after their first year and then every eight years.)
“The system was not designed so that people could reject one vote or one case,” said Rachel P. Caufield, a Drake University professor who studies judicial selection. “It was designed so that people could get rid of unfit judges. It was meant as an extreme measure.” She added, “The system has worked well — until now.”
Candidate spending for competitive state supreme court races nationwide increased to more than $200 million over the last decade — more than double the figure for the previous decade — but just $2 million of that was spent in states that used merit selection, according to a recently released report on spending in judicial elections.
Because of the contests being waged from Colorado to Illinois, the amount of money spent on retention elections this year is likely to approach or surpass the figure for the entire previous decade, said Adam Skaggs, a lawyer with the Brennan Center for Justice at the New York University Law School and one of the co-authors of the report. “These cases suggest that the same type of arms-race spending in other contested elections is now beginning to impact previously quiet judicial elections,” Mr. Skaggs said. “These retention elections were sort of the last frontier that was free from this highly political, very expensive campaigning in the judiciary.”
Not that organized campaigns to remove judges through retention elections are without precedent. In 1986, Rose E. Bird, the chief justice of the California Supreme Court, was voted out along with two other justices after a contentious campaign that focused on her opposition to the death penalty. The current chief justice in California, Ronald M. George, who wrote the opinion that briefly legalized same-sex marriage (and later the opinion that upheld the voter-approved ban, Proposition 8), would face a similar campaign but he decided to retire rather than stand for re-election.
In Iowa, the campaign has taken a national flavor with visiting Republican presidential hopefuls endorsing the removal effort and Sandra Day O’Connor, the former United States Supreme Court justice, urging the state to resist the national tug toward partisanship.
A half-century of judicial elections in Iowa could be cumulatively read either as a popular endorsement of a well-functioning judiciary or as a testament to voter apathy. Typically in Iowa, more than a third of people who go to the polls do not even cast votes in the judicial races. No sitting State Supreme Court justice has ever been defeated, and only four lower court judges were removed in nearly 50 years.
Conservatives and liberals believe that insulation from voters has allowed judges to rule independently of popular opinion. That belief is why national organizations have poured money into the ouster campaign in Iowa and why the effort is causing worry among advocates for same-sex marriage and for an independent judiciary. Same-sex marriage has been initially approved in four states by supreme courts and in three (and the District of Columbia) by legislatures.
Troy Price, political director for One Iowa, a gay rights group, said Iowans would not have voted for same-sex marriage and would likely reject it today. “Our concern is the message it sends to judges around the country that if you have a case like ours come before you, you could very well lose your jobs over it,” Mr. Price said. “This is an effort to intimidate the courts in Iowa and intimidate courts all across the country.”
Brian S. Brown, executive director of the National Organization for Marriage, which has spent $230,000 on television ads criticizing the Iowa judges, said he understood that removing the three judges would not change the same-sex marriage ruling. (It was a unanimous ruling by the state’s seven justices.) But Mr. Brown said he hoped the judges’ ouster would help prevent similar rulings elsewhere by making judges around the nation aware that their jobs are on the line.
“It sends a powerful message,” he said, “That if justices go outside the bounds of their oaths, if the justices go outside the bounds of the U.S. and state constitutions they’re going to be held accountable.”
Bob Vander Plaats, who made opposition to same-sex marriage a centerpiece of his unsuccessful run for governor in Iowa, is leading the ouster campaign on behalf of the political arm of the American Family Association, a conservative Christian organization based in Tupelo, Miss.
“My bigger fear isn’t about injecting politics into judicial retention elections. The bigger fear is that we don’t hold them in check,” he said, warning that gun and property rights could be at risk.
The embattled justices — Marsha K. Ternus, the chief justice; Michael J. Streit; and David L. Baker — have decided not to campaign. Two were initially appointed by former Gov. Terry Branstad, the Republican nominee for governor this year, who has declined to weigh in on the effort. One was appointed by Gov. Chet Culver, a Democrat who opposes the campaign.
Supporters of the judges, including most of the legal community here as well as a number of prominent Republicans, describe the campaign as punitive and suggested that if voters want to abolish same-sex marriage they should call a constitutional convention, a matter that is also on the ballot, or pressure the legislature to amend the constitution.
And then there is Jeffrey Neary, a district judge in northwestern Iowa who eight years ago survived what he believes was the state’s first campaign aimed at removing a judge (for granting a divorce to a same-sex couple). Judge Neary said the experience made him more cautious about how he approached controversial cases. He is up for retention this year. “I don’t want judicial positions to be political positions,” he said. “If that happens I don’t want to be a judge.”
- - -
Lawyers debate free legal service - Court considers mandatory pro bono service for poor
By Jimmie E. Gates, Clarion-Ledger (Jackson, Miss.)
September 24, 2010
A former state Supreme Court chief justice says the state high court has authority to require lawyers to provide a certain number of hours in free service to the poor.
It's an issue debated across the state by those in the legal profession as the state Supreme Court reviews a proposal that would require lawyers to provide at least 20 hours of free service a year to the poor in civil cases.
Some lawyers have criticized the proposal. Some question whether it is constitutional.
If such a proposal is adopted, Mississippi would become the first state to mandate pro bono (free) service to the poor.
"I believe without a question the rule proposed would be constitutional," former Chief Justice Ed Pittman said Thursday during a panel discussion held by the Federalist Society of Mississippi in Jackson.
But attorney Mark Garriga, former chief of staff to Gov. Kirk Fordice, sees the proposal as the equivalent of a tax on lawyers.
Garriga said that under the proposal, attorneys could avoid providing the 20 hours by paying $500 a year that would go toward funding programs to help provide access to justice to the poor.
"It's nothing more than a tax on 6,000 people (lawyers)," Garriga said.
The judicial branch of government does not have authority to impose a tax, Garriga asserts.
The one thing that all agreed on during the discussion is that there is a great need for lawyers to provide free service to the poor. The debate is whether it should be mandatory.
In addition to Garriga and Pittman, the panel included attorney Rodger Wilder, incoming Access to Justice Commission co-chairman; and frequent conservative commentator and attorney Russ Latino. Mississippi Court of Appeals Judge Virginia Carlton was moderator.
About 50 lawyers and others in the legal profession attended the discussion.
Wilder said the one thing that should not be lost is that Mississippi is a leader in the effort to ensure the poor have access to justice.
"I hope people don't beat us up because we are providing pro bono service," Wilder said.
He said about half of the state's lawyers are providing 46 hours of free service a year. But Wilder said not enough lawyers are participating.
He thinks the state Supreme Court has authority to impose such a rule, but he is unsure if it would help or hurt.
The state Supreme Court Rules Committee is receiving public comments until Oct. 1 on the proposal, and a ruling will follow.
Latino opposes the mandatory proposal, saying charity is important but voluntary.
In her role as moderator, Carlton suggested as a solution to have pro bono service count as part of lawyers' required continuing education training.
Sandy Middleton, executive director of The Center for Violence Prevention in Pearl, said the need is great for lawyers to assist victims of domestic violence in cases such as child custody, protection orders and divorces.
But Middleton said she isn't advocating mandatory service because if they are forced to do it, they may not give their all to the cases.
- - -
Judges, others want Court to weigh in on judicial campaign speech
Marcia Coyle, National Law Journal
September 29, 2010
A group of state judges, judicial hopefuls and an anti-abortion organization has taken its challenge to a broad range of restrictions on campaign speech by judicial candidates to the U.S. Supreme Court.
A long-time foe of those restrictions, James Bopp Jr. of Bopp, Coleson & Bostrom, in Terre Haute, Ind., has filed two petitions for review arguing that more than half a dozen clauses in Indiana and Wisconsin judicial codes violate the First and 14th Amendments.
Bopp is asking the justices to grant review of decisions by the U.S. Court of Appeals for the 7th Circuit in Bauer v. Shepard from Indiana and Siefert v. Alexander from Wisconsin.
"These decisions aren't consistent with the First Amendment's broad protections of political speech, and they most certainly aren't consistent with what other courts are doing across the country," Bopp asserted in a statement late yesterday.
The Bauer case stems from a 2008 lawsuit filed by the Indiana Right to Life Committee, judicial candidate Torrey Bauer and sitting state Judge David Certo in which they unsuccessfully challenged Indiana's rules prohibiting personal solicitation of campaign contributions and involvement in political party leadership and activities as well as the so-called commits and promises clauses. The latter, they claimed, prevent judicial candidates from answering questionnaires seeking their positions on certain issues.
The Siefert case arises out of the lawsuit filed by Milwaukee Circuit Court Judge John Siefert. He sought to make personal phone calls and personal invitations to fundraising events, and to sign letters seeking contributions to his upcoming 2011 election campaign as well as to endorse candidates in that election.
Last summer in the Bauer case, Chief Judge Frank Easterbrook of the 7th Circuit wrote a strongly worded opinion for the three-judge panel in which he warned that if certain challenged provisions in the Indiana code were unconstitutional, so too were similar canons of the federal judges' code.
"Allowing judges to participate in politics would poison the reputation of the whole judiciary and seriously impair public confidence, without which the judiciary cannot function," Easterbrook wrote. "Preserving that confidence is a compelling interest."
Easterbrook's credentials as "a conservative superstar can scarcely be overstated," said judicial election scholar James Sample of Hofstra University School of Law. "His opinion is a resounding affirmation of the principles underlying codes of judicial conduct in the states. I think his opinion is some indication folks like Mr. Bopp represent the ideological extreme position at odds with a majority of Americans on the left and right alike."
From 2002 until 2009, the Supreme Court has heard three major state judicial election cases. In Republican Party of Minnesota v. White, which Bopp successfully argued, the justices in 2002, voting 5-4, struck down Minnesota's so-called announce clause prohibiting judicial candidates from discussing disputed legal or political issues. Justice Sandra Day O'Connor later said she regretted her vote with the majority.
There is some tension between the White decision and the justices' decision last year in Caperton v. Massey Coal, in which it held that due process required the recusal of a West Virginia Supreme Court justice from a case involving a party who had made a significant contribution to the justice's campaign, according to election scholar Roy Schotland of Georgetown University Law Center.
Bopp, however, insisted, "Judges that run for elective office are entitled to ask for money, to state their views about other candidates, and to be involved with political parties just like any other candidate."
But the majority in both White and Caperton made clear that judicial elections were not the same as other elections, countered Schotland. There currently are conflicts in the circuits over some of the campaign restrictions now being challenged by Bopp, he added, which may weigh in favor of Supreme Court review.
Sample added that the "battle" now is over the line between the White and Caperton decisions.
"It's an important line," he said. "In the new era of judicial elections, there's more money involved and greater awareness on the part of stakeholders as to how the system might be gamed. These clauses are in many respects the first line of defense."
Stop and celebrate the Constitution
The Tuscaloosa News
September 17, 2010
Today is Constitution Day. It is a day when we, as citizens, are to stop, celebrate and acknowledge the fundamental freedoms we enjoy as American citizens because of the rights guaranteed by our Constitution. It's a piece of parchment that we sometimes take for granted.
If you have a moment, I encourage readers to visit www.icivics.org and think about what our Constitution means to your everyday lives. The icivics website was created by former U.S. Supreme Court Justice Sandra Day O'Connor and provides information for our schools and community to study and renew our understanding about what being an American citizen means. You can even test your knowledge about the Constitution. It's fun and you will be amazed at what you might learn!
It's worth remembering 'there is no higher (public) office than that of citizen,' a quote from Justice Louis Brandeis.
Please let the Alabama State Bar know if you would be interested in learning more about our Civics in Education initiative by calling 1-800-354-6154.
President, Alabama State Bar
Spruell & Powell LLC
- - -
Lawyers may have to provide free aid to poor 20-hour-per-year proposal under review by state's high court
By Jimmie E. Gates, Clarion-Ledger (Jackson, Miss.)
September 19, 2010
Mississippi Supreme Court is reviewing a proposal that would require lawyers to provide at least 20 hours of free service to the poor each year.
The suggestion has raised the ire of some lawyers.
One of them is Don Lacy of Flowood, who lambastes the proposal as "an unprecedented and unjustifiable unilateral extension of the authority of the court."
"Other than perhaps the priesthood, I am unaware of any profession which requires its members, as a condition of their right to practice their craft, to contribute a portion of their income to charity," Lacy said in a letter to the court.
There are supporters, however, and Will Bardwell, a Jackson lawyer in private practice for a little more than a year, is among them.
"I understand the argument, doubtlessly voiced by many of my colleagues, that no one should be required to provide what is, in essence, community service," Bardwell said. "Fundamentally, I agree. But the fact is that attorneys are different. That distinction exists as both an honor, and sometimes, a burden.
"But under either instance, it is a badge that each member of the Bar should wear proudly."
Other proposals include raising from $200 to $500 the amount a lawyer can donate in lieu of providing 20 hours of free legal services, and raising from $200 to $500 the amount an out-of-state lawyer must pay torepresent clients in the state.
The state Supreme Court Rules Committee on the Legal Profession is seeking public comments until Oct. 1 on the proposed changes. The panel will consider the comments before making recommendations to the nine-member court. No timetable has been set for a decision.
Jackson County Bar Association President Jessica Dupont said association members do what they can to help the poor, and with renewed commitment through the state and local bars, resolve to do more.
"However, a mandatory pro bono rule would be unfair and demeaning to the legal profession," Dupont said.
Dupont's and Lacy's letters are two of the roughly 64 letters the Supreme Court has received. The vast majority of the letters oppose the mandatory provision.
Chief Justice Bill Waller Jr. said the proposals are only a starting point for discussion.
"No decision has been made with regard to the amount or the issue of mandatory versus voluntary participation," Waller said.
The current rule states lawyers have a professional responsibility to give free legal services to the poor and suggests at least 20 hours of pro bono work.
The goal is to help people have access to legal service in civil cases.
Last week, a state Supreme Court-appointed panel released a 48-page report more than two years in the making that concluded thousands of low-income Mississippians are shut out of civil legal help because they cannot afford a lawyer.
Justice Jess Dickinson, the state Supreme Court's liaison to organizations providing legal services to the poor, said the overriding objective is to make sure every Mississippian, regardless of economic status, has reasonable access to justice and that no one is excluded because he or she doesn't have money to hire an attorney.
J. Lane Greenlee of Winona, a lawyer, supports the mandatory free service proposal.
"I understand those who do not like to be told what to do, but I also am very aware of the need that exists," said Greenlee, a member of the board of directors of North Mississippi Rural Legal Services.
Greenlee, however, suggests the number of hours be reduced to 10 per year - at least for the first five years.
- - -
Our judicial mess – [Editorial]
The Anniston Star
What do Democrats and Republicans agree on? Not much. But in one area the agreement is striking.
A recent nationwide poll showed that Americans of both parties overwhelmingly want special-interest money and partisan politics to stay out of U.S. court systems. The Harris Interactive poll was commissioned by Justice at Work, a judicial watchdog group.
Consider: Approximately 71 percent of Democrats and 70 percent of Republicans nationwide who were polled said they believe campaign donations influence judicial decisions.
Approximately 82 percent of Republicans and 79 percent of Democrats said judges should recuse themselves from cases involving donors who contribute more than $10,000 to their campaigns.
And 88 percent of Republicans and 86 percent of Democrats call for more transparency in disclosing donors and what they contribute to judicial candidates.
These sentiments were especially strong here in the South, where those polled made it clear that they did not want justice bought.
Well, here in Alabama, politicians seem to like the system just the way it is.
They seem to be happy that this state has become an extreme example for special-interest spending on judicial races.
They seem to be happy with a system where nearly one-third of the money contributed to Democrat Deborah Bell Paseur in her 2008 Alabama Supreme Court race came from a single source, the state Democratic Party.
They seem to think it is OK for Paseur to have a single law firm filter more than $600,000 of that money through 30 different PACs so it would be difficult for voters to know who was buying what from whom.
Alabama politicians seem happy with this because if they weren’t, they would change it.
Today, Alabama is one of only seven states where judges are chosen in partisan elections. Fourteen states hold nonpartisan contests, and 24 states use an appointment-retention system under which a committee appoints judges. After they serve their first term, voters can choose to retain or remove them.
In the past, Alabama Chief Justice Sue Bell Cobb and the Alabama Bar Association have submitted bills to the state Legislature that would phase in an appointment-retention system. Those bills failed.
In Alabama, this is what passes for representative government.
- - -
Holder: 'Mockingbird' has lessons for terror fight
By JAY REEVES, The Associated Press
September 21, 2010
TUSCALOOSA, Ala. -- U.S. Attorney General Eric Holder said Tuesday Harper Lee's famous novel about racial injustice in the South, "To Kill a Mockingbird," still holds lessons for authorities who seek to fight terrorism while preserving the rights of innocent Muslims.
Speaking at the University of Alabama for a ceremony marking the 50th anniversary of Lee's only published book, Holder described how Lee's novel illustrates that a system can "grind innocent people into the ground," something he said was important to remember in dealing with innocent Muslim citizens in the United States.
While many people recall the heroism of Lee's fictional hero, attorney Atticus Finch, in defending a black man wrongly accused of rape, Holder said they often forget that Finch's client was still convicted and, ultimately, killed.
"It's a book about injustice, a cautionary tale, but at the same time it's a book about courage," said Holder, speaking in a crowded lecture hall in the law school.
Later, answering questions, Holder defended President Barack Obama's decision to ban torture in the fight against terrorists.
"I do not think that in making that determination President Obama has weakened us in the least in our ability to be effective in that war," Holder said.
Lee, who is from the south Alabama town of Monroeville, wasn't at the ceremony. She attended law school at Alabama in the 1940s and never published another novel after "To Kill a Mockingbird" came out in 1960. It was turned into a movie starring Gregory Peck as Finch.
Describing Obama's commitment to civil rights enforcement, Holder said the Justice Department has asserted itself in the protection of disabled people, workers, students and religious groups and has prosecuted civil rights-era slayings across the South.
"As we have seen in recent decades - and, unfortunately, in recent days - the world has not yet run its course of intolerance and bigotry. Injustice remains. Divisions and disparities remain. Bias- and hate-fueled violence persists," Holder said.
"Although life may, in some ways, feel easier today than ever before, and although the doors of opportunity may be open wider than they were 50 years ago, the truth is that there is nothing easy about 2010," said Holder. His wife, Sharon Malone, is the sister of the late Vivian Malone Jones, one of the first black students to integrate the University of Alabama.
To commemorate the publication of "Mockingbird," the Harper Lee Prize of Legal Literature is being established for fictional books that show the positive effects attorneys can have on society. The prize is sponsored by the University of Alabama School of Law and the ABA Journal, a magazine published by the American Bar Association. Dean Kenneth Randall said Lee's book set the tone for generation's of lawyers.
"She help to redefine the scope of the legal profession," Randall said.
- - -
Missouri Tells Judges Cost of Sentences
By MONICA DAVEY, The New York Times
September 18, 2010
ST. LOUIS — When judges here sentence convicted criminals, a new and unusual variable is available for them to consider: what a given punishment will cost the State of Missouri.
For someone convicted of endangering the welfare of a child, for instance, a judge might now learn that a three-year prison sentence would run more than $37,000 while probation would cost $6,770. A second-degree robber, a judge could be told, would carry a price tag of less than $9,000 for five years of intensive probation, but more than $50,000 for a comparable prison sentence and parole afterward. The bill for a murderer’s 30-year prison term: $504,690.
Legal experts say no other state systematically provides such information to judges, a practice put into effect here last month by the state’s sentencing advisory commission, an appointed board that offers guidance on criminal sentencing.
The practice has touched off a sharp debate. It has been lauded nationally by a disparate group of defense lawyers and fiscal conservatives, who consider it an overdue tool that will force judges to ponder alternatives to prison more seriously.
But critics — prosecutors especially — dismiss the idea as unseemly. They say that the cost of punishment is an irrelevant consideration when deciding a criminal’s fate and that there is a risk of overlooking the larger social costs of crime.
“Justice isn’t subject to a mathematical formula,” said Robert P. McCulloch, the prosecuting attorney for St. Louis County.
The intent behind the cost estimates, he said, is transparent: to pressure judges, in the face of big bills, into sending fewer people to prison.
“There is no average case,” Mr. McCulloch said. “Every case is an individual case, and every victim has the right to have each case viewed individually, and every defendant has that right.”
Supporters, however, say judges would never focus exclusively on the cost of a sentence or turn their responsibilities of judgment into a numerical equation.
“This is one of a thousand things we look at — about the tip of a dog’s tail, it’s such a small thing,” said Judge Gary Oxenhandler, presiding judge in the 13th Judicial Circuit Court and a member of the sentencing commission. “But it is almost foolish not to look at it. We live in a what’s-it-going-to-cost? society now.”
The shift here comes at a dire time for criminal justice budgets around the country, as states try to navigate conflicting, politically charged demands: to keep people safe and also cut costs. Michigan has closed prisons. Arizona considered putting its prison system under private control. California has searched for ways to shrink its incarcerated population.
Legal scholars predict that policies similar to the one in Missouri — which, unlike some other measures, might encourage cutting costs before inmates are already in prison — may soon emerge elsewhere.
Months ago, members of the Missouri Sentencing Advisory Commission, a group of lawyers, judges and others established by state lawmakers years ago, voted to begin providing judges with cost information on individual cases.
Judge Michael A. Wolff of the State Supreme Court, chairman of the sentencing commission, said judges had been asking for such data. By last month, Judge Wolff said, the computer algorithm was up and running, and the commission made note of it to the legal community in its August newsletter, “Smart Sentencing.”
The concept is simple: fill in an offender’s conviction code, criminal history and other background, and the program spits out a range of recommended sentences, new statistical information about the likelihood that Missouri criminals with similar profiles (and the sentences they received) might commit more crimes, and the various options’ price tags.
Judge Wolff said that some judges might never look at the price tags (though they are available to anyone, and some defense lawyers have begun mentioning them) and that judges ultimately did whatever they wished (within statutory limits) on sentences.
Missouri’s sentencing commission makes recommendations only. And as Judge Wolff sees it, sentencing costs would never be a consideration in the most violent cases, just in circumstances where prison is not the only obvious answer.
“This is just more information,” Judge Wolff said.
Fewer than half the states have sentencing commissions like Missouri’s. In many cases, the commissions grew out of concerns, starting in the late 1970s, about racial and geographic disparities in sentences.
Now, however, the groups find themselves also weighing fiscal issues, like everyone else. Consider the theme of a meeting of the national association of sentencing commissions in August: “Sound Sentencing Policy: Balancing Justice and Dollars.”
Leaders of several commissions in other states said they had yet to consider a plan like Missouri’s. Some voiced concern about the ramifications, the methodology — even the price tag of calculating sentencing price tags.
Lots of states measure the costs of imprisonment and of new criminal laws, but on a generic scale. Many states, for instance, calculate the average cost of housing a prisoner, but that is rarely mentioned with down-to-the-dollar figures for a specific person as a judge picks a sentence.
To some, the concept sounds crass, and carries the prospect of unwanted consequences. Might a decision between life in prison and a death sentence be decided some day by price comparison? (Absolutely not, Missouri officials say, and besides, the computer model does not attempt to compute the cost of capital punishment.) Could the costs of various sentences become so widely known as to affect the decisions of jurors?
Numerous legal experts on sentencing issues said Missouri’s new policy made sense. Economic considerations play roles in all sorts of legal decisions, Rachel E. Barkow, a law professor at New York University, said, so why not let judges understand the cost of their choices?
Douglas A. Berman, a law professor at The Ohio State University, said: “One of the flaws in the operation of our criminal justice system is not only the failure to be attentive to cost but an arrogance that somehow you can never put a price on justice. Long missing has been a sober realization that even if we get significant benefits from incarceration, that comes at a significant cost.”
Others, like Paul Cassell, a law professor at the University of Utah, argue that Missouri’s plan counts certain costs but fails to measure others — the societal price, for instance, if someone not incarcerated commits another crime.
“No one can put a price tag on being a victim,” said Scott Burns, executive director of the National District Attorneys Association.
Still, money worries loom. This year, in an annual address, even the chief justice of Missouri’s Supreme Court, William Ray Price Jr., warned that the system would be threatened if budget cuts persisted.
“Perhaps the biggest waste of resources in all of state government is the over-incarceration of nonviolent offenders and our mishandling of drug and alcohol offenders,” he said.
Mr. McCulloch, the prosecutor, said the state’s prisons were filled with anything but harmless people. “You show me the college kid with a perfect record and a dime bag of weed who has been sent to prison, and I’ll get him out,” he said. “Find me him.”
When Missouri lawmakers meet next year, Mr. McCulloch says that he expects he and others may push to abolish the sentencing commission.
National poll says voters want special interests out of judicial races, cites Alabama Supreme Court campaign
Eric Velasco, The Birmingham News
September 11, 2010
A new national poll shows voters in both major parties believe campaign donations affect judges' rulings and want greater transparency, if not a complete overhaul in states like Alabama that elect top jurists.
More than two-thirds of the respondents in the nationwide poll expressed distrust in how campaign money from special interests affects justice, said the judicial watchdog group, Justice at Stake, which commissioned the poll.
"The American mainstream wants courts to be off-limits to special interest money and partisan politics," said Bert Brandenberg, executive director of Justice at Stake. "The desire for impartial courts is broad and bipartisan."
The Harris Interactive poll, conducted in June, showed:
>> Democrats (71 percent) and Republicans (70 percent) both said they believed campaign donations have a significant effect on courtroom rulings. Nearly one-fourth disagreed.
>> Republicans (82 percent) and Democrats (79 percent) said judges should not preside in cases involving donors who gave $10,000 or more. Eight percent disagreed.
>> Republicans (88 percent) and Democrats (86 percent) called for transparency in disclosing donors and the amounts they give judicial candidates. Eight percent disagreed.
Alabama is the poster child for special interest spending on state Supreme Court campaigns.
It is the most expensive state in the nation to run for the high court. "We're No. 1 in a category in which we should not be No. 1," said Alyce Spruell, Alabama State Bar president.
Alabama Supreme Court candidates often get at least one-third of their cash from single sources, according to a recent study by Justice at Stake, the Brennan Center for Justice and the Institute for Money in State Politics.
The study cited Democrat Deborah Bell Paseur's 2008 court bid as an extreme example.
She got $1.66 million, 62 percent of her campaign cash, from the state Democratic Party. The plaintiff trial lawyer firm Beasley, Allen, Crow, Methvin, Portis & Miles filtered $606,000 of that money through 30 PACs before it reached the party and Paseur.
Businesses and corporate trial lawyers routinely use a network of PACs set up to fund Republicans running for state Supreme Court.
The Harris poll did not single out Alabama. But respondents in the South had the strongest sentiment that campaign money greatly influences judicial decision-making and that judges should be recused in cases involving large donors.
"It shows people in the South, including Alabama, concerned about these issues," said Charles Hall, Justice at Stake spokesman.
But often, responses in polls depend on the questions that are asked, said Mike DeBow, a professor at Cumberland School of Law.
"If you asked people point-blank 'Would you like to give up your vote?' people overwhelmingly would say 'No,'" said DeBow, who says election is the best method of judicial selection.
"You could believe all of what this poll found and still say, 'If the choice is between election and some bar-dominated, closed-door selection plan, I'd rather have it open,'" he said.
Elect or appoint?
In the Harris poll, 69 percent called for alternatives such as a system in which judges are appointed by a committee and periodically face voters for retention.
Alabama is one of seven states that hold partisan elections for Supreme Court, while 14 states have nonpartisan elections. Appointment-retention systems are used in 24 states.
Chief Justice Sue Bell Cobb and the state bar have pushed for an appointment-retention system.
Both have submitted bills calling for incremental changes, which went nowhere in the Legislature.
The state bar is changing tactics, combining public education and consensus-building, said Spruell, the state bar president.
"The business sector, political parties, our profession and the public must find a unified approach," she said. "Otherwise any bill is dead on arrival."
But you can never completely remove politics from the process, DeBow said. Elections hold an edge over appointment systems that leave voters out of the initial choice of judges, he said.
"The election system is out in the open, where there can be a competitive airing of different judicial philosophies," he said.
DeBow said he recognizes that campaign ads often contain more "fluff" than useful information for voters.
"But voters are capable of sorting through information and saying, 'This person is more in line with my views,'" he said.
- - -
Campaign 2010: Judicial productivity becomes Alabama Supreme Court election issue
Eric Velasco, The Birmingham News
September 12, 2010
Tom Parker has been the slowest to issue written decisions in his one term as an Alabama Supreme Court justice and has averaged writing the fewest decisions, court statistics show.
The other incumbent seeking re-election in November, Mike Bolin, has lagged behind the court average for the time he needs to issue written decisions, but still has been twice as fast as Parker, court records show.
Parker took three times longer than the court average to write decisions both on accepting appeals and deciding issues before the court during the year ending Sept. 30, 2009, the latest statistics available.
From 2005-2009, Parker took five times longer to write decisions than the speediest justices, Tom Woodall and Champ Lyons, court statistics show.
In that period, he wrote half the number of original decisions produced by Woodall, Lyons and Justice Lyn Stuart.
Parker's productivity has been a campaign issue this year, both in the Republican primary and in the general election race against Mac Parsons, a Circuit Court judge from Bessemer running as a Democrat.
Parsons has called his opponent lazy. Parker has called his opponent a liberal wanna-be paper-pusher.
Both Woodall and Lyons have signaled they want a change on the court, with both contributing money to Parsons' campaign.
Neither side in Bolin's race against Tom Edwards, a Democrat, has talked about productivity. In the third contested high court race, Kelli Wise, a Republican now on the state Court of Criminal Appeals, faces Rhonda Chambers, a Birmingham appellate lawyer running as a Democrat.
In 2008, Chief Justice Sue Bell Cobb, Lyons and another justice began handling some of Parker's cases to reduce his backlog.
But in the year that followed, Parker still ranked last in the speed and number of judicial decisions with one exception. Cobb issued fewer decisions on appeals before the court, but due to administrative duties the chief justice carries half the caseload of the associate justices.
Productivity numbers can be a valid tool for voters to assess a justice at election time, said Bernard Harwood, who served on the court from 2001-2007.
"It's not an absolutely gold-standard test," he said. "But it is legitimate if put into context."
Short-term trends are not necessarily a good barometer. Some cases are easier than others, he said.
"One judge may be assigned a tremendously complex case that went on for years, with thousands of pages of testimony and motions to review," he said. "Another may get a case that was disposed of before trial, with a short record and few issues."
But multiple-year track records can be a helpful gauge because cases are randomly assigned to justices, Harwood said.
"In the long run, everybody should get the same mix of demanding cases and cases that take less time to decide," he said.
The data issued by the court covered a five-year period between Oct. 1, 2004, and Sept. 30, 2009. Five justices were on the court for that entire period.
The court data for that period show:
-- Parker averaged 192 days to write decisions on requests to accept appeals, called "cert" petitions. Bolin averaged 85 days. Stuart was fastest in cert decisions, averaging 36 days.
-- Parker averaged nearly 419 days to write decisions on pending appeals. Bolin's average was 281 days. The fastest justice was Woodall, who averaged 78 days.
-- Parker issued an average of 58 cert decisions per year. Bolin's average was 76. Lyons was the top producer, averaging 84.
-- On written decisions for pending appeals, Parker averaged nearly 27 per year. Bolin averaged 45. Lyons produced an average of 52.
The statistics show Parker's pace picked up slightly in 2009 versus his five-year trend for time needed to issue cert opinions.
He also shaved more than 100 days off his five-year average for writing decisions on pending appeals.
- - -
EDITORIAL: The real issue for Alabama justices
Mike Hollis, The Huntsville Times
September 13, 2010
HUNTSVILLE, Ala. - Two Republican justices on the Alabama Supreme Court created a stir in political circles when it came to light recently they had contributed to the campaigns of two Democrats running for the court.
But some people raise the question whether a judge should be contributing at all to a judicial campaign.
Justice Tom Woodall gave $5,000 to Mac Parsons, who is running against Justice Tom Parker, a Republican. Justice Champ Lyons Jr. gave $1,000 each to Parsons and Rhonda Chambers, who is running against Republican Kelli Wise.
This is head-turning stuff in Alabama politics. State Rep. Mike Hubbard of Auburn, chair of the state Republican Party, said party rules could be enforced against Woodall and Lyons for supporting Democrats.
He pointed to former state Sen. Harri Anne Smith, who was barred from the GOP ticket when she sought re-election because she endorsed Democrat Bobby Bright of Montgomery for Congress two years ago.
But Lyons is 69 and will be over mandatory retirement age for the Supreme Court when his term runs out. Woodall told the Mobile Press-Register last week he is leaning against re-election.
Lyons, who gave Republican Mike Bolin $500 for his race for the court, told the newspaper he is supporting the candidates he believes would make the best justices.
Woodall said he puts "the quality of the people who serve on the Supreme Court above partisan politics."
The comments from Lyons and Woodall may reflect discontent among the justices with Parker's productivity compared to the work record of the eight other members of the court.
In one instance, some of Parker's cases were reassigned to Chief Justice Sue Bell Cobb and two other justices to expedite their handling.
Lyons and Woodall certainly have every right to their opinions about their colleagues on the court, speak about them and make campaign contributions to them or their opponents.
The contributions to Parsons may not put any more strain on the relationship between Parker and the other justices. But how well could Wise and Lyons be expected get along if Wise defeats Lyons' favorite, Chambers?
The same question would apply to any other Supreme Court race when a justice donates to any candidate for the court.
The public has the right to expect the justices to carry out their work efficiently in an atmosphere of mutual respect and collegiality, even when they vigorously disagree over their cases.
For practical purposes, candidates for the court must run as Republicans or Democrats if they have a chance to get elected. But the concept of justice still requires judges to be fair and impartial when interpreting state laws.
So what might be said about the neutrality of a judge who engages in partisan politics (outside his own race) by making a campaign donation?
Alabama already has a problem with outlandish amounts being spent on Supreme Court races. Contributions like those made by Woodall and Lyons don't help matters.
- - -
Should we change the way judges are chosen?
By Bob Martin, The Hartselle Enquirer
September 16, 2010
In a recently released national poll a sizeable majority in both political parties believe campaign donations affect judicial decisions. They also want changes in systems like we have in Alabama where judges are elected in partisan political campaigns.
Over two-thirds of the respondents in the poll expressed distrust in how campaign money from special interests affects justice, according to the judicial watchdog group Justice at Stake, which commissioned the poll.
The Harris poll showed that 71 percent of Democrats and 70 percent of Republicans thought political donations affect judicial decisions. Eighty-two percent of Republicans and 79 percent of Democrats thought judges should not be involved in cases where a party in a case made donations of over $10,000 to the judge. Eighty-eight percent of Republicans and 86 percent of Democrats say contributors and the amounts they give should be disclosed.
Nearly 70 percent of those surveyed would approve a system in which judges are appointed by some type of judicial nominating commission and face voters in retention elections.
We are one of seven states that hold partisan elections for most judicial positions. Fourteen states have nonpartisan elections. Appointment with retention elections are used in 24 states.
Judges and lawyer groups have often made efforts to change our system of electing judges. Chief Justice Sue Bell Cobb and the Alabama State Bar have made efforts to change to a system of appointment and retention elections. Both have submitted legislation, but to no avail.
Wallace killed 1973 effort
Perhaps the best chance such a change had was in 1973 when a Citizens Conference on State Courts to promote reform for Alabama’s judicial system was formed under the leadership of then Chief Justice Howell Heflin.
The conference was poised to adopt recommending a change to a merit selection system of selecting judges, which had been suggested as a method to be considered by the report of a Constitutional Revision Commission appointed by Gov. Albert Brewer in 1969.
As that recommendation moved closer to being placed in the legislation to be introduced in 1973, Heflin got a call from Gov. George Wallace. I was in Heflin’s office as he talked with the governor over his speaker phone. After the usual pleasantries Wallace intoned: “Now Howell I hear y’all are gonna put stuff in that judicial reform that would take away the people’s right to vote on judges. Now Howell, I want to help y’all on this but if you do that…well I’m just gonna have to stump the state against it.”
The following week at a meeting of the Citizens Conference in Birmingham Heflin addressed the group, saying about merit selection… “It looks like we’re going to have to put that on the ‘back burner’ for awhile,” then recounted his conversation with Wallace.
It has remained on the back burner and will likely do so until something really horrible and egregious happens. I thought the recent decision by the Supreme Court denying Alabama citizens any recovery from the ExxonMobil case might be a catalyst, but that doesn’t appear to have caused a cry for change.
Judicial productivity is an issue
Judicial productivity has become an issue in two Supreme Court races this year. Bessemer Circuit Judge Mac Parsons, seeking to unseat Justice Tom Parker has raised the issue over Parker’s being the slowest on the court in deciding cases. In fact, during Parker’s first year in office he didn’t produce a single opinion and his record has not been a lot better since then.
From 2005-2009, Parker took five times longer to write decisions than the speediest justices. And, during the 12 month 2008-09 court term Parker has taken three times longer than the court average to write decisions according to the latest statistics available.
Second to Parker on the “slow” list is another justice up for election this year. Mike Bolin has lagged behind the court average on making decisions, but still has been faster than Parker who, on average, takes nearly 419 days to write decisions on pending appeals. Bolin’s average was 281 days. The fastest was Justice Tom Woodall, who averaged 78 days.
Speed isn’t everything but the old adage… “Justice Delayed is Justice Denied” does hold a great deal of truth.
- - -
Group Backs Uniform Bar Exam
By Martha Neil, ABAJournal.com
September 15, 2010
One country, one bar exam? That is far from the situation in the United States right now, and that is not likely to be the reality at any point in the foreseeable future.
Yet while individual states regulate the activities of their own lawyers and administer their own bar exams, an ABA group is weighing in to support making it easier for lawyers to become licensed in multiple states.
In a resolution (PDF) that was adopted by the ABA's Council of the Section of Legal Education and Admissions to the Bar last month and finalized Tuesday, the group "urges the bar admission authorities in each state and territory to consider participating in the development and implementation of a uniform bar examination." The Conference of Chief Justices adopted a similar resolution last month.
In April, Missouri became the first state to adopt the Uniform Bar Examination, and the National Conference of Bar Examiners reported in June that North Dakota was the second state to do so. USA Today reported last November that Arizona, Colorado, Minnesota, New Hampshire and Washington, D.C., were also considering the idea.
Even states that adopt the UBE would still continue to conduct their own bar exams, which could include testing on that individual state's law. However, the UBE would allow lawyers to transfer a standard bar exam score between jurisdictions.
"Portable" UBE scores, which are recognized in all UBE jurisdictions, make it easier for recent law graduates facing an uncertain legal job market to be flexible in pursuing career opportunities throughout the country. And, as far as lawyers at all levels of experience are concerned, they open the door to uniform licensing requirements that would potentially ease the way for multistate practice, explains Dean Veryl Victoria Miles of the Catholic University of America's law school, in a Bar Examiner article (PDF) last month.
A National Conference of Bar Examiners article (PDF) provides additional information.
- - -
Our View: No party loyalty on court – [Editorial]
The Gadsden Times
September 6, 2010
The fallout from a political contribution demonstrates yet again the need for Alabama to consider nonpartisan judicial elections.
Republican Supreme Court Justices Tom Woodall and Champ Lyons aren’t running this year and have decided to help other candidates for Supreme Court seats. Such contributions are not unheard of or even that unusual except that Woodall and Lyons each gave to Democratic candidates for the state’s high court.
Woodall gave $5,000 to Jefferson County Circuit Judge Mac Parsons, a Democrat running against incumbent Republican justice Tom Parker.
Lyons gave $1,000 to Parsons and also to Rhonda Chambers, a Democrat seeking the seat being vacated by Patti Smith. She is opposed by Republican Kelli Wise. Lyons also gave $500 to fellow Republican Mike Bolin.
The Alabama Republican Party has disciplined party members for acts of disloyalty to other party candidates. The state Republican Party denied state Sen. Harri Ann Smith a spot in the party primary this year because she supported Bobby Bright, a Democrat, in his bid for the 2nd District seat in Congress two years ago. Smith is running as an independent.
Such a threat obviously doesn’t hold much sway with Lyons and Woodall. Lyons will be past the mandatory retirement age and can’t run again.
Woodall says he’s leaning against running again when his term is up in 2012. If he gives up his seat, then it will be difficult to know how many bridges he burnt within the party.
Lyons and Woodall each said words to the effect that electing qualified justices should come ahead of party loyalty and that they made contributions to the candidates they thought would be the best for the state.
It would be better for the state if candidates for our top court didn’t run in partisan elections.
When we hear one candidate, or a spokesman for a candidate, call another a “leftist liberal” or an “Obama candidate,” as Parker spokesman Matt Chancey did about Parsons, it makes us long for nonpartisan elections.
True, it wouldn’t take all the politics out of the campaigns, but it would curtail some of the nasty rhetoric and would force judges to run more on their qualifications than on their ideology.
- - -
More people forgo lawyers, represent themselves - Courts concerned about trend
By Andria Simmons, The Atlanta Journal-Constitution
September 5, 2010
Billy Williams already had spent $7,000 on attorney fees getting a divorce when he decided to act as his own lawyer for a custody dispute involving his 13-year-old son.
Williams figured he could save this time around by representing himself, but he left the courtroom feeling frustrated after Cobb County Superior Court Judge Lark Ingram interrupted him several times for not following proper court procedures.
The judge granted primary custody to his ex-wife. Williams felt he was at a disadvantage because his wife had an attorney; he didn’t.
“She had the upper hand; there is no doubt,” Williams said. “I’m sure the judge kind of went in her favor because of the lawyer.”
State court judges across the country report that more people like Williams are acting as their own attorneys in civil matters. The trend is a cause of concern for a judiciary that is having to become more efficient because of state budget cuts. State funding to the courts in 2009 was at its lowest level in recent history. County and municipal governments also have frozen or cut court funding in the wake of declining tax revenue.
Court officials say self-represented litigants tend to slow proceedings and use more staff time.
“It’s a huge issue with judicial economy and use of the court’s time,” said Fulton County Superior Court Judge Bensonetta Tipton Lane. “It is difficult to mete out justice when there are two people not providing an orderly presentation, but trying to get their barbs in. Cross-examination gets reduced to ‘No, I didn’t,’ and ‘Yes, I did.’ ”
It’s unknown exactly how many more people are handling their own cases, because state courts don’t track those statistics, said Mike Holiman, executive director of the Council of Superior Court Clerks of Georgia.
However, a survey released in July by the American Bar Association found that 60 percent of judges said the number of self-represented cases increased in 2009. The survey, which 1,176 judges took, was intended to gauge the impact of the economy on the courts. Georgia had the highest participation, with 124 judges responding.
The most common types of cases in which self-representation is growing are domestic relations, common law, foreclosures and housing.
People acting as their own lawyers often fail to ensure both parties receive the necessary notification and paperwork, and they commit procedural errors, said Cobb County Superior Court Judge Robert Flournoy.
Gwinnett County State Court Judge Randy Rich said, “When it comes down to a trial, they don’t know the rules of evidence to get their documents admitted, and they don’t know the way to present whatever they want to present.”
In cases where someone had no legal representation, 62 percent of judges surveyed by the ABA said outcomes for the litigant were worse.
When a person shows up at the courthouse without a lawyer, clerks who file cases and judges who hear them are put into the position of guiding an unschooled party through a complex legal system. They must somehow do this without doling out any legal advice.
“Our members, particularly the people on the front counter, are not lawyers,” said Holiman, referring to court clerks. “We are cautious about practicing law without a license, which you can get into very quickly if you start assisting [self-represented] litigants.”
By the same token, judges’ hands are bound because they are supposed to be impartial.
People charged with a crime who cannot afford an attorney are entitled to have a defense attorney appointed to their case free of charge. However, the Constitution does not guarantee the same rights in civil cases except in a few cases where a person would risk loss of liberty (such as mental commitment or juvenile delinquency cases).
There are some options for people facing economic hardship, but there is no perfect solution.
Atlanta Legal Aid’s executive director, Steve Gottlieb, said uncontested divorces often can be handled by individuals without a lawyer. But he would not advise handling a divorce or child custody dispute if it is contentious or it involves a complicated division of property. Foreclosures also are an area where people can quickly get in over their heads. Without a lawyer’s help, a resident easily can lose his home or become a victim of a scam, Gottlieb said.
The Atlanta Legal Aid Society serves Cobb, Clayton, DeKalb, Gwinnett and Fulton counties. Last year, the organization handled 24,636 cases. However, because of the organization’s limited resources, about half of the people who ask for assistance are turned away, Gottlieb said.
If somebody is able to handle a case himself or herself, Legal Aid lawyers may provide this person with needed forms or give him or her a brief legal consultation instead of agreeing to represent. They also provide referrals to the Atlanta Volunteer Lawyers Foundation, another organization that does pro bono work for low-income people.
The Atlanta Legal Aid Society prioritizes cases where the person is particularly vulnerable to domestic violence, disability or illness. They are less likely to get involved if there is little chance of obtaining an economic benefit for the client.
DeKalb and Fulton have Family Law Information Centers that are county-funded to assist people in domestic legal matters. Fulton also has a Probate Information Center to help people with issues surrounding wills and estates.
Miriam Loyal, who heads the Family Law Information Center in DeKalb, said a 30-minute consultation with a lawyer costs $20, and obtaining relevant forms costs from $5 to $20.
The Superior Court of Cobb County has worked with local attorneys to offer a free, hourlong Family Law Workshop on the first Tuesday of each month for people with domestic legal issues.
Several other Georgia counties, such as Chatham and Bibb, are looking into starting a program modeled after the one in Cobb, said Cobb County Superior Court Judge Mary Staley, who helped start the Family Law Workshop.
“Feedback we’re getting from judges in the courtrooms is that it’s helping,” Staley said.
- - -
Cobb rule makes lawyers more affordable
By Andria Simmons, The Atlanta Journal-Constitution
September 8, 2010
Unbundling services. Your cable company does it. So does your phone company. Why not your lawyer?
Unbundled legal services, or limited scope representation, has been permitted under the rules of ethical conduct for attorneys in Georgia since 2001. As such, attorneys could choose to represent someone for a portion of a case, for a fraction of their usual fee.
However, the Cobb County judiciary this year took extra steps to encourage people who intend to represent themselves in court to at least seek limited legal help. The theory is that doing so will allow self-represented litigants, who tend to bog down court procedures because they don't know the law, to handle their cases with greater speed and efficiency, said Cobb County Superior Court Judge Mary Staley.
In March, the county obtained an experimental rule from the Supreme Court of Georgia that clarifies the process of providing unbundled legal services. Information about attorneys who are willing to provide limited services is provided at a monthly Family Law Workshop for self-represented litigants in domestic cases.
Staley sees the step as a necessity in the midst of a recession that has disenfranchised many middle-class people. Often they make too much money to qualify for legal aid but not enough money to pay for a lawyer. Limited scope representation is seen as a way to provide them access to justice.
"It seems like a timely and sensible approach to solving a problem that's not government-intense," said Staley, who helped draft the rule. "It's private sector- and individual responsibility-intense, which are all the things I tend to favor."
If a lawyer is willing, he or she can allow a person to pay a few hundred dollars for limited legal representation instead of paying a retainer of $2,000 or more for representation during an entire case. Some attorneys have found it helps expand their client base.
"A lot of times they come in and figure out their case is complex," said Allyson Russell-Blair, a Marietta attorney who provides limited-scope representation. "They'll end up hiring that attorney for at least a portion of that case. So attorneys are still making money. They just may not be making the substantial retainer up front."
Popular unbundled legal services include attorney consultations, where lawyers can advise how to proceed with a case, as well as help with preparation of legal documents and representation for a single court hearing.
Last February, Stephanie Holder, 26, of Kennesaw, paid Russell-Blair $100 for a 90-minute consultation to help with an uncontested divorce.
"I didn't understand all the legal terms, so she basically helped me with everything," said Holder. "It took about a month and then I went in front of the judge and it was over."
Limited scope representation is not without controversy. Some lawyers are leery about being liable if the case goes awry and some judges dislike being unable to hold an attorney accountable for delays or mistakes. Ordinarily, an attorney files a motion to withdraw from a case, but a judge has discretion about granting the request and could deny the motion.
Cobb County's limited scope rule lets attorneys make an hassle-free exit by filing a notice of limited appearance with the court. The notice specifies the beginning date of appearance and the specific matter for which the attorney is involved. Afterward, the attorney files a notice of termination.
Even so, Cobb Superior Court Judge Robert Flournoy admits, "I'm not a real enthusiastic supporter."
"It's sort of like, how can you be a little bit pregnant?" Flournoy asked. "How can you represent someone a little bit? How do you not do a thorough and complete job?"
Cliff Brashier, executive director of the State Bar of Georgia, said limited scope representation has been discussed more often in legal circles during the past two years than ever before.
The practice is popular in California, where there are continuing legal education courses for lawyers on the topic. In Massachusetts, the state's highest court last year expanded a trial program for limited scope representation to the entire state court system.
Jane Hansen, spokeswoman for the Supreme Court of Georgia, said the high court might consider a request to continue the experimental rule in Cobb or expand it.
"If somebody comes and says this has really worked well, ultimately the goal should be to put it in the uniform court rules, so it applies statewide," Hansen said.