Mark Moreau, co-executive director of Southeast Louisiana Legal Services

A steep rise in the number of people living in poverty and a big decline in funding for legal aid services has led to a crisis in access to justice for the most vulnerable Americans, said a panel of judges and attorneys today at the American Bar Association Midyear Meeting in New Orleans.

“This is truly ‘a drop of the cliff moment’ in the legal services funding world, but I would say to you nobody is going to quit and go home,” said Martha Bergmark, founding president/CEO of the Mississippi Center for Justice.

The panel discussion entitled, “The Cost of Justice: Ensuring Access to Justice When There’s No Money,” sponsored by the ABA Commission on Homelessness and Poverty and six other ABA entities, focused on innovative programs and creative ideas for legal aid to the poor.

Bergmark, a former president of the Legal Services Corporation, said providers must diversify their funding sources.  She described “four legs to the chair,” as federal, state, foundation and individual giving.  At the Mississippi Center for Justice, foundations provide 75 percent of the center’s funding and individual donors contribute the rest.  “People give to what they can see will have an impact,” Bergmark added.

A recent survey by LSC, the nation’s single largest provider of civil legal assistance, found that LSC-funded programs anticipate laying off 393 employees, including 163 attorneys, in 2012.  LSC received $348 million from Congress for fiscal year 2012, down from $420 million in fiscal 2010.

“We’re looking at the greatest cut to our program in the last 40 years,” said Mark Moreau, the co-executive director of Southeast Louisiana Legal Services, who will have to lay off one-third of the organization’s attorneys in the next three years. “You have to decide what the core priorities of your clients are and what you can realistically do….It is definitely difficult to say no, but we’re going have to learn how to say it a little more.”

Jay Zainey, U.S. District Court judge

The panelists agreed that more Americans will be representing themselves in court because of the recent economic crisis, and judges need continuing education on how to hear and manage cases to help level the playing field between pro se litigants and lawyers.

“Eighty to 90 percent of the people are going to court alone,” said Moreau. “But we can’t hold lawyers and pro se clients to the same standard.”

“We will never have enough pro bono lawyers, and we do not seem to be giving the money to legal services, so we have to help those who represent themselves,” said retired Alabama Chief Justice Sue Bell Cobb.

During the most recent economic downturn, Cobb said 85 percent of the state employees’ layoffs were in the court system.  Because of budget cuts and resistance from legislators to raise revenue, the courts laid off one-third of its juvenile probation officers and one-half of its court specialists in the clerk’s offices.

“It’s compromising justice, there’s no doubt about it,” Cobb said.  “We wouldn’t be able to keep the doors open but for the use of technology.”

U.S. District Court Judge Jay C. Zainey said the federal courts in the Eastern District of Louisiana don’t see as many pro se cases.  But when they do, judges appoint counsel.  However, “we are very sensitive to budget cuts,” Zainey said.

“In New Orleans, we live by Pre-Katrina and post-Katrina,” Zainey added, referring to the hurricane that devastated the area in 2005.  “We had 60 homeless shelters then and now we have five homeless shelters…and it has nothing to do with laziness, it has everything to do with poverty.”

Zainey and the other panelists agreed that local bar associations and law firms should contribute more pro bono services.  The panelists also discussed the growing interest from law students in pro bono work and criminal justice reforms that might reduce the financial stress of the courts.

Ranie Thompson is managing attorney of the foreclosure defense unit of Southeast Louisiana Legal Services in New Orleans.

At an ABA Midyear Meeting panel discussion Feb. 2 on foreclosure issues, an Atlanta litigator who serves the mortgage industry joined a New Orleans legal services lawyer who specializes in foreclosure defense and two Washington, D.C., affordable housing advocates.

But no fights broke out—literally or figuratively—despite what might appear to be differences in perspective between the three nonprofit-based panelists and Michelle Canter, who represents mortgage bankers, loan servicers and related clients from the Atlanta office of Washington-based Lotstein Legal.

That’s because, as the title of the ABA Commission on Homelessness and Poverty session suggested and the panelists agreed, preventing foreclosure is “A Win-Win Solution for Everyone.”

Canter put it another way.

“Foreclosure is a lose-lose situation for everyone involved,” she said. “There are no winners in this at all. I can assure you that none of my banker-lender clients want to own one more property anywhere in this country. And no neighbor wants to have one more foreclosure here in their neighborhood.”

National foreclosure numbers are staggering. In December 2011, according to panelist Ranie Thompson, managing attorney of the foreclosure defense unit at Southeast Louisiana Legal Services in New Orleans, 1 in every 634 housing units in the United States received a foreclosure filing, and she expects the numbers to worsen.

Thompson reviewed processes and procedures generally and in Louisiana for foreclosure defense and referred the audience to the ABA’s best-selling book Foreclosure Defense: A Practical Litigation Guide.

But as Canter cautioned, “One size doesn’t fit all. … All the rules are different, and they’re changing daily. … What works for a borrower in Florida doesn’t work for a borrower in Kansas.”

Tenants are victims, too

Another troubling perspective on the foreclosure crisis was provided by Jeremy Rosen, policy director for the National Law Center on Homelessness and Poverty in Washington, D.C. He spoke of “a group of folks we don’t always talk about,” the tenants who live in foreclosed properties and may be evicted even thought they’ve always paid their rent on time and otherwise played by the rules.

Rosen recapped the federal Protecting Tenants at Foreclosure Act, signed into law in May 2009 and amended by the Dodd-Frank Act in July 2010. The PTFA, which is due to sunset at the end of 2014, is “a very, very unique law” because of its unprecedented federal foray into the landlord-tenant realm, which is traditionally a state or even local matter, Rosen said.

Among other things, Rosen explained, the PTFA requires that most tenants in foreclosed properties generally are guaranteed at least 90 days’ notice to vacate.

Some states and localities have extended rights for renters beyond those in the federal law, Rosen said. Additional information on such laws can be found in the Law Center’s report, “Staying Home.”

Lawyers and mortgage rescue scams

A disturbing aspect of the foreclosure crisis is the participation of lawyers in mortgage rescue scams, said Rutledge Simmons, deputy general counsel of NeighborWorks America and a member of the ABA Commission on Homelessness and Poverty. Of more than 10,000 complaints of such swindles reported to the Lawyers’ Committee for Civil Rights Under Law, more than a quarter involved legal representations, he said.

“Thus, a terrible situation was made even worse,” Simmons said.

Simmons said it can be easy for lawyers to be lured into such activity, which can be lucrative but unethical or illegal, especially if they innocently decide to collaborate professionally with loan providers or real estate agents. He said an effort is underway in the ABA to enlist bar associations to help combat lawyer participation in mortgage rescue scams, which is described in more detail in an article he wrote for the ABA Business Law Section.

Simmons said lawyers who do not specialize in housing law can refer distressed homeowners and tenants to the U.S. Department of Housing and Urban Development’s website on avoiding foreclosure.

It is a difficult balancing act between the need for law enforcement to have access to records by institutional third parties, and the privacy interests and implications on social participation.  There is currently no structure through which legislatures, courts acting in their supervisory capacity and agencies to make the difficult decisions as to what records should be protected and the scope of such protection.  Resolution 101A calls for the adoption of the black letter ABA Criminal Justice Standards on Law Enforcement Access to Third Party Records, which provides such a framework through which to do so.

Recent attempts by legislatures have sought to regulate the ability of state and local bar associations to function independently and freely represent the views of their members.  In Puerto Rico, for example, a political faction that opposed the bar association’s ideological positions on certain issues, prevailed upon the Puerto Rico legislature to enact statutes that dissolved the integrated nature of the organized bar.  Recommendation 10A, brought to the House by the Bar Association of Puerto Rico, urges the highest courts or legislative bodies of states and territories charged with the administration of justice, to respect the organized bar’s ability and right to function independently.

For two decades, rehabilitative sentencing alternatives, such as drug and domestic violence courts, have made positive inroads in reducing recidivism and costs associated with incarceration.  Noncitizens, however, cannot avail themselves of the benefits of therapeutic courts, which results in an inequity with a high personal cost to the individual, his or her family and community, and society as a whole.  Recommendation 101F would lend the ABA’s support for legislation, policies and practices that allow equal and uniform access to therapeutic courts and problem-solving sentencing alternatives, such as drug treatment and anger management counseling, regardless of the custody or detention status of the individual.

A 2009 study by the National Academy of Sciences raised a host of issues regarding the presentation of expert testimony at trial.  According to the study, changes that need to be implemented are ones taking place not only in the laboratory, but also in the presentation and assessment of such evidence by attorneys and judges.  Resolution 101C urges judges to consider a number of factors in weighing the use of evidence, such as whether the expert testimony of uniqueness is based on valid scientific research, whether experts present testimony that is accurate and fairly conveys the significance of their conclusions, and whether to include jury instructions with specific information so that the panel can fairly assess the reliability and weight of such testimony.

A groundbreaking framework, adopted by the United Nations Human Rights Council, has emerged to address the responsibilities of transnational corporations and other business enterprises with respect to human rights.  The outline rests on three pillars: the state’s duty to protect the human rights of its people; the corporate responsibility to protect human rights; and the need for more effective access to remedies.  Recommendation 109 calls for ABA endorsement of the framework, and urges governments and the legal community to integrate into their respective operations and practices the United Nations Framework and Guiding Principles; as well as the “human rights” provisions of the OECD Guidelines for Multinational Enterprises.

View results as they happen from the House of Delegates session on Feb. 6 on ABANow.org.

The U.S. state court funding crisis, efforts to ensure access to justice, foreclosure prevention and disaster preparedness are the focus of just some of the legal programs at the American Bar Association Midyear Meeting in New Orleans, Feb.1-6.

High-profile speakers at the meeting include U.S. Supreme Court Justice Antonin Scalia (Feb. 4, 2 p.m.) and Attorney General Eric Holder (Feb. 4, 1:30 p.m.).

Lawyers Theodore B. Olson and David Boies, co-chairs of the ABA Task Force on Preservation of the Justice System, take center stage during a Feb. 4 forum that will explore solutions, best practices and reform measures to mitigate the impact of severe funding cuts to the nation’s courts. The program will complement a separate Feb. 3 program, “The Cost of Justice: Ensuring Access to Justice When There’s No Money,” featuring Sue Bell Cobb, former chief justice of Alabama.

Access to justice will also be one of the topics at the “Summit on Indigent Defense Improvement” on Feb. 4. Among highlights, the program will include a review of national developments in indigent defense, such as new court decisions, legislation, funding, standards and federal actions that impact indigent defense. Holder will speak during the latter part of the summit, at approximately 1:30 p.m.

Also at the meeting, several local experts will discuss legal issues and disaster preparedness using Hurricane Katrina and the Deep Water Horizon oil spill as launch points. Programs include “Rescue in Deep Water: Legal Liability of Rescue Efforts in Catastrophic Accidents” and “Two Years After the Gulf Oil Spill,” both on Feb. 3.

Other Midyear Meeting programming will focus on hot topics such as foreclosure prevention (Feb. 2) and diversion programs (Feb. 3).

In addition to the nearly 800 events at this premier gathering of legal professionals, the ABA House of Delegates—the association’s policy-making body—will meet Feb. 6, 9 a.m., at the meeting headquarters, the Sheraton New Orleans, in the Grand Ballroom, 5^th floor. For details on the proposals for debate and vote during the one-day session, click here.

The federal holiday we observe on Monday is more than a day to reflect on Dr. King’s achievements—it is a call to action.  As Dr. King himself once said, “Life’s most persistent and urgent question is, ‘What are you doing for others?’”

The ABA strongly supports that commitment to volunteerism.  Our Model Rule 6.1 says every lawyer has a professional responsibility to provide legal service to those unable to pay, and we encourage lawyers to work toward providing at least 50 hours of pro bono legal services per year.  When lawyers volunteer their time and expertise to expand access to justice, they make their communities stronger.

In a time of great uncertainty for our nation, Dr, King’s inspirational message and lifelong dedication to service is a reminder of our capacity to do good.  On this day and every day, let us all work to improve the lives of others and live up to that ideal in a way that moves our country forward.

With nearly 400,000 members, the American Bar Association is the world’s largest voluntary professional membership organization. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.

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Please click here for a bio and photo of Wm. T. (Bill) Robinson III, president of the American Bar Association.

Retired Judge Lawrence E. Walsh (left) was interviewed by current ABA President Wm. T. (Bill) Robinson III (right).

President Robinson: You have a long and distinguished career in the law and in public service.  What are your most memorable moments or events?

Judge Walsh: The most memorable period in my career was working as assistant counsel to New York State Gov. Thomas E. Dewey under Gov. Dewey’s counsel, Charles D. Breitel (later chief judge of the New York State Court of Appeals).  Breitel was a perfectionist, and I worked very hard under him, but Breitel himself worked just as hard as I did.  Gov. Dewey relied on him greatly, and he taught me a great deal.

President Robinson: What led to your choice of a career in the law?

Judge Walsh: My father wanted me to be an engineer.  I had difficulty with math, however, and I found the engineering courses hard.  In my second year at Columbia College, a friend referred me to Walter Fletcher, a partner at the Davis Polk law firm in New York, who invited me to lunch at the Lawyers’ Club and advised me to pursue a legal career.  From that point on, I followed his advice.

President Robinson: You were born in Canada and became a naturalized citizen as a young man.  Did that experience affect your career or life choices?

Judge Walsh: My naturalization as a United States citizen made it possible for me to become a lawyer in the United States and to pursue a legal career here.  I have always loved Nova Scotia, where I was born.  When I was a boy, our family used to return there every summer.

President Robinson: Investigation and prosecution of corruption has been a guiding force throughout your career.  What led you to work in this area?

Judge Walsh: My first legal job was working for J. Edward Lumbard (later chief judge of the United States Court of Appeals for the Second Circuit), when he served as special prosecutor in the Drukman murder investigation, which investigated corruption in the prosecution of a murder in the Williamsburg section of Brooklyn.  The Drukman investigation gave me experience in preparing and trying cases, which has remained valuable to me ever since.

After the Drukman investigation, Thomas E. Dewey invited me to become a deputy assistant district attorney when he was elected district attorney of New York County.  There I worked under the supervision of Murray Gurfein.  First I worked on an investigation of price fixing by electrical contractors.  Then I worked on an investigation that led to the exposure and resignation of Chief Judge Martin T. Manton of the Second Circuit.  Under Stanley Fuld (later chief judge of the New York Court of Appeals), I was introduced to appellate work.  Finally, I spent 15 months trying jury cases in the Court of General Sessions.

President Robinson: You are perhaps best known for your role as independent counsel for the Iran-Contra investigation during the Reagan administration.  What did you learn from that experience?  What did the country learn?

Judge Walsh: One of the most important lessons I learned from the Iran-Contra investigation was the importance of public understanding and support for the role of the independent counsel.  I tried in many ways to make sure that the public understood the independent counsel’s role and its importance to the rule of law.  My talk at the ABA Annual Meeting in 1987 was devoted to this topic.  Another lesson that was driven home was the willingness of some government officials and attorneys to withhold evidence.  This lengthened our investigation and increased its expense.

President Robinson: Why did you title your autobiography “The Gift of Insecurity”?

Judge Walsh: Insecurity was a hallmark of my early life.  My father died when I was in high school, and I thereafter worked part time in high school and college.  Graduating during the Great Depression with mediocre law school grades, I had trouble finding a job.  As a result, I greatly valued the professional opportunities that I was able to obtain, beginning with the Drukman investigation, working long hours to hold my job and excel if possible.  That was my gift of insecurity.

President Robinson: What led you to become active in the ABA?  What were some of your most memorable or prominent events at the ABA, including during your year as ABA president?

Judge Walsh: Cloyd LaPorte, a partner of the Dewey firm in New York, urged me to become active in the New York State Bar Association and then in the ABA.  During my term as ABA president, we celebrated the 200th anniversary of the Declaration of Independence with a memorable convocation including Chief Justice Warren E. Burger and the lord chancellor and the lord chief justice of England.  We also supported Chief Justice Burger’s plan for the Pound Conference on justice, which led to many reforms in the procedures in federal and state courts.  We introduced for the first time standing committees of the Board of Governors, which made it possible to carry on the work of the ABA with greater focus and continuity.

President Robinson: Many thanks for your great service to this association, and to the country.  And congratulations on your 100^th birthday!

Judge Walsh: You’re welcome.  It was my pleasure.

ABA President Wm. T. (Bill) Robinson III

The American Bar Association recognizes the challenges facing concerned law students who have yet to begin their careers and the frustration of those lawyers who are searching for work in this tough job market.

To meet the expenses of my own law school education, I sold my car and worked as a night watchman from 11 p.m. to 7 a.m., attending law school full time each day, so I could get a law degree.  I know first hand what it’s like to face financial obstacles in pursuit of a legal career that does more than pay the bills — it fulfills a lifelong dream.

I respect the dedication and good judgment of young adults who are pursuing their own dreams in the legal field.  A law degree develops critical thinking skills and cultivates the creativity in problem solving needed to successfully access a world of opportunity.

The ABA is dedicated to helping people make an informed choice about entering our legal profession, and to providing law students and lawyers with the resources they need to sustain a fulfilling and successful career.

The ABA is committed to providing prospective law students with better and more transparent information about law school debt and legal employment in a clear, timely fashion.  The ABA has changed and improved its annual questionnaire to law schools, requiring them to provide specific answers about where and by whom their graduates are employed and what types of jobs they hold.

The ABA is also providing career tools and opportunities for law students and lawyers, including an online career center, job board and the most up-to-date information about trends in the field of law.

No graduate-level degree provides better preparation for serving others and succeeding in the world at large than a degree from an ABA-accredited law school.  Embarking on a legal career requires the commitment of time and resources.  The ABA has the highest respect for individuals willing to make that commitment, and since 1878 has been supporting them in their decision to dedicate themselves to the service of others with the benefit of a legal education.

ABA President Wm. T. (Bill) Robinson III

In a Dec. 30, 2011, letter to President Barack Obama, American Bar Association President Wm. T. (Bill) Robinson III expressed the association’s views that presidential signing statements are “contrary to the rule of law and our constitutional system of separation of powers.”

The association’s House of Delegates adopted policy in 2006 opposing the use of signing statements as a method of disregarding or declining to enforce all or part of a law.  The report and ABA policy on signing statements was developed in 2006 by an ABA Task Force on Presidential Signing Statements and the Separation of Powers Doctrine, which reviewed the history and usage of signing statements.

Robinson wrote: “[w]here a signing statement is used to nullify a provision of law, the President is effectively usurping the power of the legislative branch by denying Congress the opportunity to override a veto of that law and may be abrogating the power of the judicial branch to make a determination of constitutionality.”

Where President Obama disagrees with legislation, Robinson said, he should make use of the existing constitutional authority that allows the chief executive to issue a veto.  Robinson emphasized that “…the ABA’s commitment to the constitutional principles of separation of powers and checks and balances leads us to reassert respectfully that a veto and not a signing statement is the constitutionally appropriate avenue for any and every President to respond to an objectionable provision inserted in a bill by Congress.”

The letter can be found here.

Vaclav Havel

The American Bar Association extends its deepest condolences and sympathies to the family of former Czech Republic President Vaclav Havel and to the people of the Czech Republic.

President Havel was a titan for justice and freedom.  The American Bar Association Rule of Law Initiative is proud to have honored President Havel with its Rule of Law Award in 2001 for his significant contributions in the struggle for democratic reforms in Czechoslovakia and later in the Czech Republic.

From a young age, President Havel was a courageous and powerful advocate for justice.  He wrote a number of influential articles, including the seminal “Power of the Powerless,” and helped to establish the Committee for the Defense of the Unjustly Oppressed in 1979 and a consortium of student groups demanding fundamental changes in the Czechoslovak political system in 1989.  The student protests helped give rise to the Velvet Revolution—widespread popular demonstrations in November and December of 1989 that eventually forced the Communist Party of Czechoslovakia out of power.  On Dec. 29, 1989, Vaclav Havel was elected president of Czechoslovakia.  In his inaugural address, he promised to lead the nation to free elections, which he fulfilled in the summer of 1990.

The Federal Assembly re-elected him to the Czechoslovak presidency on July 5, 1990.  President Havel was a determined supporter of the Federation of Czechs and Slovaks.  The winners of the July 1992 parliamentary elections, however, no longer supported the Federation and thus failed to provide President Havel with the required votes.  President Havel retired from public life from mid-July until mid-November 1992, but re-emerged as a presidential candidate when the independence of the Czech nation was imminent.  With the independence of the Czech Republic in 1993, Vaclav Havel was elected as its first president.  He was re-elected in 1998 and continued his contributions toward democratic and economic reforms, and his enduring example of commitment to justice, throughout his presidency.

Today, we mourn the loss of President Havel, but we celebrate his courage and commitment to freedom.

Established in 1994 and bestowed annually, the Rule of Law Award honors an individual or an organization for their contributions to introduce and promote democratic and market reforms in their country, region and the world.

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(Media contact:  Meredith Josef, 202-662-1092, meredith.josef@americanbar.org)

The team’s report, released yesterday by the American Bar Association’s Death Penalty Moratorium Project, lists flaws that include: inadequate protections to guard against wrongful convictions; inconsistent and disproportionate numbers of capital charges and sentences; inadequate funding of the capital defender system; inadequacies in post-conviction review to correct error; capital juror confusion; imposition of a death sentence on people with mental retardation and severe mental disability; and overall lack of data keeping on capital charging and sentencing practices.

“The assessment team in Kentucky is an esteemed group of highly dedicated individuals who are committed to ensuring justice,” said ABA President Wm. T. (Bill) Robinson III, a native of the state.  “The report provides a thorough analysis of the death penalty system, and identifies many areas that need reform,” he said.

The problems with the death penalty system in the state need to be addressed to minimize the risk of executing the innocent, experts say.

In 2003, the ABA’s Death Penalty Moratorium Implementation Project, housed in the Section of Individual Rights and Responsibilities, began several comprehensive evaluations of the death penalty, like the one conducted in Kentucky.  The ABA has examined administration of the death penalty in Alabama, Arizona, Florida, Georgia, Indiana, Ohio, Pennsylvania and Tennessee.  The project expects to release additional reports on Missouri, Texas and Virginia.  The reports have not been adopted by the ABA House of Delegates as policy of the association.

See the ABANow News Release on the Report