Archive for March, 2010

University of Maryland Law Students Weigh in on Clinical Program Funding Controversy

We posted yesterday about a battle brewing between Maryland state legislators and the University of Maryland School of Law’s clinical program.  (We got to refer to the poultry industry as “Big Chicken,” which was enjoyable.)  Today, a letter from two Terrapin law students appears in the Baltimore Sun.  In it, the students urge that the legislature hold off on its efforts to condition funding for the school on the release of information about clinic program clients. 

[The clinical program is] the state’s largest public interest law firm, and we try to do great things for people in need… [W]e handle the types of cases other lawyers might want but cannot afford to take, as well as the ones that others could accept but don’t want to touch. Not only do we take tough and sometimes unpopular cases, but we do a fantastic job for our clients. All of this is not just our opinion but that of the national legal community, which is probably why our clinical law program is consistently ranked among the very best in the country by US News & World Report in its annual law school rankings.

Why is our clinic’s shoestring budget under direct attack? Why is a portion of our state funding being conditioned on us releasing client information in exchange for desperately needed funds? Why did this punitive piece of legislation work its way into the budget bill so late in the legislative session, and only three weeks after the environmental clinic filed a law suit under the Clean Water Act against alleged polluters?

We ask that legislators to take this proposal off the table for now and give us and our peers in the legal community time to state the case for the clinic’s need to have professional independence, if not for our sake, then for the people’s sake. When the interests of needy Marylanders hang in the balance, a more thorough discussion is deserved.

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Interested in Federal Jobs? A New Blog is Out There

Tom Fox of the Partnership for Public Service has partnered with the Washington Post to launch a new blog titled “The Federal Coach.” The blog’s focus is leadership development in federal employment, but it’s also a great resource if you want to learn more about different kinds of federal jobs, as Fox conducts interviews with people from a variety of agencies. Best of all, on Fridays Fox will respond to reader questions, so get over there and take advantage of this great new resource!

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Institute for Justice Issues Report Criticizing State Law Enforcement Overuse of Asset Forfeiture Laws

From a piece that ran yesterday in the National Law Journal:

A new report from the Institute for Justice asserts that police and prosecutors nationwide are abusing their forfeiture privileges by seizing property to pad their budgets, in many cases never even charging the property owners with a crime.

The 123-page report, issued on Tuesday by the Arlington, Va.-based libertarian public interest law firm, claims that civil asset forfeiture laws in the vast majority of states give law enforcement a financial incentive to pursue forfeitures for money, rather than for justice. That’s because law enforcement agencies are allowed to keep the boats, the cars or the cash, the report says, while property owners bear the burden of fighting to get their goods back and proving their property was not involved in anything illegal.

The NLJ article also includes a reaction from prosecutors:

Prosecutors, meanwhile, dispute the report’s conclusion, arguing that civil forfeitures receive plenty of judicial oversight.

“It’s not like cops are grabbing something in the middle of the night and not answering for it. In most states, [forfeitures] are completely approved by the court,” said James Reams, president-elect of the National District Attorneys Association.

While abuses may occur, “abuses that occur are certainly not endemic,” he argued. “The vast majority of [forfeiture] funds are being used exactly the way legislatures intended them to be used. And it’s all transparent.”

Joshua Marquis, district attorney in Clatsop County, Ore., agreed, saying the Institute for Justice report is “using a very broad brush.” Specifically, he disputed claims that law enforcement can outright seize property without offering any explanation to the court.

“I’m faced with this on a regular basis,” Marquis said. “In my experience, courts are pretty vigilant in saying there has to be some reasonable nexus. The state just can’t take the money. They have to show that there is a strong correlation between criminal activity and the money.”

Here’s a link to the report, Policing for Profit: The Abuse of Civil Asset Forfeiture.

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Public Interest Lawyer = Game Show Whiz

When the terms “public interest lawyer” and “jeopardy” are used in the same sentence, it almost always refers to student debt.  And we’re willing to bet one month’s Stafford repayment that ”public interest lawyer” has never appeared in the same sentence as “Cliff Clavin.”  (That joke will separate our Gen X from our Gen Y readers.)  Tonight, it all changes.

According to the Beyond Bread Blog, which is run by DC-based nonprofit Bread for the City, their legal clinic fellow Stacy Braverman has appeared on an episode of Jeopardy! that will air tonight.  Tune in to find out how she does.  We’re hoping that there were question categories on LRAP and Pro Bono.

Good luck, Stacy!

[Tip of cap from PSLawNet Blog to NALP/Street Law Legal Diversity Pipeline Program Fellow Millie Bond.]

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Maryland Law Clinic Activities Scrutinized by State Legislators, Part Deux

We posted last week about Maryland state legislators threatening to cut funding to the University of Maryland School of Law unless it turned over information identifying some clinical program clients.  This demand arose from some legislators’ opposition to the environmental clinic’s involvement in a suit that targeted Perdue Farms.  (If we’ve said it once we’ve said it a thousand times here at the PSLawNet Blog – litigators must tread lightly when dealing with Big Chicken.)

The Baltimore Sun’s editorial board’s pushback against the legislators’ strong-arming, which was what prompted our initial post, was a bit ahead of the news cycle.  Subsequently, the Sun covered the story in an article, as did the Washington Post.

Yesterday, the National Law Journal picked up on the square-off between the legislature and the law school…

The fight stems from a lawsuit that the school’s environmental law clinic filed on March 2 on behalf of an environmental group against poultry giant Perdue Farms and a chicken farmer who supplies the company. The lawsuit contends that the defendants are illegally discharging pollution into the Franklin Branch and Pocomoke River, which feed into the Chesapeake Bay.

Last week, the Maryland Senate passed a budget amendment that would require the University of Maryland’s environmental law clinic to disclose its expenditures and client roster for the past two years; if the school refused, the university would lose $250,000 in state funding. That amendment was a compromise from an earlier proposal by State Sen. J. Lowell Stoltzfus that would require all of the school’s 23 clinics to turn over information for the past five years.

Lowell told the Washington Post that he is worried that the clinics are bad for business because law students could overwhelm small chicken farmers who must pay to defend against the suits. The Maryland House of Representatives is scheduled to vote on several amendments Thursday that would tie the reporting of legal clinic information to as much as $750,000 in university funding.

“It’s a serious concern,” said Maryland law Dean Phoebe Haddon. “We understand that we are a public institution and have to be accountable for the work we do. We have responded to requests for information when asked, but we are always careful in case those requests broach confidentiality or other professional responsibility-related issues. I’m concerned about the allocation of funding being tied to this reporting.”

[Full Disclosure: Dean Haddon taught the PSLawNet Blog torts in the Fall of 2000, while we were both at the glorious Temple University School of Law in Philadelphia, PA - home of the 2008 World Champion Phildelphia Phillies.]  Where were we?  According to the NLJ, this controversy has attracted the attention of law school clinical community.

The move by Maryland legislators is the latest in string of attempts by government officials and others to gain access to information about law school clinics. Law schools have consistently resisted those attempts, arguing that clinics are entitled to the same attorney-client privilege as are law firms and other attorneys.

“These actions demonstrate a failure to understand the professional responsibilities of lawyers and the structure of contemporary legal education,” Clinical Legal Education Association (CLEA) President Robert Kuehn said in a written statement. “Unfortunately, those attacking the law clinics appear more concerned about protecting favored businesses from compliance with the law than supporting one of their state’s flagship schools.”

Clinical educators are circulating a petition opposing the Maryland legislation. The American Bar Association has not yet weighed in on the Maryland situation, but the group’s Council on Legal Education adopted a statement in 1983 that calls for the organization to assist schools in preserving the independence of their clinics.

“Improper attempts by persons or institutions outside law schools to interfere in the ongoing activities of law school clinical programs and courses have an adverse impact on the quality of the educational mission of affected law schools and jeopardize principles of law school self-governance, academic freedom, and ethical independence under the ABA Code of Professional Responsibility,” the statement reads.

The article notes that clinical programs at the University of Michigan School of Law and Rutgers School of Law – Newark have come under pressure - from a prosecutor and a land developer (via open records laws), respectively – to reveal information about their activities. 

As regards public institutions, these cases do raise interesting questions about what public officials have a right to know, and where that right is superseded by the the clinical programs’ obligations to principles of client confidentiality.

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Who is Responsible for Indigent Defense?

Erik Luna of Washington and Lee University School of Law wrote an interesting op-ed for the National Law Journal today on the appropriate balance of state and federal roles in providing for indigent defense. In the wake of some high-profile lawsuits at the state level over inadequate funding (we blogged about a suit in Michigan, a report in Idaho, and linked to a story about an ongoing suit in New York).

As the federal government steps up to take a more active role in fixing the indigent defense system (e.g. the Department of Justice’s appointment of Laurence Tribe to head up indigent legal services efforts – we linked to coverage here), Luna argues that it is important to remember that indigent defense for persons in the state or local criminal justice system is (and always has been) a state responsibility. Luna also discusses some interesting measures states are taking to reduce burdens on their criminal justice systems, and how these are all related and can be supported (but not replaced by) federal efforts.

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Laptops, Be Gone! Law Prof. Makes the Case Against Classroom Laptop/WiFi Use

Professor Maureen A. Howard of the University of Washington School of Law writes in the Huffington Post that laptop use by students during class does more harm than good.  She refers to a new book by a former Google executive which suggests (to her) that:

 It turns out that we humans are pretty darned awful at multitasking. Our brains just aren’t designed to do multiple tasks simultaneously and do them well. This conclusion is supported by teachers like Professor Diane Sieber at University of Colorado who found that laptop “addicts” in class performed no better than students who didn’t attend class at all!

Professor Howard also takes on the popular argument advanced by the Let-Me-Keep-My-Laptop camp: it’s the teachers’ fault for not engaging us.  Her response: even if, so what?

Retorts to concerns of professors like Ian Ayres at Yale is that it is we professors who are to blame for not grabbing and keeping the attention of 21st Century students. This view was humorously endorsed by NYU law students (#5 U.S. law school per U.S. News& World Report) in a music video acknowledging widespread internet surfing during NYU law school classes. The not-so-implicit message is that professors are responsible for student frolic and detour during class because we are boring.

Perhaps.

But much of day-to-day post-graduation life in law–or in any other profession–can be pretty darned boring. And it is career suicide, if not professional malpractice, to “zone out” or surf the web during a meeting/presentation/deposition/trial/surgery/real estate closing because the work isn’t as entertaining as a television reality show.

Our role as post-graduate educators should include mentoring students about post-graduate professional expectations and professional behaviors. Allowing students to surf the internet unrelated to class work hamstrings their ability to learn both substantive information and professional behavior needed for a smooth and successful transition into the post-graduation workforce. How well-received would a recently-graduated, newly-hired entry-level management trainee be if she started surfing eBay for Prada shoes in the middle of a monthly department meeting, no matter how boring the meeting? We are failing students if we tolerate mindless election of disposable entertainment over legitimate education in the classroom–because the behavior will not be tolerated after the diploma is awarded and the student is no longer paying the freight, but pulling in a paycheck.

The piece sometimes fails to distinguish between laptop use for taking notes and for surfing the Internet, although Prof. Howard may presume that Wi-Fi is going to be available inside a law school building, thus available in all classrooms.  (And strangely, she never flatly says that she wants laptops gone.)  In any case, it’s a thought-provoking piece that links to some other recent coverage of the fact that some higher-ed. professors - including those who embrace technology’s role in education – are increasingly coming down against laptops in the classroom.

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D.C. Becomes a Mandatory IOLTA Jurisdiction

The Blog of the Legal Times reports:

The D.C. Court of Appeals has approved a change to the D.C. Rules of Professional Conduct that requires all members of the D.C. Bar who receive IOLTA-eligible funds to participate in the IOLTA program. Before the court’s March 22 order, lawyers could opt out of the program.

Washington’s IOLTA program, like others across the country, takes the interest collected on client funds that are either small in amount or held for a short period of time and allows the D.C. Bar Foundation to distribute it to legal service providers in Washington. Katia Garrett, the executive director of the D.C. Bar Foundation, said that to date, 41 other states require participation in their IOLTA programs, and 31 require banks that participate in the IOLTA program to provide comparable rates to non-IOLTA accounts.

Those who are unfamiliar with IOLTA programs may not know that they are critical funding sources for civil legal services providers throughout the country.  IOLTA programs are administered on a state-by-state basis.  There’s much to learn on the IOLTA.org website.  Some of the info on there is a little bit dated, but it provides the basics:

Interest on Lawyers Trust Accounts is a unique and innovative way to increase access to justice for individuals and families living in poverty and to improve our justice system. Without taxing the public, and at no cost to lawyers or their clients, interest from lawyer trust accounts is pooled to provide civil legal aid to the poor and support improvements to the justice system.

A lawyer who receives funds that belong to a client must place those funds in a trust account separate from the lawyer’s own money. Client funds are deposited in an IOLTA account when the funds cannot otherwise earn enough income for the client to be more than the cost of securing that income. The client – and not the IOLTA program – receives the interest if the funds are large enough or will be held for a long enough period of time to generate net interest that is sufficient to allocate directly to the client.

…and some history…

IOLTA programs were first established in Australia and Canada in the late 1960s and early 1970s to generate funds for legal services to the poor. In the late 1970s, The Florida Bar and other organizations filed a petition to establish the first U.S. IOLTA program in Florida. After legislation permitted the establishment of interest-bearing checking accounts in the early 1980s and the Florida advocates obtained important tax rulings from the IRS, the Florida Bar Foundation launched the first IOLTA program in 1981. Shortly thereafter, California, Idaho and Maryland followed suit.

Today, all 50 states, the District of Columbia, and the U.S. Virgin Islands operate IOLTA programs. Thirty-six jurisdictions require lawyers to participate in IOLTA. Lawyers can opt out of participation in 14 others, and participation is voluntary in two others.

During the economic recession, IOLTA programs have been positively battered, straining the budgets of legal services programs in states throughout the U.S., including in Connecticut, New York, and Maryland.

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Baltimore Sun Editorial Board Sticks up for U. of Maryland Legal Clinics (Or, be careful about suing a well-connected chicken man)

The participation of some U. of Maryland School of Law clinical students in an environmental lawsuit has apparently drawn the ire of some state lawmakers, who are threatening to withhold funding to the school unless it produces a list of all plaintiffs that clinical program students have represented in the past two years.

From the Sun Editorial Board’s “Second Opinion” page:

Make no mistake, the state Senate has done much more than express some idle curiosity about the University of Maryland’s law clinics. Budget language approved by the Senate this week includes a not-so-subtle message: Be careful who you let your law students represent.

The tactics have all the charm of what Sen. Jim Brochin calls “something straight out of communist China.” The University of Maryland School of Law is being ordered to produce a list of all the plaintiffs their students have represented over the past two years or lose $250,000 in funding.

And that’s the nicest version of the proposal. Delegates are considering a 5-year, $750,000 smack in the face.What’s particularly galling is that the assault on the law school’s academic freedom and the independence of its fledgling lawyers is all because some students had the temerity to help some Eastern Shore residents and environmental groups go after polluters.

One might assume a lawsuit aimed at reducing pollution into a Pocomoke River tributary would be regarded as a good thing, but the one filed earlier this year on behalf of the Assateague Coastal Trust and the Waterkeeper Alliance names Perdue Farms as a defendant. Perdue is the nation’s third largest poultry company with $4.6 billion in sales — and a lot of political muscle in this state….

No doubt if the Maryland law students were filing frivolous actions that had little chance in court, Perdue with its deep pockets and out-of-town lawyers would simply shrug and stomp them out. But the worry is clearly that the facts and the law are not on their side.

If lawmakers were genuinely curious about the law school clinics, they might have made a phone call before they started taking the school’s budget hostage. If they had, they’d discover the clinical law program is ranked sixth in the nation by U.S. News & World Report and that it provides an invaluable service as the largest provider of free legal advice to the state’s disadvantaged. It should be regarded with pride rather than suspicion; all Maryland law students are required to do some pro bono work on behalf of the community, a rarity in academia.

What’s the harm in providing a list of clients? Not every person who has sought legal representation — from the AIDS clinic patient to the homeowner seeking expert help to avoid foreclosure — wants that fact publicized for the whole world to see. You can bet lawmakers know that.

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Want to learn more about Civil Right to Counsel?

last month, Seattle University School of Law, University of Washington School of Law, and Gonzaga University School of Law co-hosted a symposium on civil legal representation and access to justice issues. If you couldn’t make it to Seattle for the symposium, never fear – the materials are now available online, and provide some great information.  Additionally, we’ve blogged here about the rise of Access to Justice commissions as well as the “civil Gideon” movement. And if you still want more reading material, check out the National Coalition for the Civil Right to Counsel – they have a resource page with links to articles, state statutes, research, news, and more.

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