• 2.26.10 – Washington Post – Laurence Tribe, prominent Harvard Law School professor and Supreme Court advocate, is joining the Justice Department to focus on bolstering indigent defense programs throughout the nation.  Attorney General Holder and senior DOJ officials recently lamented the poor funding of public defense programs, and the consequent barriers to the justice system confronting indigent defendants.  Link to article.

• 2.24.10 – Los Angeles Times (Editorial) – opponents of Sharon Browne’s nomination to the board of the Legal Services Corporation, in particular the Alliance for Justice and the ABA’s Standing Committee on Legal Aid and Indigent Defendants, “haven’t made a persuasive case.”  Some of the Alliance’s criticisms of Ms. Browne’s record “smack of guilt by association.”  The process used by ABA SCLAID in reviewing Ms. Browne’s qualifications to serve on the board is confidential.  So the Senate should hold open hearings to discuss criticisms of Ms. Browne and afford her a chance to reply.  Link to editorial.

• 2.24.10 –National Law Journal – two decisions by the Supreme Court this week have limited lower courts’ interpretations of Miranda.  First, in Florida v. Powell, the Court “said that Florida’s alternative wording of the Miranda warning is acceptable, even though it does not explicitly state that a suspect has a right to have a lawyer present during questioning.”  One day later, in Maryland v. Shatzer, the Court established “more permissive rules for police who want to question a suspect for a second time after the suspect invokes Miranda‘s right to remain silent.”  Link to article.

Keep reading the rest of the news from this week!

We missed linking this last week, but the Washington Post‘s Federal Player of the Week for Feb. 16 was another lawyer – Jeffrey Collins (JD from Northwestern) who is currently working as a Foreign Service Officer in the U.S. State Department. He started his career post-law school more traditionally, doing two judicial clerkships and then working at a firm. But in 2002 he joined the Foreign Service and since then has worked in Cuba, Turkey, Iraq, and now Bolivia where he focuses on anti-narcotics trafficking efforts.

The Federal Player of the Week is a joint production of the Washington Post and the Partnership for Public Service, and we will try to link to all Players who have a law background.

[Ed. Note: last week we posted the first of three parts in our series on leadership-skills development for public-interest minded law students and junior attorneys.  Today’s post, from former Equal Justice Works Fellow Emily Benfer, is the second.  It builds off of the propositions that the most successful public interest leaders are driven by fundamental commitments to the ends they seek to achieve, and draw from more arrows in their quivers than trial advocacy and other traditional lawyering skills which are emphasized in law school.]

Emily A. Benfer is a public interest attorney in Washington, D.C., where she is currently co-teaching a course on  Advocacy Tools for the 21^st Century Public Interest Lawyer at Georgetown Law Center.  She first employed advocacy strategies as an Equal Justice Works Fellow at the Washington Legal Clinic for the Homeless, and next year she will become the Director of a new Medical-Legal Partnership Clinic at Loyola University Chicago School of Law.

The world of public interest law values creativity, collaboration and scrappiness – the courage to take calculated risks and engage in the kind of “out-of-the-box” thinking needed to reshape our communities.  Public interest lawyers learn early on in their legal careers that legal prowess is only one of the many skills necessary to becoming an effective advocate for clients and causes. Our success is equally dependent on whether we access a full range of advocacy strategies that are critical to meeting client needs and creating measurable social change. The only problem is that most of us don’t learn these strategies in law school. It is my hope that these five tips will provide you with the framework to get started. Read Emily’s five tips after the jump…

LSC, like a lot of government funded entities, is both championed and pilloried by elected officials in Washington, depending on who is speaking.  Today, LSC’s interim president and board chair made the case for an appropriation boost – from the current $420 million in FY10 to a requested $516.5 million in FY11 – by emphasizing the greatly expanded 1) pool of eligible (low-income) clients and 2) demand for the services of legal aid attorneys, particularly on matters affecting families’ economic security, such as umemployment and home foreclosures.

Testifying in front of a House Appropriations Subcommittee, Victor M. Fortuno, LSC’s interim president, said

Just as the weak economy has severely impacted the poor, it has placed a great strain on the resources that support legal aid programs. Non-federal funding for legal aid programs is declining, and LSC-funded programs are concerned about their ability to provide increased services in 2010 and 2011 … The justice gap is a harsh reality in our nation and the downturn in our economy has dramatically increased the number of people needing civil legal services. 

The International Bar Association just blogged about a law passed in Israel back in November that requires the Israel Bar Association to provide legal representation to low-income persons. It’s up to the Bar Association to develop the details of the program (they currently have a volunteer lawyers program that provides legal assistance in a non-mandatory fashion), but this is a huge step forward towards recognizing a right to legal counsel in all proceedings, not just criminal.

The State’s Attorney’s and Public Defender’s offices in Jacksonville, Florida had a friendly competition in January to see which office could donate more blood to a local blood drive, the Jacksonville Daily Record reported. Not content with mere bragging rights, the head of the losing office had to kiss a pig during halftime at a local college basketball game. This time around the public defenders won, but I’d be willing to bet the prosecutors will demand a rematch in the future.

Law students who are moving out of town for the summer and looking for housing and/or looking to sublet their places should check out NALP’s free, online apartment exchange.

Participate in the National Association for Law Placement’s 2010 Public Sector & Public Interest Attorney Salary Survey.  Every two years, NALP conducts this unique survey to gather important data on attorney salaries, benefits packages, and loan repayment assistance programs.  Public interest law offices have relied upon data from past surveys in resetting salary scales, negotiating union contracts, implementing loan repayment programs, and in other ways.

Who should participate?

• Civil Legal Services Organizations
• Public Defender’s Offices
• District Attorney/Local Prosecutor’s Offices
• All other nonprofit, public interest law offices (e.g. those organizations that promote civil liberties, human rights, advocate for the homeless, etc.)

A hard copy of the survey was mailed to public interest organizations throughout the country on January 28, 2010.  The survey is also available electronically here: https://vovici.com/wsb.dll/s/9c6eg423bc.    (Please complete either the hard-copy or electronic version, not both.)  All survey participants will receive a free electronic copy of the report when it is released later in the year.  The survey response deadline, which was 2/23/10, has been extended to 3/19/10.

Please contact Steve Grumm, NALP’s Director of Public Service Initiatives, with any questions: sgrumm@nalp.org or 202-296-0057.

This spring, the Michigan Supreme Court will hear a case brought by the American Civil Liberties Union arguing that Michigan’s indigent defense system is unconstitutionally failing to provide fair and competent representation. Simultaneously, legislation is being considered in the state to alter funding arrangements and boost oversight. Most critically, it would shift the state from a county-based indigent defense system (like the one recently criticized by the NLADA in Idaho) to a state-wide system with equitable funding and standards for training and caseloads. The bill was introduced in December and was the subject of a public hearing by the House Judiciary Committee; however, it has seen no action since then.

Michigan’s indigent defense system relies heavily on private court-appointed attorneys – some 75% of cases in Detroit are taken by these lawyers, with the remainder being represented by attorneys with the Legal Aid & Defender Association. The funding at issue here is the rates being paid to the court-appointed attorneys, many of whom make this work the whole of their practice. The reimbursement rates are so low that many attorneys end up taking on excessively high caseloads and have very little time to actually meet with clients. For example, the rate guidelines only pay for one jail visit (and that is only $50), which means many defendants who are held in jail before or during a trial have very minimal access to their attorney. NPR ran a good story in August detailing the funding levels and the negative impact they have on representation.

It will be interesting to see if the Michigan Legislature acts before the Supreme Court hears the case this spring, or whether they wait to ensure their actions comply with whatever the court decides the minimum requirements must be. This issue is an increasingly common one in many states, and in other countries as well. We discussed very similar concerns in Canada earlier in January, where the funding crisis led to a boycott by court-appointed lawyers (in a heartening update, the boycott has ended after an agreement was reached to raise rates 40% for all cases and 66% for murder and arson over the next five years).

[2/25/10 Update: the Pennsylvania Legal Aid Network, one of the signatories to an amicus brief in Astrue v. Ratliff,  has blogged about the Supreme Court argument.]

Yesterday, the National Law Journal reports, the Supreme Court heard arguments in Astrue v. Ratliff, a case that asks, essentially, whether attorney fees that are awarded through the Equal Access to Justice Act to a party that prevails in suing the government should go directly to the client or to their attorney in a circumstance when the client owes an unrelated debt to the government, which the government tries to recoup through the EAJA award.  This article aptly summarizes the arguments, but does not focus on a potential side-effect of a ruling – the fallout for public interest attorneys who often represent, for instance, social security claimants in appeals at no charge and who rely on EAJA attorney fees to finance their litigation costs.

What happened in Astrue is that a woman in South Dakota challenged a denial of benefits by the Social Security Administration.  She prevailed – with the assistance of her attorney, Ratliff – which meant that under the circumstances of the case not only would she be eligible for benefits, but that the government was obligated under the EAJA to relinquish attorney fees to the “prevailing party.”  But when it came time for the government to award attorney fees under the EAJA, rather than giving the fees to the attorney, Ratliff, the government said that the fees go to the client herself.  And this, in turn, meant that the government could recoup from that fee amount an unrelated debt owed by the client to the government.  Ratliff, needless to say, disagreed.

The case ultimately wound its way to the Supreme Court to clear up a circuit split on who – the client or their attorney – should receive attorneys fees under EAJA in these circumstances.  A handful of public interest organizations – which rely on EAJA fee awards to finance their activities – filed as Amici on the side of Ratliff.  (As noted above, some public interest organizations routinely sue the government on behalf of low-income clients whom they represent at no charge.  The public interest lawyers rely on EAJA fee awards as the funding source for the work they put in on the front end.)  Here’ s a great summary on SCOTUSWiki, and here’s a link to an amicus brief filed by the public interest organizations.  Philadelphia’s Community Legal Services noted in the brief that:

CLS has a long history of litigating class actions brought on behalf of [Supplemental Security Income] claimants and beneficiaries.  CLS concentrates its representation on those who find it most difficult to find other representation, including the homeless, the mentally ill and those whose primary language is other than English …  CLS pursues EAJA fees in order to defray the costs of its advocacy.  All EAJA fees that are collected are used for the costs of representation and are a significant part of CLS’ yearly budget.  Without such fees, the ability of CLS to represent low income clients alleging disability would be significantly affected.