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. 

Robert Schwartz, of the Juvenile Law Center in Philadelphia, contributed a commentary piece to CNN on why children should not be tried as adults in the criminal justice system. Schwartz discusses two similar Pennsylvania cases, though separated by 20 years, and much of the recent research on the intersection between child psychology and development and the criminal justice system. This article is a good primer for anybody interested in the subject of juvenile justice generally, and the issue of trying kids as adults in particular.

Dean JoAnne Epps’ legal career began with public service, as a prosecuting attorney on both the local and federal levels.  A natural teacher, she moved into the academic world and ultimately into academic administration.  Epps became the Temple Law dean in 2008, after over two dozen years of distinguished work as a professor and an associate dean.  (She also taught your author the rules of evidence, and although I have no trial experience to speak of I retain an uncanny memory of hearsay exceptions some eight years down the road.)

Without further ado, here are Five Questions with JoAnne Epps…

Please note that previous Public Interest News Bulletin stories are archived on PSLawNet.  Also, for a summary of news stories affecting the larger legal industry, see the  NALP Industry News Weekly Digest.

• 2.17.10 – West Virginia Record – Legal Aid of West Virginia and FamilyCare Health Centers have collaborated to form the state’s first medical-legal partnership, through which an LAWV attorney will be onsite part-time at medical clinics to provide legal assistance to low-income patients and to educate medical staff.  Medical-legal partnerships, originally put into operation in Boston, “integrate legal services into the health care setting to help low-income patients navigate the complex legal systems that often hold solutions to social, economic, and environmental determinants of health. For example, when a patient is entitled to obtain Supplemental Security Income and cannot pay for his medication without it, lawyers and doctors can effectively work together to help address the patient’s needs.”  Link to article.

• 2.16.10 – Business Week –   the Obama Administration is emphasizing accountability and performance-based metrics in its approach to managing the federal civil service.  Also vitally important, though, is ensuring that government’s higher ranks are populated with strong leaders.  “Although there are certainly many strong leaders in the Senior Executive Service, the government’s top tier of career executives, and the broader civil service, there is general agreement among senior leaders in the government and experts who have studied the issue that more attention needs to be placed on the selection, assessment, and development of leaders.”  Link to article.

• 2.16.10 – Dallas Morning News – DNA-based exonerations of those convicted of crimes raise a question about whether prosecutors’ limited resources should be devoted to tracing an improper conviction all the way back to a root cause, or whether the exoneration itself suffices to right the past wrong, ending a need for additional inquiry.  Link to article.

• 2.16.10 – American Lawyer Daily – in AmLaw’s “Deferred Associate Diaries” feature, a Class of 2009 law school graduate whose start date at Orrick, Herrington & Sutcliffe, LLP was deferred provides an occasional update on his public service placement with the Public Interest Law Project’s Oakland office.  His most recent entry, made on February 16th, is here, and his first entry, made on December 23, 2009, is here.

• 2.15.10 – American Spectator – a former Georgetown University Law Center student who enrolled during the “golden era for well-paid corporate legal work,” reviews the phenomenon of deferred associates taking public service placements and speculates that, after their exposure to public service work, some deferred associates may seek to remain in those settings rather than returning to Biglaw.  Link to article.

• 2.15.10 – Rome News-Tribune (Georgia) – the Georgia Supreme Court just heard arguments in a case in which two men accused of a 2007 murder are seeking to have the charges dismissed because delays in the public defense system have resulted in the men remaining in jail without a trial.  One of the dilemmas the high court confronted was the possibility that delay and inaction on the part of a criminal defense lawyer might lead to an ironic result that ultimately would benefit their client because charges would be thrown out.   Link to article. 

• 2.14.10 – Herald-Palladium (Southwest Michigan) – the indigent defense system in Michigan, which now essentially is a patchwork of programs that vary county by county, is under attack from critics who “charge that the [state] legislature and governor are shirking their responsibility to pay for and operate a system that works.  The ACLU filed a class action lawsuit in 2007 to spur indigent defense reform, and a bill has been introduced in the state House to “create a state-run public defender system to enforce minimum standards.”  Link to article.

• 2.13.10 – Minneapolis Star Tribune – Dakota County, Minnesota is trying to help criminal defendants who “make too much to qualify for a public defender — but not enough to afford legal representation.”   County judges just approved a plan through which “lawyers will volunteer their services on arraignment day and stay available [at reduced rates] to any low-income person charged with a crime who has not hired a private attorney or has not qualified for a state-paid public defender.”  Link to article. 

• 2.12.10 – Casper Star-Tribune (Wyoming) –  a bill to create a statewide civil legal services system has gotten through state House’s Judiciary Committee and will be taken up by the full body.  Funding for the system would come from a proposed $10 increase in court filing fees.  The system was first proposed by the state’s Access to Justice Commission, under the leadership of Wyoming Supreme Court Justice James Burke.  During the Judiciary Committee hearing, many from the legal community expressed support for the new measure, but a representative for the state’s agricultural interests voiced skepticism on account of the possibility of a legal services program initiating litigation against farmers.  Link to article.

The Orlando Sentinal reported yesterday on a case being handled by Community Legal Services of Mid-Florida in which a couple is being threatened with eviction from their mobile home park due to the presence of a small dog. The dog was recommended by a doctor to alleviate some symptoms of Alzheimer’s in Verdie Cook, the 78 year old resident and owner of the dog with her husband, Kenny. The Cooks are arguing that the strict no-dogs rule of the park must be waived in this case as a “reasonable accommodation” for Cook’s disability under the Fair Housing Act. Unrelated to the merits of the case – the dog is a very cute chihuahua-Boston terrier mix named Lucy.

The latest edition of the ABA Division for Legal Services’ Dialogue newsletter includes a piece on the phenomenon of state jurisdictions creating blue-ribbon Access to Justice commissions (or ATJs), and their close ties with the state Interest on Lawyers Trust Account (IOLTA) programs that fund civil legal services.  ATJs, which are often composed of high-level players from the bench, the private bar, and the public interest community, tend to work on the systemic level, developing big-picture solutions for and bringing attention to shortcomings in the justice system that affect poor and socially marginalized citizens. 

The idea of the organized bar, the courts, legal aid providers, funders, and other stakeholders working together to expand access to civil justice for low-income and disadvantaged people is not new. What is novel about ATJ commissions is that they institutionalize these relationships, typically under the aegis of the state supreme court, providing the group’s recommendations with built-in visibility and credibility and facilitating their implementation.

The piece goes on to talk about the relationship between ATJs and IOLTA programs which, while having some divergence in mission, unite around the goal of ensuring equal access to justice in their jurisdictions.

Ed. Note: this guest post from Ericka Hines, a program manager at Equal Justice Works who specializes in working with law students and junior attorneys on building leadership skills, is the first in a series of three posts that will focus on the importance of cultivating those skills.

No Matter Where Your Career Takes You, the Chance to Lead Will Always Be There…

The idea for this post came from a colleague who was going to a law school to speak on the subject of leadership.  She asked me for my thoughts on these questions and I decided that I would share my answers not just with students at one law school but as many who wanted to know.  Enjoy!

Read Ericka’s leadership advice after the jump

An op-ed piece in the American Spectator talked about the fact that some deferred law firm associates who have taken public interest placements for the year have realized they may not want to return to law firm life after their placement ends. The author reports that some of his friends in these positions have found that 1) they can get by on less money than they thought, and 2) they are really enjoying the substantive work in public interest law.

“These new lawyers have found that their new jobs are more fulfilling and more interesting, and — more importantly — they’ve seen that they can live on a smaller salary.”

While this is just an opinion piece that seems to rely on the author’s conversations with close friends, not a representative survey of deferred associates, this is an interesting development as firms, public interest employers, and other law grads looking for public interest work all try to discern the evolving changes in the legal economy.

The response deadline for this one-of-a-kind, national survey is approaching.  Please spread the word in the public interest community.  Below is some background info and a link to the online version of the survey… 

Public Interest Law Offices: please participate in the National Association for Law Placement’s (NALP) 2010 Public Sector & Public Interest Attorney Salary Survey.

What is the Survey?

Every 2 years, NALP conducts this unique survey of public interest and government law offices 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; advocating for legislative changes to salaries and expansions of loan repayment programs; and more.

The survey is endorsed by the Legal Services Corporation, the National District Attorneys Association, the National Legal Aid & Defender Association, and others.

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.)

How to Participate

It is very easy to do.  The survey is now being mailed by hard copy to public interest law offices throughout the country.  It is also available electronically here: https://vovici.com/wsb.dll/s/9c6eg423bc.    (Please complete either the hard-copy or electronic versions, not both.)  All survey participants will receive a free electronic copy of the report when it is released later in the year.

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