Courts, Lawyers and the Administration of Justice

Courts, Lawyers and the Administration of Justice Section Annual Report - November 13, 2014

The section has a broad mandate and a small membership. We concentrate on ways the courts and the Bar can improve access to justice in the District of Columbia. Issues of particular concern include access to counsel and pro bono work; administration of the court system; court rules and procedure; and the relationship between the bench and the Bar. The section also focuses on all aspects of the lawyer's relationship to the profession, including ethics and the disciplinary system. The Steering Committee has led the section in 2013-14 in the following activities.

I. Programs

A. Past Educational Programming: In 2013-14 the section sponsored seven programs. Program planning involved just about all steering committee members and the Access to Justice Committee which launched its luncheon seminar series with four speakers. Providing D.C. Bar members and guests the benefits of out-of-town expertise was a feature of five of the seven programs—speakers from Maryland, Massachusetts, New York and Washington State. Specific programs included:

July 2, 2013 – "The Supreme Court: The View from the Press Gallery." Moderated by Arthur Spitzer, Legal Director, ACLU of the Nation's Capital. Panelists were Kimberly Atkins, Dolan Company Publications; Robert Barnes, The Washington Post; Joan Biskupic, Reuters News Service; Adam Liptak, The New York Times; Tony Mauro, National Law Journal; and David Savage, The Los Angeles Times. The section has presented this panel of Supreme Court journalists for 25 years (the first was in 1988). Held again at Arnold & Porter, the program included behind-the-scenes observations of the Term and comments on cases decided. The program was recorded by C-SPAN and is available here.

March 19, 2014 – Brown Bag Luncheon and Presentation by Michael Greco, "Our Access to Justice Challenge, 50 Years After Gideon." Held at the D.C. Bar, this talk opened a series of sessions with leaders in the movement to expand legal services and access to justice. Greco was President of the American Bar Association in 2006-07 and is a partner in the Boston office of Kirpatrick & Lockhart Preston Gates Ellis LLP. Greco helped lead the ABA House of Delegates to pass by unanimous vote in August 2006 Resolution 112A (urging "federal, state, and territorial governments to provide legal counsel as a matter of right at public expense to low income persons in those categories of adversarial proceedings where basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody, as determined by each jurisdiction."). He discussed the efforts leading up to the resolution and his continued work around the nation to expand access to legal help.

March 20, 2014 – "The Promise of Limited License Legal Technicians to Increase Access to Justice." Held at the firm of Sidley Austin and moderated by Evelyn Becker of the Section Steering Committee. Panelists were Paula Littlewood, Executive Director, Washington State Bar Association; Stephen Crossland, attorney, Cushman, Wash., and Chair of the Washington State LLLT Board; Tom Gordon, Executive Director, Responsive Law, Washington, D.C.; Michael Bloom, Associate Director of the Bureau of Competition in the Federal Trade Commission; and Sheldon Krantz, DLA Piper and D.C. Access to Justice Commission. The Washington State guests explained the new limited license established by the state supreme court to expand available legal help, initially in family law. Tom Gordon discussed the growing interest in the limited license concept in other states and the research and testimony of his organization in favor of ending the lawyer monopoly. Michael Bloom discussed the views of the FTC on the anti-competitive nature of many longstanding efforts of the organized bar to limit the practice of law. Sheldon Krantz presented views on expanding the pool of those who can contribute to access to justice drawn from his book, The Legal Profession: What Is Wrong and How to Fix It.

Before the panel, Section Co-Chair Fritz Mulhauser gave a Special Recognition to D.C. attorney Zona Hostetler (who was not able to attend). As an early advocate for expanded legal assistance in as many ways as possible, she helped launch the D.C. Bar Office of Public Interest Activities and the D.C. Bar Foundation and its IOLTA program. In 1992 the ABA appointed her to its Commission on Nonlawyer Practice and after massive input, including hundreds of witnesses in ten hearings nationwide, she was the principal drafter of the commission's 1995 report, Nonlawyer Activity in Law-Related Situations. The report praised the potential of non-lawyers; urged the bar to update ethical rules that might be limiting growth in affordable, competent services;and urged each state to review the expanded services that could be offered by non-lawyers with appropriate regulation to minimize risks to consumers. The Special Recognition noted the Washington State efforts are firmly in line with the commission's suggestions two decades ago.

April 1, 2014 – Brown Bag Lunch and Bench-Bar Discussion with Superior Court Family Court Juvenile Delinquency Judges. Steering Committee Co-Chair Judge Sharon Goodie introduced the program and the panel. Presiding Judge of the Family Court Division, Hiram E. Puig-Lugo, moderated the session which included remarks by judges on the juvenile calendar and questions from the audience.

April 8, 2014 – Brown Bag Luncheon and Presentation by Pamela Cardullo Ortiz, executive director of the Maryland Access to Justice Commission, Annapolis, Md., on "Exciting Recent Developments in Access to Justice in Maryland." Ms. Ortiz reviewed her Commission's work on increasing access to counsel in the state. Especially notable are their report on practical steps (including cost estimates) for implementing a civil right to counsel in the state if one is recognized, and the requirement (in place for a decade) that lawyers report annually their time on matters handled pro bono.

May 6, 2014 – Brown Bag Luncheon and Presentation on "The Access to Justice Movement" by David Udell, Executive Director of the National Center for Access to Justice in New York (housed at the Yeshiva University Benjamin N. Cardozo School of Law). Udell discussed his Center's recently released Justice Index, a 50-state survey of Americans' ability to use the justice system. The study ranked the states with pro bono assistance from Pfizer Inc.'s legal department; Skadden, Arps, Slate, Meagher & Flom; and Deloitte & Touche LLP. Law students from Cardozo and the University of Pennsylvania Law School also helped. "The Justice Index is really a first step in creating a resource that can be an engine of reform," said Udell when releasing the report in February 2014."Our hope is that across the country, legislators, courts and bar associations will use this information to promote reforms." The project scored each state on a 100-point scale, with Minnesota scoring highest at 69 and Oklahoma the lowest at 23. The national average came in at 48. (The District appeared to score very well in this assessment—third in the nation on a composite index of access dimensions.)

June 10, 2014 – Brown Bag Luncheon and Presentation by Professor Russell Engler of the New England Law School in Boston, with commentary by Eric Angel, executive director of the Legal Aid Society of the District of Columbia, on "Access to Justice and the Right to Counsel in Context: Connecting the Dots." Professor Engler is active both in expanding law student clinical practice and in the Massachusetts Access to Justice Commission. He discussed access to justice developments nationwide including leadership efforts of the bar, legislature and judiciary in many states. He then discussed the movement for civil right to counsel and its place in the broader access to justice context.

B. Upcoming Programs: The section's Access to Justice Committee will present further programs in the series on "low bono" legal services (services to the "gap clients" who are not low enough in income to qualify for legal services but also not able to afford market rates). Extensive discussions on bench-bar programs in the Superior Court Criminal, Civil and Family Divisions and the Court of Appeals are expected to bear fruit in 2014-15. And the section will co-sponsor with the International Law Section in January 2015 a luncheon seminar with experts in law, national security and technology on how attorneys can protect themselves and their clients in an age of widespread international interception even of privileged communications.
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II. Community Outreach

Trial Practice Training for Legal Services Staff Attorneys

This project overlapped two Bar years. After a review of the section funds and unmet needs in the community, the Steering Committee voted early in 2014 to support expanded, relevant and high-quality trial training for new attorneys working in legal services providers in the District. The co-chairs in April began a six-month planning process that led to a donation of funds to the D.C. Bar Foundation to offer a state-of-the-art four-day session October 22-25, 2014.

Featuring case materials written at the National Institute for Trial Advocacy (NITA) especially to be relevant for a legal services audience, a team of five experienced D.C. trial attorneys worked with two dozen staff from D.C. legal services providers to hone trial skills based on guided practice and video feedback.

The Bar Foundation also welcomed a contribution of space and support by the firm of Sutherland Asbill & Brennan and a financial contribution by the D.C. Bar Litigation Section. That section earlier sponsored a shorter NITA training and the favorable response was an inspiration as we planned our own effort. In response to the feedback, our session enrolled more students and expanded the training schedule. The 2013-14 Steering Committee Co-Chair, Judge Sharon Goodie, served as course director.
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III. Membership and Financial

A. Membership: Membership was about 250 at the end of the 2013-14 year, a small dip from the prior year. The steering committee continues to hope that steps can be taken, consistent with judicial ethics rules, to restore participation in sections steering committees of D.C. judges. Our section, perhaps in particular, had enjoyed such participation for many years. It especially helps with invitations for programs involving judges.

B. Financial: The section is in good shape and has $25,000 in reserve. Because of fee-generating activities in prior years, the section had a relatively large reserve before the changes in sections' finance and accounting and the allocation formula showed much of that was retained.
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IV. Publications

Practice Manual Updates: The section again updated two chapters in the D.C. Practice Manual. These provide guidance on appellate practice in the D.C. Court of Appeals and civil practice in the U.S. District Court.

The Legal Aid Society of D.C. graciously lent the talent of Jack Keeney, director of the Barbara McDowell Appellate Advocacy Project (and former section steering committee BOG liaison), for the Court of Appeals chapter review. David L. Scott of the U.S. District Court staff provided expertise for the federal court chapter revision.

The section gratefully acknowledged the assistance of Jack Keeney with a contribution of a copy of the Manual for the Legal Aid Society staff law library.
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V. Public Statement

On January 14, 2014, the section submitted a public statement to the Court of Appeals in support of changes to Rule 48, "Legal Assistance by Law Students."  No other section joined, but the Board of Governors submitted a statement. The D.C. rules on student practice, prior to this revision, dated back many years, with the last major revision in 1982, and by their restrictive features needlessly limit the opportunity for the District to benefit from the capabilities of today's law students, trained in advanced clinics that are known nationwide as exemplary.

The section welcomed the Court's proposed amendment of the rules the would allow a far greater scope of practice by students, eliminate course specifications in the former rule in favor of allowing the law schools to oversee students' preparation, and improve many details of how professors and staff supervise student practice. The section commended the Court's flexibility and its commitment to rules modernized to fit the times.

Because analysis of legal need and available sources of assistance rest on data, we encouraged the Court to collect information on the students practicing under the amended rule so that the D.C. Access to Justice Commission and the public can appreciate and assess their contribution.

The section commented also that other states are recognizing the even greater contribution law students could make to access to justice and amending rules to allow broader practice outside of clinical settings with appropriate other kinds of supervision. The section commended such further rule changes for the court's consideration. Others made similar recommendations in their comments and we were pleased to learn the D.C. Access to Justice Commission established a working group to develop plans in this area.

The Court of Appeals by order filed October 2, 2014, amended Rule 48 in line with the proposal with a few changes, effective December 1, 2014.
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VI. CLE Co-Sponsored Programs – too many to count.

Respectfully submitted,
Fritz Mulhauser, Vice Chair