NY Comission on Judicial Conduct Criticizes Judge For Failing to Recognize Need for Interpreter

It has been my experiencce that judges are far more anxious about the risk of adverse action from a judicial conduct than of an appellate reversal, no matter how harshly worded.

So it may be particularly significant that the New York Commission on Judicial Conduct has just publicly admonished Niagara Falls City Judge Robert Merino for failing to appoint an interpreter when requested.

After the tenants requested an interpreter, the Judge appeared to agree, but then continued to ask some basic questions.  When the tenant said that he did not understand, the judge asked where he was born, and the tenant replied Puerto Rico, the Judge commented:

Okay. Go ahead, Mr. Koryl. I think he understands English.

The last time I heard, I think Puerto Rico was bilingual.

The Judge then proceeded, ultimately entering judgement against the tenant.  It is clear from later comments on the record that the tenant did not even understand that the case was over, and anticipated returning for participation of an interpreter.  As the Admonishment explained:

As the proceeding continued, respondent, who never made clear that the case would not be adjourned, continued to ignore red flags indicating Mr. Santana’s litnited proficiency in English. The litigant responded to some questions in Spanish, or told his wife to respond, or did not respond at all as his wife answered for him. While his wife attempted to present defenses for non-paymnent of rent, Mr. Santana barely participated in the proceeding. In this context, when respondent asked Mr. Santana several times if he understood what was said, his halting affirmative responses hardly seem convincing. Even after respondent announced that the warrant of eviction was granted, Mr. Santana asked if an interpreter was coming and if they had to return to court, suggesting he did not realize he had just been evicted. Despite Mr. Santana’s evident confusion about what had transpired, respondent simply told him to “talk to the clerk downstairs” who would “explain what happens next.”

It is perhaps most significant from the Admonishment that the Judicial Conduct Commission took into account the asymmetry of representation status.  The tenant had no counsel, the landlord had counsel:

Mr. Santana was in an especially vulnerable position since he was unrepresented by counsel and was facing an adversary with an attorney. With no lawyer to protect his rights, the fact that he could barely communicate in English compounded his vulnerability and left him virtually defenseless.

Aside from putting judges on clear notice of their obligation in such circumstances to provide an interpreter, the decision may also highlight the extreme frequency of the overlap between self-representation and language access issues.  This is a lesson that advocates must internalize.  I remain unable to understand the focus by language access advocates on interpreters (important though that is) while placing less attention on the grossly exacerbating implications on the lack of counsel, and need for court procedures to compensate.


Posted in Judicial Ethics, LEP | Leave a comment

FLASH — New DOJ Access Head Announced — Former California Judge Lisa Foster

Eric Holder has just announced the appointment of Lisa Foster as the new head of the DOJ Access to Justice Initiative.  Ms  Foster was until recently a judge in San Diego.  Her experience on the bench, with LAFLA and the Center for Law in the Public Interest, and other groups, will stand her in good stead in this critical job.

This is indeed great news for the Initiative, as well as for access as a whole.  I particularly want to echo the AG’s comments (how nice it is to be able to write that phrase) about Karen Lash, who has been wonderfully filling the role of “acting” in the last few months, and achieved so much during that time.  (I previously wrote about Deborah Leff here.)

The full press release appears below:


WASHINGTON—Attorney General Eric Holder announced on Thursday Lisa Foster as the Director of the Access to Justice Initiative (ATJ). Founded in 2010 by Attorney General Holder, ATJ seeks to address the access-to-justicecrisis in the criminal and civil justice system by working within the department, across federal agencies, and with state, local and tribal justice system stakeholders to increase access to counsel and legal assistance and to improve the systems that serve people who are unable to afford lawyers.  By supporting the right to counsel in state and local courts, educating the defender community, supporting defender services in tribal courts, strengthening the juvenile justice system, and enhancing federal programs though civil legal aid, ATJ staff work to help the justice system efficiently deliver outcomes that are fair and accessible to all, irrespective of wealth and status.

“Lisa is a staunch defender of due process, a champion of the rights of all Americans, and a passionate advocate for equal justice under law,” said Attorney General Eric Holder.  “Throughout her impressive career – from her earliest days in public interest law, to her work as a legal aid provider and her distinguished service on the bench – she has consistently demonstrated superior judgment, impeccable integrity, and a steadfast commitment to the high ideals that the Access to Justice Initiative is charged with protecting.  I have no doubt that, under Lisa’s leadership, this important initiative will continue to expand its groundbreaking work to build the more effective justice system – and the more just society – that all Americans deserve.”
Prior to joining the department, Foster served for ten years as a California Superior Court Judge in San Diego presiding over criminal, civil and family law departments.  Foster began her legal career as a Staff Attorney at the Center for Law in the Public Interest in Los Angeles and later joined the Legal Aid Foundation of Los Angeles. Following her service at the Legal Aid Foundation of Los Angeles, Foster served as the Executive Director of California Common Cause before becoming an Adjunct Professor at the University of San Diego Law School and later joining the law firm of Phillips & Cohen as Of Counsel.  For the past year, Foster was a judicial fellow in the Office of Senator Edward J. Markey where she advised Senator Markey on a variety of issues including judicial nominees, patent legislation, regulatory reform and international law and policy.  She received a B.A. in American Studies from Stanford University and J.D., magna cum laude, from Harvard Law School.

“The Access to Justice Initiative does critical work to increase access to counsel and legal assistance for all,” said Acting Associate Attorney General Stuart F. Delery.  “We are privileged to have a person like Lisa, who has dedicated her career to supporting a justice system that is fair and accessible to everyone, guiding this important effort.  I am confident that, with Lisa’s leadership, the initiative will continue to build on the outstanding work done by Deborah Leff, Karen Lash, and the dedicated team working with them.”

Last month, as part of ATJ’s work with the Civil Rights Division, the department filed a statement of interest with the Supreme Court of the State of New York, Albany County, in Hurrell-Harring v. State of New York.  In this class action litigation, the plaintiffs allege that, due to systemic failures in four New York counties, indigent criminal defendants have been constructively denied the right to counsel.  And in April, ATJ launched the Legal Aid Interagency Roundtable Toolkit. This online resource located on ATJ’s website is the product of collaboration with the White House Domestic Policy Council and 18 federal agencies dedicated to examining current programs and practices in order to create better outcomes.

To learn more about the Access to Justice Initiative, visit http://www.justice.gov/atj/.

Posted in Access to Justice Generally | 1 Comment

Roger Smith on Contrast Between British Columbia and UK Legal Aid Cuts Has Valuable Lessons

I want to draw your attention to a blog post by the UK’s wonderful Roger Smith contrasting the BC and UK approach to cutting, and response to cuts in, legal aid budgets.  His essential point is that the BC cuts, while apparently just as draconian, were structured to allow for flexibility and innovation, and the challenges were  approached in that spirit.

A couple of paras of contrast from the post:

The crucial difference between our [UK] position and that of BC is that, unlike by Chris Grayling and the Legal Aid Administration, cuts were not seen as an end in themselves. Yes, the government wanted blood but, provided legal aid could work within a reduced budget, then its administration was left free to do the best that it could. At first, the extent of the slaughter left little wriggle room and lawyers still argue that they should have been the first beneficiaries of any discretionary cash. But, the Legal Services Society, the legal aid administrator, has gradually sought to re-engineer its purpose as not only to provide representation in core cases but to deliver self help and advice designed to assist people to resolve legal problems on their own.

The difference a decade after BC’s cuts is that I have come all the way to Vancouver to see the brilliant work that the Legal Services Society, the Justice Education Society and the Courhouse Libraries are providing in digital delivery to those on low incomes. Google clicklaw.bc.ca, families change.ca, familylaw.lss.bc.ca (soon to be mylawbc.org) for a host of cutting edge provision in the province. Even the Ministry of Justice is joining in. Legislation in 2012 allows the funding of an online small claims court, the civil resolution tribunal, which will come on stream next year. Try even to file an electronic document in our own dear courts. No chance. No imagination. No innovation. Just a Minister and a Ministry shorn of any interest save in reducing expenditure. Cuts, Mr Grayling, are the easy part. Making sense – or even the best – of them takes imagination and innovation. Get on a plane; meet your BC counterparts and be appropriately humble about your government’s limited imagination and barren approach to policy.

In some ways, the cuts in these jurisdictions put them roughly where the US is now.  So the question is whether we approach digging ourselves out of the access crisis with the same creativity.  Or are we only nibbling at the edge of change.  Inevitably, in the US the answer is “it depends” usually on the state and on the quality of leadership in the state.  But I fear that our fragmentation means that we lack national leadership on things like a broad roll-out of self-help centers, forms, unbundling, and the other elements of the continuum of services, and all the quality and cost benefits that would come from national strategies.  An exception is special kudos to LSC, Pro Bono Net and others for creating a near-national network of websites (although all would agree that the integration could go much further particularly on the marketing/partnering end.)

I hope that we as delivery innovators never forget that there will always be cases in which lawyers are needed — even as we work through simplification and innovation in both community based and court-based legal aid to reduce that percentage.  But I also urge right to counsel folks not to forget that explicitly or implicitly taking the position that lawyers are always needed makes their proposals far more expensive and both politically and legally much more likely to build resistance.  It’s an interesting question how the recent Boston Bar (article) (Report) and Maryland Right to Counsel reports deal with this challenge.

The key, of course, is triage and the key to the politics of a solution to the differences in perspective is common research and understanding about triage.

p.s. There is a newly updated website on right to counsel developments, including an interactive map, recently launched by the Coalition.

Posted in Access to Counsel, Budget Issues, International Models, Legal Aid, LSC, Technology | 1 Comment

An Argument as to Why Courts Should Not Require Self-Represented Litigants to Draw Up Orders for Judges to Sign

I have long found it utterly incomprehensible that many courts still require litigants to draw up their own draft orders for the judge then to sign — and they then sometimes blame the litigants for not getting their cases to conclusion and compliance.

Those who oppose self-representation love to use the medical analogy: “Would you do brain surgery on yourself?”

How about this one;  Making people do their own draft orders is like a doctor saying:  ” OK I will sign your prescription if you prepare it and leave it with my secretary.

(If anyone argues that this is more an argument that no-one should be self-represented, the answer is that no-one says that patients should not be allowed to present their own symptoms and needs to the doctor.)

Posted in Court Management, Judicial Ethics, Plain Language

Interesting Juxtaposition: ABA President Supports NonLawyer Practice While Supreme Court Explores Potential Anti-Trust Violation by Dentist Self-Regulation

Its news on its own that ABA President William Hubbard appears to have endorsed nonlawyer practive:

As OrgeonLive.com reported, at an ABA Young Lawyers Division meeting. . .

Hubbard saluted the state of Washington, which was the first in the nation in 2012 to create a new class of legal worker known as a limited license legal technician. This ‘LLLT” role, somewhere between a lawyer and a paralegal, could help the state address the justice gap, in part because they will work cheaper than attorneys.

Hubbard also drew attention to the critical importance of technological change:

Hubbard, a commercial litigator from Columbia, S.C., is convinced technology offers answers. Consider a young, poor single mother who receives an eviction notice. Imagine if the woman could photograph the eviction notice, email the image to a legal portal, and get some initial advice online.

“Technology can make us more efficient,” he said. Given that more than 80 percent of Americans, regardless of income, have access to smart phones, “they can be a game-changer.”

Sophisticated investors are betting millions that technology will fundamentally remake the way law is practiced in this country. Venture investors and private equity companies in 2013 invested $458 million in technology firms that provide some sort of legal service. Similar investments are on track to surpass $1 billion in 2014.

“We need to marry that spirit of innovation with a system that works for all Americans,” Hubbard said.

But what is particularly interesting that this all happened the same week that the US Supreme Court heard an oral argument in which the FTC and the North Carolina Dental Board went up against each other on whether the Board violated the Sherman Anti Trust Act when it defined tooth whitening as within the practice of dentistry, open only to dentists. (Interestingly part of the case focused on the fact that technology had now made tooth whitening much simper to do — maybe sort of like court forms versus old style pleadings.)  (New York Times account of Tuesday’s hearing here.)

While the argument  (transcript here) tended to focus on the scope of the state action exemption to anti-trust law, in the background the question of monopoly protecting regulation was very much present.  While a small group of state bars did submit an amicus in support of the regulating dentists, it is somewhat encouraging that the ABA did not join that amicus (although it is always possible that the was less a policy decision than a product of the complexity of the ABA amicus process.)

In any event, it will be fascinating and important to see how this plays out.  That the ABA is moving in an access direction is all to the good.  Lets hope it is maintained as the presidential succession moves inexorably on.

Update:  Here is the SCOTUS report on the oral argument, Court wary of immunity for licensing boards, but what about doctors?

Posted in Anti-Trust, Non-Lawyer Practice, Supreme Court

What Does it Mean that DOJ Has Filed a Statement of Interest in NY Right to Quality Counsel Case?

As folks should know by now, the US DOJ has filed a “Statement of Interest” in the ongoing New York State case about the quality of indigent defense services.

While taking no formal position on the merits of the case, the Statement, urges three things:

  • That if liability is found, the court has broad authority to enter injunctive relief and to appoint an independent monitor,
  • That such a monitor would be critical in such a complex situation, and
  • That the remedy should include caseload controls.

This is the second such involvement (I am avoiding the formal word “intervention” here), and as such highlights the systematic and national interest that DOJ has in this issue.

I wonder if there are similar statements of interest that might be appropriate in civil access to justice cases.  The Department’s amicus in Turner was clearly highly influential.  I would encouage those involved in cases that might benefit from such engagement to be in appropriate touch with DOJ.  Even if initial requests do not obtain the desired result, surely even the triggering of a discussion within DOJ would be a good thing.  Now that there is an Access to Justice Initiative within DOJ, such things become more possible.



Posted in Access to Justice Generally, Criminal Law, Dept. of Justice, Public Defender

Sad News About the Dissolution of the American Judicature Society

The American Judicature Society, which had been over 100 years old, has announced its dissolution.

AJS played a very major role in moving forward a broad view of access to justice.  They published the first national materials on self-represented litigants, organized the critical 1999 Scottsdale Arizona Conference on the self-represented, and put together a number ot regional conferences.  Kate Sampson, their now retired SRL leader, “got” this issue long before almost anyone else.  The AJS magazine Judicature, has carried many articles on access to justice, and their Center on Judicial Ethics has been a leader in promoting changes in the Model Code of Judicial Conduct, particularly with respect to SRL issue.  Fortunately, the Center, run by Cindy Gray, will now be part of the National Center for State Courts.  Cindy has long been an expert to whom I have always known I could turn.

What is particularly sad is that AJS was one of the very few organizations promoting a general view of justice, rather than the perspective of particular stakeholders – valuable as that is too.

Lets hope others also step up to this important plate.



Posted in Access to Justice Generally | 1 Comment