April/May
2004
Volume XXX, Number 2 (PDF version)
President’s Page:
The Power of One: The Force of a Profession
E. Tazewell Ellett
Community Service Program: Service with Heart
Jeanne F. Franklin
Legal Focus/Indigent Defense:
ABA report slams indigent defense in Virginia
from ABA News Service
The VBA in History/1964:
HEW general counsel urged VBA members to help the indigent
from a speech by Alanson W. Willcox
The 2004 Legislative Review
VBA Foundation Patrons for 2004
Young Lawyers Division Committee Chairs
for 2004
Across the Commonwealth
VBA Summer Meeting will offer abundant programming, scholarly speakers,
social events and more
Calendar
President’s Page:
The Power of One: The Force of a Profession
E. Tazewell Ellett
Peekay was an undersized, pitiful English child who was
bullied unmercifully by the older Afrikaner kids in pre-World War II South
Africa because he was different. George was a mild-mannered banker in
a small American town who repeatedly deferred pursuit of selfish goals
in order to help others in his hometown. Peekay faced challenges so severe
that it would have been completely understandable if he had simply given
up. George ran into a string of bad luck that caused him to conclude that
his whole life had been a failure, and brought him to the brink of suicide
on a snowy bridge over an icy, raging river.
By now you may already have identified Peekay and George
as the protagonists in two of my favorite stories: the novel The Power
of One by Bryce Courtenay, and the classic Frank Capra movie It’s
a Wonderful Life. But what do these characters have to do with the
legal profession, you might ask? Plenty, it seems to me. While Peekay
might have been justified in giving up in the face of the many challenges
that dogged him from a very early age, he did not. And while George could
have thrown his life away on that snowy bridge, he too did not. Thanks
to a number of unusual, but wise, teachers throughout his life, Peekay
learned that he possessed within himself the power, not only to overcome
his challenges, but to excel in a way that inspired people of all types
and classes. George, thanks to his guardian angel Clarence, learned that
his life had not been a failure — far from it.
Through the eyes of Peekay we learn the ability of every
person, no matter how “small” or challenged they may be in their
own mind, to overcome their limitations (or perceived limitations) and
meet even daunting challenges by drawing on the hidden power that lies
within each of us. And through the revelations to George made possible
by Clarence’s clever technique of illustrating what George’s
community would have been like had George never lived (an interesting
variation of the approach used by the Christmas ghosts in Dickens’
A Christmas Carol), we see the ability of average community-minded
individuals to profoundly change lives and entire communities over the
course of their lifetimes without even being aware of the impact they
are having.
While lawyers as a group are typically a fairly confident
lot, it appears to me that some lawyers feel quite challenged when it
comes to making a commitment to volunteer for community service or pro
bono publico legal service. With regard to community service, we tend
to focus on our limitations, or perceived limitations, in the face of
challenges such as the ever-present demands of our practices, our families,
and our other personal and professional obligations. Regarding pro bono
publico legal service, there also is often a concern about lacking expertise
in the relevant area of the law, or getting in over our heads without
adequate backup. We also tend to question whether our individual effort
can really have any meaningful impact.
I suggest that we would all do well to remember the lessons
of Peekay and George. While all of us in the profession face our own individual
demands and challenges, the fact is that every single one of us has the
power within us to overcome these obstacles sufficiently to serve our
communities in some meaningful and impactful way. In fact, I believe there
is a part of all of us that yearns to do just that. I am not talking about
saints or superstars here. I am talking about us — you and me. Although
we may not be saints or superstars (and please forgive me if you are),
we are certainly not just average citizens either.
We are Virginia lawyers. We attended college and law school
and received special education and training. We were determined by the
Board of Bar Examiners to be qualified to sit for the bar exam. We sat
for that exam and passed it. The Virginia Supreme Court admitted us to
practice in the courts of the Commonwealth. We were issued a license to
practice law in Virginia. We have been accorded privileges not accorded
to other members of society. And despite the sweeping negative generalizations
which are sometimes made these days about “lawyers,” privately
our friends, neighbors, and colleagues respect us and our profession for
being learned, hard-working, committed to our clients, and caring about
our community.
In short, we occupy a position of respect and privilege
in our communities that others can only dream about. Because of this,
we have even more of an obligation to give back to the community than
does the average citizen. And we have more of an opportunity as well.
Because of our special training and skills, we have more opportunities
than average citizens to serve the community in ways that are interesting,
exciting, and personally rewarding. Think of it as a license to serve.
The Virginia Bar Association believes that lawyer professionalism requires
not only the quality and ethical performance of paid professional work,
but also a lifestyle which includes time with family and friends and service
to one’s community. In order to focus attention on this professional
obligation (and opportunity) and to encourage and facilitate lawyer involvement
in non-legal community service and pro bono publico legal service, the
Association launched this year the VBA Community Service Program. This
will be a permanent VBA program governed by a Council comprised of dedicated
lawyers from throughout the state. It is co-headed by our beloved Virginia
Supreme Court Former Chief Justice Harry L. Carrico of Richmond and Ran
Randolph of Kaufman & Canoles in Norfolk.
The initial activity sponsored by this program is the
VBA Community Servant and VBA Pro Bono Servant pledge concepts. The VBA
is asking all Virginia lawyers (you do not have to be a VBA member to
participate) to pledge at least 50 hours of non-legal community service
or pro bono publico legal service, or both, during this calendar year.
Those who make the pledge, and then certify at the end of the year that
they have fulfilled it, will be officially recognized by the VBA as a
2004 VBA Community Servant or VBA Pro Bono Servant.
I want to ask you (yes, you) to think about the professional
obligation (and opportunity) of community service and to pledge to become
a VBA Community Servant or VBA Pro Bono Servant. Please take half an hour
and reflect on the service opportunities available in your community and
the amount of time you are willing to commit to non-legal community service
or pro bono publico legal service, or both, during the course of the calendar
year. Think about all you are doing now in this regard, and what other
types of service you might find interesting and rewarding. Based on this
reflection, please pledge to provide a specific number of hours of such
service during the course of the year. Reflection and planning are a key
to this effort. This is not intended to be burdensome, and if your community
service plans are well thought out and the service is spread throughout
the year, it should not be burdensome.
I am not looking for a lot of your time either. Given
the many types of community service already being provided by Virginia
lawyers (for example, serving on boards of non-profit organizations, volunteering
at homeless shelters and soup kitchens, coaching children’s sports
teams, mentoring another member of the community, and the like), all of
which count as community service, the goal of serving at least fifty hours
this year should not be difficult for most of us.
In the Virginia of our generation there are great needs
for non-legal community service and pro bono publico legal service by
lawyers. While 50 hours of community service by one Virginia lawyer alone
may not sound like it will have a big impact given these needs, the collective
efforts of hundreds, and hopefully thousands, of Virginia lawyers providing
this level of service will have a profoundly positive impact on the communities
across the Commonwealth. Imagine the Commonwealth of Virginia as a farmer’s
field and each of us as a farmer with a plow standing side-by-side the
entire width of the field. One pass across the field represents the span
of our generation. The depth of the plow represents the level of our involvement
in our community during our lifetime, and each of us has the right to
decide that depth for our plow. Each lawyer who sets the plow deeply will
turn more earth as he or she passes across the field, leaving their furrow
(or community) far more fertile, and ultimately more productive, than
would have been the case with a shallow plow setting. And if many of us
choose to set our plows deeply, the combined effect of our shoulder-to-shoulder
individual efforts will be far greater than we could ever have imagined.
I urge you to become a participant in this effort without delay. There
is an important role for you, and you are the one who gets to decide that
role. With your pledge, and that of the other Virginia lawyers across
the Commonwealth, the power of one lawyer will be transformed into the
force of an entire profession, serving and improving every community in
Virginia. Return to Top
Community Service
Program: Service with Heart
Jeanne F. Franklin
On Valentine’s Day, The Virginia Bar Association’s
Health Law Section and Young Lawyers Division inaugurated a public service
activity to help the public understand the value of having an Advance
Medical Directive (AMD) and to help individuals complete their own. The
pilot project was held that Saturday morning at the Northern Virginia
Community Hospital in Arlington.
The subject seems a depressing one any way you look at it. However the
thoughtfulness with which this program was designed and the skill with
which it was delivered created an unusual event. The agenda was a combination
of informative presentations by practicing attorneys and a physician,
followed by a general Q&A session. This program was no dry presentation
of law, facts and figures; the emphasis was on personal values, moral
issues, real-life family needs and how people can effectively face consideration
of the issues. The presenters brought a wealth of experience and insight
to the discussion. Panelists and audience alike spoke candidly about the
ramifications of such end-of-life decisionmaking.
Each member of the audience was provided a package of
material to use including a decision-making sheet or “Pros &
Cons” sheet, an outline of issues from a physician’s perspective,
a Virginia AMD form (modified from the Virginia statutory form)
and a tool kit that was derived (although also modified somewhat) from
the American Bar Association (ABA) model tool kit. The tool kit itself
contained simple work sheets designed to help an individual think about
such matters, to guide one on how to broach the subject with family members,
loved ones and any other chosen decisionmaker, what to do once an AMD
is signed and, if you are asked to be an agent, how to serve well.
Following the general Q&A session, the group broke
up to serve themselves from a buffet breakfast provided by the hospital,
and to review their toolkits if desired. Following that, each interested
participant was paired with volunteer attorneys for individual private
counseling and assistance.
While the turnout was small, the success of the program
was greater than expected. The program design, materials and presentation
were all right on target and effective. Participants asked if the program
could be repeated again in Northern Virginia (the plan has been to take
the program to other jurisdictions in Virginia) and volunteer attorneys
asked to be “asked again” if the program is repeated.
In short, something clicked. It may have seemed an odd
day on which to run such a program, but we had been trying to find a way
to market the program, inspiring people that it was important to do this
for someone you love. As unusual as it may sound, the theme was right.
Love was in the air!
Under the leadership of Young Lawyers Division member Molly Shuttleworth
Evans and Health Law Section Council member Michael Guanzon did a superb
job of developing the program materials, agenda and the telephone training
for the volunteer attorneys, with additional assistance from this reviewer.
Panelists were moderator Molly Evans, VBA Immediate Past
President Frank Thomas, and Dr. Bill Franklin, a cardiologist (and spouse
of this author). The quality of their presentations and their interactions
with the audience and each other provided a very special morning indeed.
The other volunteer attorneys were enthusiastic and provided
excellent individual attention to individuals requesting assistance. Congratulations
and thanks are owed to Barbara Beach, Uley Norris, Sarah Hennessey, Malloy
Evans, Amy Symons, Rachel Burke and Cori Smith for their participation
in the program.
Finally, special thanks are also offered to the Northern
Virginia Community Hospital and its director of marketing and business
development, Kathy Altman, who made all arrangements to donate an attractive
and comfortable forum for our pilot program.
Interested attorneys are asked to check www.vba.org for
news as to dates and locations of repeats of this program. You may also
call Molly Evans at (202) 466-8960 for further information about program
repeats. Return to Top
Legal Focus/Indigent Defense:
ABA report slams indigent defense in Virginia
(ABA News Service) — A new study, commissioned by
the American Bar Association Standing Committee on Legal Aid and Indigent
Defendants and released in February, concludes that Virginia’s indigent
defense system fails to adequately protect the rights of poor persons
accused of crimes, providing “little more than assembly-line justice.”
The nine-month study was done by The Spangenberg Group,
and is perhaps the most comprehensive review produced to date of the commonwealth’s
indigent defense system. The report has not been approved by the ABA’s
policy-making House of Delegates, and its recommendations do not represent
official policy of the association unless otherwise stated in the report.
Poor defendants in Virginia are denied fundamental fairness,
and in extreme situations innocent people are wrongfully convicted of
crimes, according to the report.
Key Factors
Inadequate resources and no oversight structure are the two primary factors
behind a system that fails to provide lawyers with tools, time and incentives
to adequately represent defendants. The shortcomings have persisted despite
30 years of studies and reports identifying the same problems and recommending
the same solutions. Because no official state entity effectively advocates
for indigent defense needs in Virginia, and elected officials have not
responded to previous analyses, there has been no meaningful way to seek
solutions, according to the report.
“The Commonwealth has an opportunity now to reverse
this history, and authorize creation of an indigent defense oversight
commission as a first step in moving toward fulfilling the promise of
the Constitution of the United States,” said ABA President Dennis
W. Archer in releasing the report.
“Recognizing Virginia’s current fiscal realities,
it may take some time to fully implement all of the necessary changes,
but the creation of an oversight commission is a crucial component of
bettering our indigent defense systems,” said ABA President-Elect
and VBA member Robert J. Grey Jr. of Richmond.
“This report, with its detailed findings and recommendations,
offers Virginia a great opportunity to move forward and effect real change
within the Commonwealth’s legal system, to assure that adequate representation
is provided to those Virginians for whom the state provides counsel,”
said Grey.
Other Findings
Among other findings were:
· Currently no official Virginia entity effectively
advocates for indigent defense.
· Virginia ranked last in average cost per indigent
defendant case among 11 states for which data were collected for FY 2002.
· Substandard practice is the accepted norm in
Virginia’s indigent defense.
· The deep systemic flaws put lawyers representing
indigent defendants at substantial risk of violating professional rules
of conduct.
· Court-appointed lawyers and public defenders
make very limited use of services such as expert witnesses that often
are essential to proper representation.
· Virginia’s statutory cap on fees for court-appointed
lawyers is the lowest in the country, and acts as a disincentive to assigned
counsel doing work necessary to provide meaningful and effective representation.
· The public defender system is greatly over-burdened
and substantially under-resourced.
· There is a great disparity between the resources
afforded to public defenders and to prosecutors, and there is an unfair
and illogical disparity in pay between court-appointed lawyers representing
parents in abuse and neglect cases and the guardian ad litem lawyers representing
the best interests of children in those cases.
Recommended Changes
The report recommends five major systemic changes:
· The General Assembly should fund indigent criminal
defense services in cases requiring appointed counsel at a level that
assures defendants receive effective and meaningful representation.
· The Commonwealth should establish a professionally
independent statewide indigent defense commission to organize, supervise
and assume overall responsibility for the indigent defense system. This
reform was enacted this year in S.B. 330 and H.B. 1056.
· The commission should have broad power and responsibility
for delivery of indigent criminal defense.
· The commission should adopt performance and qualification
standards for both private assigned counsel and public defenders, addressing
workload limits, training requirements, professional independence and
other issues, to ensure effective and meaningful representation.
· The commission should establish and implement
a comprehensive data collection system to provide an accurate picture
of services provided.
The Commonwealth provides for indigent defense with a
combination of 21 public defender offices serving 48 of 134 localities,
and court-appointed counsel who represent clients in all localities.
The report labeled the appointed-counsel fee caps “shocking.”
Maximum fees are $112 for misdemeanors or juvenile cases eligible for
jail or prison sentences, $1,096 for felonies punishable by more than
20 years of confinement, or $395 for all other non-capital felony cases.
No funds are available to pay investigators in appointed-counsel cases.
While 21 other states also cap fees for appointed counsel
in non-capital cases, the other caps are waivable and range up to $25,000.
The Virginia cap creates an incentive for appointed lawyers to steer their
clients to plead guilty, and appointed lawyers spend as little time as
possible on each case, the report said.
The report is posted on the ABA’s website at www.indigentdefense.org.
The study was supported by a grant from the Gideon Project of the Open
Society Institute and contributions from the ABA Standing Committee on
Legal Aid and Indigent Defendants, Covington & Burling and the National
Association of Criminal Defense Lawyers. Return
to Top
The VBA in History/1964:
HEW general counsel urged VBA members to help the indigent
from a speech by Alanson W. Willcox
“Enlisting Legal Services in the War on Poverty,”
an address by Alanson W. Willcox, general counsel of the U.S. Department
of Health, Education and Welfare, was delivered at the 74th VBA Annual
Meeting, July 4, 1964. The following article is an edited version of the
Willcox address.
Throughout the nation, as we observe this anniversary
of our birth, we recognize our debt to the Commonwealth of Virginia —
and especially to the bar of Virginia, for having furnished so many of
the bold and imaginative leaders who made possible our independence. Not
only our nation, but the entire world has benefited and will forever benefit
from their actions and their ideas.
It is not merely the attainment of independence that we celebrate today.
We honor those great men who based the move for independence upon a bold
assertion of the rights of man and the responsibilities of government.
Thomas Jefferson expressed it in the now-immortal words of the Declaration
of Independence:
“We hold these truths to be self-evident, that
all men are created equal, that they are endowed by their Creator with
certain unalienable Rights, that among these are Life, Liberty and the
pursuit of Happiness. That to secure these rights, Governments are instituted
among Men, . . . .”
Despite all the changes our world has seen in the 188
years that have passed since this pronouncement, it is as fresh and valid,
as bold and imaginative, as vital a goal for us to set our sights on.
as it was on that July 4 when the Representatives of the United States
of America in General Congress assembled proclaimed it to a “candid
world.”
But principles retain their force and vitality only as
they are applied to the present state of facts in an ever-changing world.
The truth is that today we are not applying these principles fully to
all our people. I have chosen as my topic the war on poverty declared
by President Johnson in his State of the Union Message, because that war
is in essence a challenge to fulfill the commitment of 1776.
The war on poverty, as I shall try to show you, is not
addressed simply to the supplementation of inadequate incomes. I shall
then pose some problems which those of us in the legal profession must
face, and I shall solicit your help in marshalling the special resource
of lawyers, in the form of legal services, to be joined with all the other
skills that are needed in a broad attack upon the conditions and the handicaps
that poverty reflects.
By a current and widely used yardstick, perhaps a fourth
or a fifth of the nation suffers from poverty. But whatever our yardstick,
there are far too many individuals in our cities, towns and rural areas
who are poverty-stricken. True, this is not a new condition. The poor
have always been with us and probably always will be.
Why, then, should we be so concerned at this particular
stage of history? The answer is in two parts. First, although our society
always has been concerned about the poor and always should be, there is
reason to believe that newly developed skills will enable us to make a
more direct and effective assault than heretofore upon the conditions
that lead to poverty, or — as you prefer — that stem from it.
Secondly, the victim of poverty is more and more isolated from the world
that the rest of us inhabit, more and more cut off from opportunity to
better his lot, while conversely our own awareness of his plight tends
to be remote.
In the world we know today, and the even more complex
world our children will live in tomorrow, poverty thus tends to be self-perpetuating,
and the conditions it breeds are increasingly incompatible with fulfillment
of the self-evident truths to which the Founding Fathers committed this
nation.
For too long we have thought of poverty primarily in terms
of a lack of money. The illiteracy, the lack of ambition, the poor health,
the failure to conform to accepted community mores — these and the
many other unhappy social patterns so often associated with lack of income
used to be written off as unchangeable at least through a deliberate application
of external forces. At best, each of these was considered to be a separate
problem, to be dealt with haphazardly. In an age when so much depends
upon education and vocational training, we have too often provided the
worst of our services to those who needed them the most. If the result
was unemployment and need, we would provide enough relief funds to enable
a family to buy some food, clothing and shelter, but commonly not enough
to keep it in robust health. When members of the family became ill, we
provided medical care and nursed them to health, then returned them to
the conditions which had led to poor health in the first place.
In any kind of war, too little and too late is wasteful
and ineffective.
In recent years, there has been a growing realization
that the many debilitative effects of poverty feed on one another and
in turn create still more harmful conditions, until finally none except
the very strongest individuals, or the few with exceptionally good fortune,
retains any hope of escape.
We have always admired the “self-made man” because he has been
able to rise from conditions such as these. He makes his escape through
his own heroic efforts, and perhaps without outside help. I am sure there
are persons in this room who have accomplished this feat, And if we include
parents and grandparents, a goodly number of us have risen from impoverished
families.
There is impressive evidence, however, that escape from
poverty without help from others becomes more difficult year by year.
Our admiration for the few who still can lift themselves by their own
bootstraps must not blind us to the fate of the many who cannot. If only
because escape has become so difficult, we need to lend all the help we
can, and to use to the full what wisdom we have even as we search for
new and better ways to help.
Just as medical science continues to increase its ability
to treat illnesses and to make its improved techniques more widely available,
so must we — all of us who comprise society — improve our knowledge
of how to treat social ills, and make the improved techniques as they
are developed more widely available. Unfortunately, not only do we lag
in developing techniques for treating social ills, but what is even more
inexcusable, we lag in applying the knowledge we now possess.
Among the brighter hopes, perhaps, are community action programs. Hopefully
here the result is a new emphasis on coordination of their efforts by
the many public and private social, educational, health and recreational
agencies which deal with impoverished families in a community — that
there is a new effort to deal with the problems of the poor in their totality
rather than piecemeal. Ideally an inventory is first made of the resources
available in the community for dealing with the problems of impoverished
families. After that a plan of action is developed and any new resources
and activities necessary to that plan are arranged. Finally, all agencies
cooperate to carry out the plan as a program to provide comprehensive
treatment.
Of course, the range of these services varies from place
to place, but in all cases it is necessary to deal with a broad range
of family problems. Much depends upon the success in making the families
feel, first, that someone — especially that the community— cares
what happens to them, and second, that something is being done to give
them a realistic opportunity to improve their lot.
Inevitably, experience has shown that in treating the multiple ills of
these families, legal services are in very many cases an indispensable
ingredient and has also shown that on the basis of present resources,
legal services are in many communities almost unobtainable.
As lawyers, we should readily understand the need for
our services. The attainment of justice is our business; it is the basic
reason for our existence as a profession. If the poor have less need than
others for the drawing of wills or deeds of trust, they have as great
or greater needs for service in other aspects of their lives. And when
their needs are unfulfilled, when the law is invoked so often against
them and so rarely on their behalf, it is small wonder that they may develop
a certain skepticism of society’s concern for them, even of its impartiality.
We lawyers, I suspect, bear a modicum of responsibility for the rebelliousness,
the disrespect for law, which we so loudly and properly decry.
In the field of criminal law, the right of the indigent
to legal services has by now been pretty well recognized. This recognition
stems partly from constitutional requirements and partly from application
of the rule of basic fairness that no man should have to face serious
criminal charge without the benefit of legal assistance.
Even in this best established area of legal services to
indigents, we can find much that needs improvement. In some jurisdictions
there are legal defender systems with varying degrees of effectiveness.
In some places the public defender is a full-time official paid from tax
funds. Too often, however, there is no system of any kind; the defense
lawyer is selected for his inexperience rather than his experience; the
government has not provided adequately for compensating him for his service;
the defendant, without funds for investigation or other expenses incident
to a trial, must either plead quilty or be pitted quite unequally against
the resources of government.
But these deficiencies are nothing compared to the situation where no
vestige of legal services is provided a defendant charged with a crime.
Presumably, in view of the 1963 decision of the Supreme Court in Gideon
v. Wainwright, which held that the furnishing of counsel upon request
of an indigent defendant is a constitutional requirement for a fair trial
in a state criminal proceeding, legal services of some kind will be available
at least in felony cases.
Whether or not the right to such services is a constitutional
mandate in cases involving misdemeanors, we cannot ignore the circumstance
that conviction on such a charge can carry deprivation of liberty for
as much as a year. As lawyers, we should work to secure the benefit of
effective legal counsel to indigents in these cases regardless of the
scope of the constitutionally protected right.
When we go outside the area of criminal law, provision
for legal services is even more inadequate; it ranges from the scarce
to the nonexistent.
It is true that the poor man with a tort claim or an injury
compensable under Workmen’s Compensation can usually obtain competent
legal representation on a contingency basis. I know also that many lawyers
in private practice give much uncompensated time to provide legal services
to persons unable to pay for them. In some cases, this is provided under
organized auspices; in others, it is done on an individual basis. Even
if this were otherwise a satisfactory arrangement, however, it can do
little more than scratch the surface, It may take care of some dramatic
situations or precedent cases; it may provide legal services for those
who, although poor, have an acquaintance who is a practicing attorney.
It can hardly be expected, however, that any practicing lawyer, whose
time and advice, as Lincoln has said, make up his stock in trade, can
undertake to represent any great portion of the poor in his community
without receiving compensation from some source. The simple fact is that
today there is no provision for such compensation in most situations where
legal aid is needed.
I am aware also that in many of our cities we have formal
legal aid organizations which enjoy the respect of the bar. These organizations
are generally voluntary groups and resources are provided by the bar,
community contributions, local tax revenue or a combination of these.
Despite the valiant efforts of many dedicated individuals in this work,
however, the scope of legal assistance usually is sharply restricted,
either because of an inadequacy of resources or as a matter of policy.
Legal aid societies as operated in most communities today handle such
problems as wage attachments when an indigent client is a defendant, take
limited types of domestic relations cases, usually where support problems
are involved, and assist in eviction cases when the client is on the receiving
end of a notice to quit.
The scope of problems which are accepted as proper subjects
for legal aid agencies must be expanded. Domestic relations matters should
be handled more freely. Separation and divorce are obtainable among the
middle- and upper-income classes because these people can afford attorneys’
fees and court costs. Those without money have as their only alternatives
to living in an unhappy marital situation, desertion, adultery, and possibly
the consequent birth of illegitimate children, with its attendant social
stigma and psychological damage.
In commercial transaction cases many ounces of prevention
are needed, particularly in the aspects of consumer education. Much could
be done to save low-income families from suffering injury at the hands
of an exploiting retailer or an unscrupulous credit agency — or in
helping them when unfair advantage has been taken.
These shortcomings are mentioned not to criticize the
organizations or the many dedicated lawyers who have worked hard and done
much in the face of inadequate resources. The fault is not theirs, but
ours for failing to support them better and for failing to help find additional
ways to prevent hardship and injustice to those who are unable to pay
for legal services.
It is significant as well as discouraging that the inadequacies
of which I have been speaking exist under conventional concepts of legal
services. But even if we filled those gaps we should still be far from
meeting that need. The mobilization for the war on poverty requires that
in addition to filling existing gaps in conventional services, we find
a way to provide a far greater range of legal services which look toward
solving some of the problems of socially-troubled families.
There are a number of areas in which we must be prepared
to provide new kinds of legal service. Of vital importance is the need
for legal services which arises as a result of the expanded activities
of government at all levels.
Let us look first at regulatory activities. Your clients
have frequent contacts with administrative agencies concerning such matters
as taxes, zoning, licensing and procurement. Legal services are not essential
in every contactm but clients do find need to consult you sometimes when
a problem has arisen or to keep a problem from arising. The fact that
a citizen can retain you to represent him goes a long way toward assuring
that he will receive the treatment to which he is entitled at the hands
of a government agency.
I say this despite my conviction that the officials who
administer local, state and federal programs would stand toward the top
of any group in competence and dedication to duty. But no one would deny
that administrative agencies can and do make mistakes; as with any group,
no official is infallible, and some are more fallible than others. And
not infrequently a lawyer can bring out facts or considerations that the
administrator, with the best will in the world, would otherwise overlook.
The poor person who has one legal problem very likely has half a dozen,
although he may not recognize them as such. In a more conventional area,
he may be on the receiving end of a complaint or creditor’s action,
or he may be charged with a commission of crime. He may have made installment
purchases, which — if he only knew — he had a legal right to
rescind. All too often he is the victim of usury. His or her desire for
remarriage may run afoul of a prior marriage which, even though it has
long since terminated for all practical purposes, plainly calls for legal
service to remove the impediment.
In the area of relationships with administrative agencies
which we have not yet adequately recognized as requiring legal services,
it may happen for one reason or another that an official does not give
an indigent person the welfare payment or the public housing accommodation
to which he is entitled under the law. He may be rejected in his attempt
to obtain vocational education or rehabilitation. The Housing Code may
guarantee him better quarters than his slum landlord is furnishing him.
Perhaps our department erred in denying his claim for Social Security.
Of course, it is not and should not be necessary to consult
an attorney in order to apply to these agencies. But substantial numbers
of applicants need help if they are to present their strongest claims,
and they should not be constrained, as they too often are now for want
of legal advice, to accept uncritically whatever may be the initial conclusion
of an employee of the public agency. In many situations, no doubt, a social
worker or other nonlawyer can serve the purpose, but in many other cases
only the counsel of an informed lawyer can suffice.
Those who have worked closely with these troubled people
tell us that securing justice for them has an important bearing on the
outlook and motivation of the family and of the entire neighborhood, for
it demonstrates that society and its chief instrument of order, the law,
are not hostile forces bent upon oppressing and keeping them at the bottom
of the heap. For this reason if for no other, our help is needed in the
new effort now emerging under the name of the war on poverty.
Up to this point we have not always combatted poverty
as vigorously as we should. In some fields, notably in education of children
of poor families and in welfare services, our failure to commit adequate
resources has not even been pennywise, and it certainly has been pound
foolish.
But there are also some bright spots. Over the past years a number of
state and local programs, many with federal financial support, have stepped
up services to families plagued with poverty. Vocational training, vocational
rehabilitation for the handicapped, various welfare services, and the
community action programs I have referred to are examples of what we can
do if we have the will. The Civil Rights legislation, although not directed
at poverty as such, has important implications because the evils of poverty
are accentuated by and feed upon discrimination.
In communities not served by such comprehensive programs
there will be equal need for our help — a more silent need, perhaps,
and a less visible one. But for the same reasons the need will be there,
and wherever we look and listen, in whatever city or town or countryside,
we shall find it.
The task I set myself is to present you with the problem. I would that
I could offer you the answers. It is true that answers must vary from
place to place, but I do not want to hide behind that circumstance. The
truth is that we do not yet know how to furnish the legal help that is
needed by the poor and to do it with fairness to the members of our profession.
It is obvious and wholly unoriginal to urge that there
should be more legal aid and defender organizations, and that they should
be better supported. I should like to suggest also that each state and
local bar group should have an active committee on aid to indigents.
You may say that I am asking you to help generate more
unpaid work for lawyers, and under present circumstances this unfortunately
is true. There is much that lawyers would gladly do, I am convinced —
much that they could do without inordinate demands on their time —
if only there were easier means of contact with the poor. I have enough
faith in our profession to believe that, even at financial sacrifice,
it would render a good deal more service to the poor if it were made aware
of the problems of the poor. At least the experiment seems to me worth
trying.
I shall sum up quickly.
All men are created equal, and all men are entitled to
the equal protection of the law. More and more we are coming to realize
that outward and formal equality is not enough, and that the substance
of their legal rights is too often beyond the reach of the poor. The courts,
as Gideon’s case so vividly illustrates, are doing much to make equality
come alive for the poor man faced with a criminal charge. My plea is that
we strive also to make it a reality in the ordinary day-to-day lives of
our less fortunate citizens. Only so can we give vitality to the great
principles of democracy to which our nation dedicated itself 188 years
ago today. Return to Top
Across the Commonwealth
VBA Summer Meeting will offer abundant programming, scholarly speakers,
social events and more
The Virginia Bar Association’s 114th Summer Meeting,
to be held at The Homestead July 15-18, promises to be one of the liveliest
gatherings in VBA history, with continuing legal education sessions on
timely issues, track programming for civil litigation and criminal law
practitioners, unique non-legal programs for members and guests alike,
social and recreational activities and a performance by players from the
Staunton-based Shenandoah Shakespeare
Company.
Three general sessions will highlight the schedule. On
Friday, July 16, at 10:30 a.m., the VBA Criminal
Law and Judicial Sections will join forces to sponsor “The Virginia
Death Penalty: There is More than Just the Concept,” a discussion
of some of the systemic issues presented by Virginia’s capital punishment
laws.
That afternoon at 2 p.m., ethics authority Tom Spahn will
lead an interactive presentation on “Conflicts Between Lawyers and
Their Clients,” utilizing hypothetical situations to focus on professional
responsibility issues. Spahn’s program is sponsored by the VBA Law
Practice Management Division.
On Saturday, July 17, the VBA Committee on Special Issues
of National and State Importance will present a panel of nationally recognized
and diverse constitutional law scholars who will discuss the significant
opinions of the term of the Supreme Court ofthe United States that will
have concluded just prior to our Summer Meeting.The panel will be moderated
by Professor A.E. Dick Howard of the University of Virginia Law School,
a renowned Constitutional scholar and principal author of the current
Virginia Constitution. Panelists include Akhil Amar of Yale Law School;
Steve Calabresi of Northwestern School of Law, a co-founder of the Federalist
Society; John Jeffries, Dean of the University
of Virginia School of Law; and Nadine Strossen of New York University
Law School, President of the American Civil Liberties Union. This program
has been annually organized by Dick Howard for presentation at the Fourth
Circuit Judicial Conference and broadcast by C-SPAN. The VBA, through
the Special Issues Committee, has stepped in this year as the presenter
of this signature discussion in light of the cancellation of the 2004
Fourth United States Circuit Judicial Conference.
A total of 11 CLE programs will be offered during the
meeting, including Professor Ronald Bacigal’s fourth annual review
of criminal law decisions of the Virginia Supreme Court and Judge Jane
Marum Roush’s sixth annual review of the Supreme Court’s civil
decisions.
Also on the agenda is the traditional Legacy Series Luncheon,
at which Dr. James Kelly of the Virginia Historical Society will speak
on “American Visions: Symbols of Liberty and Freedom in the U.S.”
The traditional Friday evening banquet will feature a
lively performance by Shenandoah Shakespeare, traveling from its base
at Staunton’s Blackfriars Playhouse. This acclaimed young company
has earned a reputation for excellence on both sides of the Atlantic by
“blowing the cobwebs out of Elizabethan drama,” as described
by Bob Mondello of NPR. Come see what all the excitement is about!
On Saturday evening, American Bar Association President
Dennis Archer will be the guest of honor for the traditional LexisNexis
reception.
In addition to the regularly-scheduled activities and
amenities provided by The Homestead, members and guests will have a variety
of special opportunities for fun, with an 18-hole golf tournament on Thursday
and Friday, a culinary demonstration for spouses and guests on Friday,
a golf scramble and tennis round-robin on Saturday, and a bowling social
for young lawyers and their families on Saturday night after the banquet.
There are three ways to make room reservations at The
Homestead: by phone, toll-free at 1-800-838-1766; by mail, to Group Reservations,
The Homestead, P.O. Box 2000, Hot Springs, VA 24445; or by fax to (540)
839-7922. To guarantee the special group rate, please reserve your room
by June 15.
Brochures have been mailed to all current VBA members,
and a printable PDF copy of the brochure is available at www.vba.org.
You want to be there... reserve your room and register
today! Watch for more details to come in future issues and online. Return
to Top
Former delegate receives Elder Rights Award
Former Delegate Karen Darner of Arlington received the
Virginia Elder Rights Award on March 23 at the joint conference of the
Virginia Elder Rights Coalition (VERC) and the Virginia Guardianship Association
in Williamsburg.
Darner, a speech pathologist in the public schools, served
in the General Assembly from 1991 until 2004, following a two-year stint
in the Peace Corps. As a legislator, she supported and led numerous efforts
on behalf of aging, disabled and low-income Virginians, tenants, consumers,
public school students, and immigrants, among others. In 1999, she introduced
a successful elder rights bill, which recognized the importance of a strong
and independent elder rights program in Virginia. Many of the initiatives
she sponsored continue to benefit older Virginians in a variety of areas.
Previous recipients of the Award include former Commissioner
on Aging Thelma Bland-Watson and Betty Booker of the Richmond Times-Dispatch.
Return to Top
Model Judiciary finalists appear before Supreme Court
Twenty-two students representing 13 Virginia high schools
appeared before the Supreme Court of Virginia on March 25 in the 29th
Annual Model Supreme Court, the climax of the annual Model Judiciary Program,
co-sponsored by the VBA Young Lawyers Division and the Virginia YMCA.
The purpose of the program, created in 1975, is to provide
high school students with an opportunity to learn about Virginia’s
judicial system by playing the citizenship roles of attorneys, jurors
and witnesses in simulated trials. Approximately 2,000 Virginia students
participate in the Model Judiciary Program each year.
David J. Ervin of Collier Shannon Scott PLLC in Washington,
D.C., passed the chairmanship of the Model Judiciary Committee to Daniel
T. Campbell (Willcox & Savage, Norfolk) at the event.
Hon. Leroy R. Hassell Sr., chief justice of the Supreme Court of Virginia,
serves as the committee’s honorary chair.
Members of the Model Judiciary Committee include Mark
Coward and Eric R. Maschal of the Virginia YMCA in Lynchburg, Jeffrey
Poretz of Alexandria, Gene Hart of Harrisonburg, Benjamin D. Leigh of
Leesburg, W. Benjamin Pace of Richmond, Suzanne M. Perka of Winchester,
Ann Powell of Fredericksburg, John Robertson of Christiansburg, Yama Shansab
of McLean, Elizabeth L. White of Newport News and Chuck Winder of Hampton.
Students participating in the final round were as follows:
Ashley Jarvis, Joy Clark and Brea Watkins, Bayside H.S.; Justin Knight,
Faith Christian School; John Gregory and Ryne Scott, Benedictine H.S.;
Jennifer Hayes and Kimberly Holihan, Cox H.S.; Matt Ogren, Trinity Episcopal
School; Lance Murashige and Divya Nettimi, Thomas Jefferson H.S.; Julian
Campbell, Tallwood H.S.; Sara Haptman and Sara Turner, James Madison H.S.;
Thomas Silverston, Robert E. Lee H.S.; Winnie Octave Siclait, St. Gertrude
H.S.; Jason Leibowitz and Elizabeth Roughead, Norfolk Collegiate School;
Joseph McCarter and Ryan Rasmus, Bishop Ireton H.S.; Alison Linas and
Nitya Moothathu, Collegiate School.
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In Memoriam
A.C. Epps
1916-2004
President of The Virginia Bar Association, 1966-67
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