The Pros of Mandatory Pro Bono Work

On the occasion of New York State's "Law Day" this past Tuesday, the Chief Judge for the New York Court of Appeals announced that beginning next year, all individuals seeking admission to the New York State Bar will be required to perform 50 hours of pro bono service prior to admission.  The rationale for the new rule proposed by Chief Judge Jonathan Lippman is to respond to the growing need for affordable legal services among the poor. 

There's no doubt that legal services are unavailable to a wide swath of the American population.  In fact, the country's largest provider of legal services to the poor, the Legal Aid Society, turns away approximately eight out of every nine people seeking legal help with civil matters because it simply does not have the resources to take on the case load.  Obviously, requiring a huge group of people to perform pro bono work will help to close this gaping statistic.  Approximately 10,000 people apply every year to the NY State Bar, so multiply that by 50 hours per person and an additional 500,000 hours of pro bono work will be made available to individuals who previously couldn't find affordable help. 

I'm a firm believer in utilizing my training as a lawyer to provide pro bono services.  Over the course of the last three years, for example, I have spent a substantial amount of time representing a Maryland State prison inmate in a civil rights lawsuit against a correctional officer who assaulted him while escorting him back to his cell.  I also serve on the Board of Directors of a nonprofit foundation and apply my legal training regularly to assisting the organization's efforts to solidify its infrastructure and ensure compliance with relevant tax laws.

It's no surprise then that I strongly support the idea of a pro bono requirement.  The work is personally enriching and has a direct impact on our society and on the life of the indiviudals to whom the legal assistance is provided.  Nevertheless, I believe that Chief Judge Lippman's proposal charges the wrong group of people with the responsibility of providing legal services for the poor.  Rather than require aspiring lawyers to provide pro bono services, lawyers already admitted to the State Bar should be mandated to perform a certain number of hours of pro bono work each year.  Just because pro bono work means essentially free or severely discounted legal representation, it does not mean that clients should "get what they pay for."  That is, it's unfair to penalize an individual for his or her inability to pay for legal representation by having the least experienced attorney available represent him or her.  Individuals seeking admission to the State Bar also typically have a lot on their plate including, among other things, working towards their law school graduation, sitting for the State Bar exam and finding a job that provides professional satisfaction and a steady source of income. Adding a pro bono requirement could negatively impact their ability to focus on these other very important issues.

Instead of imposing a pro bono requirement on lawyers seeking admission to the state bar, it makes more sense to have (a) lawyers admitted within the past year perform 50 hours of pro bono work, or (b) all lawers admitted to the NY State Bar perform a minimum of 25 hours of pro bono work.  The first proposal is modeled after the District of Columbia Bar, which mandates that newly admitted lawyers take a day-long professional ethics course in the District of Columbia within one year of their admission or risk suspension from the bar.  The second proposal reduces the number of pro bono hours but vastly increases the pool of legal providers.

Both of these proposals are consistent with Judge Lippman's goal of increasing the number of legal providers available to represent the poor in legal matters that arise.  They have the added bonus of being more practical and easier to implement and should serve as a model to other State bars considering the difficult challenge facing the provision of legal services to the poor.

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I apologize for my extended absence from writing, but I have been in the midst of dealing with a significant transition at my day job.  Fortunately, everything is back on track and I'm happy to report that I've moved firms.  You can read more about this transition here: http://legaltimes.typepad.com/blt/2012/04/after-three-decade-run-dc-boutique-janis-schuelke-wechsler-dissolves.html

Officer Corruption?

The last few days, the NY Times Metro section has started to read like a rap sheet for New York City police officers. First came the story of the police commander who pepper-sprayed protestors during the opening days of the Occupy Wall Street protests. Then, we learned about the police officer who was charged with violating the civil rights of an African American man whom he falsely accused of resisting arrest. And finally, today's section featured the story of a police officer convicted of plotting to burglarize an individual's apartment because the officer believed that the apartment was used as a safe house to stash a drug dealer's wad of cash.

Besides the concern that instances of New York city policy officers exceeding the bounds of their authority are proliferating, each of the arrests/convictions that have made the news this week shed some insight into the hierarchy of violations that police officers can unfortunately commit in the course of their duties. At the bottom of the ladder are violations that result in internal discipline but are generally not considered to break the law. It's unclear whether pepper-spraying a group of women who were already penned in arises to a violation of state criminal laws (e.g., assault) since the Manhattan district attorney is still investigating the incident, but the police force has already determined that the pepper-spraying commander's actions violated internal police policy and docked the officer 10 days of vacation. In other words, thus far, the police officer's actions exceeded the bounds of his authority set forth in the police department's officer manuals but did not violate any state or federal laws.

By contrast, the police officer who came up with a convoluted plan to break into someone's home, incapacitate him with a stun gun and then steal $900,000 in cash that he believed was hidden under the floor boards, not only wins more points for stupidity but also broke the law. Whereas the pepper-spraying commander only crossed the bounds of police department policies, the actions of the officer looking to get rich quick clearly rose to the level of breaking New York State criminal laws (in addition to internal police department policy).

Finally, we come to the case of the white police officer who allegedly falsely accused an African American individual of resisting arrest. In the hierarchy of abuse of a police officer's authority, this incident claims the top rung. Not only did the officer take away someone's liberty by arresting him and having him detained for 36 hours without probable cause, he did so with clear animus and bias towards the individual's racial and ethnic background. If the allegations are proven true, then this police officer has violated the police department's internal policies, state criminal law (extortion, making a death threat) and federal law for violating an individual's civil rights while acting under the color of state law. Acting under the color of state law means that the officer violated the individual's civil rights by arresting him under false pretenses while serving as an official representative of New York State.

What makes this last incident so egregious is that the police officer took full advantage of his position of authority to prey on his victim and to detain him without cause based on his racial classification. It also is particularly worrisome because a violation of civil rights - as opposed to a hair-brained scheme to burglarize someone's apartment - is often emblematic of a decaying culture within a department, one that gives police officers a prejudiced outlook on the society they are asked to oversee and that is supported by official department policies. The pepper-spraying incident was resolved through an internal discipline process that will help to deter similar violations from occurring again. Since department policy is often at the root of a civil rights violation however, internal discipline and existing department policies are generally insufficient to remedy the issue and prevent recurrences. Several New York State legislators have indeed requested a federal investigation into the New York City police department's stop, question and frisk policy for precisely this reason. It appears that such an investigation may now be worth undertaking.

Omi

On Sunday, October, 2nd, two days after we celebrated Rosh Hashanah, the Jewish New Year, together as a family, my beloved grandmother, "Omi," passed away. Here is the eulogy I read at her funeral:

Omi,

You told us many many times how special we were to you, but today we are here to tell you how special you are to us. One of the things that I loved so much about you was that you were an incredibly good phone talker and conversationalist. Not everyone has this gift but you did, and it meant that we could talk for just five minutes or for an hour – about anything from family life, to meals to prepare, to stocks to invest in, to local sports games or even just to the weather - and nearly every time our conversation left me feeling happy and fulfilled. And it also always felt like it was too short – like you would have been happy just schmoozing on the phone with me all day if you could. The last few years, you ended almost every conversation by telling me and David and Tami how happy you were for us. Usually you told us how happy you were that we had each met someone we loved or that we’ve found jobs that we’re succeeding at or just how much you loved us and how much you appreciated our phone call or us coming to visit and how much it meant to you.

It was almost as if you wanted to make sure to tell us how proud you are of the people we have each become and that the lives that we will go on to live will be rich with love and joy and happiness and less of the suffering and hardship that you endured in your lifetime, just in case the day came when you weren’t there to tell us that anymore. Well, I just want you to know how much I’m going to miss our conversations and the way you made me feel when I heard you tell me that. And how much I’m going to miss that feeling that I could just pick up the phone and know that you would be on the other end.

I wanted to spend a couple of minutes talking about this past weekend because it seems as if you orchestrated your departure from us by making sure that we’d have one last chance to celebrate and to spend time all together, that you could convey your messages and lessons to us one more time and that we’d all be with you at the hospital yesterday. At your insistence, you and Opi came over for dinner on Wednesday night to celebrate the beginning of Rosh Hashanah, even though you weren’t feeling well and we told you that we could wait to see each other at one of the many other meals that we were going to have during the weekend. You instilled in us the value that family gatherings are a way to enjoy each other’s company and this was your way of telling us that once more. On Thursday, Opi came by himself to join us for lunch. Usually either you both came or if one of you wasn’t feeling well then you both stayed home. But on Thursday you let Opi come by himself – perhaps a message to us and to him that we must continue to live life and to enjoy each other’s company even once you aren’t with us anymore. And on Friday night, you and Opi joined us at our dear family friends the Feinbergs for Shabbat dinner. Since moving to the area nearly twenty years ago our family friends have adopted you as their family friends and even treated you as their Omi. Your joining us for Friday night reminded us how important our community is and how much we should value their friendship in the weeks and years to come.

I know that you're not much of a shul goer given how much you lost in the Holocaust, but on Thursday and Friday in shul we read as part of the Rosh Hashanah liturgy the Netaneh Tokef. Every year when we read that I think back on the lives that have been lost and I feel grateful that another year has arrived and that you and Opi are still here. And I always wonder, what will next year bring? Who of my grandparents will be with us the next time we gather to say this prayer? Please I always pray, let them be inscribed in the book of life for just one more year so that next year we’ll all be together again and so that I can still count myself as one of the luckiest of my peers to enjoy the love and companionship that comes with having all five of my grandparents still alive.

This year I thought that you would be with us this upcoming weekend when at Yom Kippur we’ll read the Netaneh Tokef again, and even that you would be there next year with us because you had so much to look forward to. In fact, that was how you persevered through your osteoporosis. Your determination set the example and taught me that if and when I ever endure a hardship or loss in my life, the reason to go on living is because of the reward and fulfillment I get from those around me and from celebrating important milestones. This year you have so much to look forward to: David & Elana’s wedding in two months, and the upcoming birth of your first great grandchild. Aliza and I were so excited to tell you a couple of months ago that she was pregnant. Since then, I couldn’t wait for the day when we would come over to Leisure World for a visit and you would be sitting in your reclining chair in the living room and we would put our baby in your arms to hold for a few minutes and the baby would look up at you and you’d both smile at each other and we would know that our baby was touched by my vey special Omi. Aliza and I will be sure to tell our baby and all of our children how very special you are but I’m sad that they will only get to experience your love through our memories and not through their own experiences with you.

Finally, on Saturday night, we went to see Bethoven’s 9th Symphony with you and Opi. I can picture in my mind the glint in your eyes and the smile you made when you wanted something that you knew you shouldn’t have or when you made a joke with some bite to it as if you didn’t know what you were saying even though you were fully aware that you could get away with it because who would think that the adorable woman who claimed that she never got older than 29, spoke with a lovable accent and always was friendly and engaging might not be as innocent as she came across? That’s how I picture you on Saturday night, as you arranged a full choir and orchestra while wearing some of your finest jewelry, including the beautiful engagement ring that Opi gave you 60 years ago but that you rarely ever wore anymore, and while also surrounded by your family to deliver the sendoff that the matriarch of our family so richly deserves, without actually telling us that the time has come for us to say our goodbyes. In the last 24 hours, each of us has looked over the words to Ode to Joy again and have thought how fitting it was to hear the choir echo the message of optimism and hope for a better tomorrow that will be one of your lasting gifts to us.

Oh friends, not these sounds!
Rather, let us raise our voices in more pleasing
And more joyful sounds!

Joy, beautiful spark of divinity
Daughter of Elysium,
We enter, drunk with fire,
Heavenly, your sanctuary.
Your magic reunites
Those whom social custom has parted
All men become brothers,
Where your gentle wing rests.

One of my fondest memories I have of you is our summers at Virginia beach where you and Opi would rent the same rooms at the Dunes hotel on the boardwalk on the 6th floor with terraces overlooking the ocean for our family. And I remember how you’d wake up every morning before everyone else and just sit on the terrace waiting for us to wake up. I always loved coming out and sitting with you as we looked out on the ocean watching for dolphins and just enjoying the scenery and quiet as the boardwalk woke up. I wonder now what it was that you thought about while it was just you on the terrace, alone with your thoughts, with the hardship of your past, and the mix of physical pain with love and fulfillment that you had in the present. I can imagine that sitting there then was one moment where you felt completely at peace with yourself and with the world. That’s how I envision you now Omi, just sitting on the terrace as the sun begins to rise looking out over the ocean with us behind you and a smile on your face. I miss you.

Joining Equality Maryland

I was recently invited to join the Board of Directors for Equality Maryland, an organization that is leading the fight for same sex marriage equality in Maryland. Here is a portion of the essay I submitted when asked why I was interested in joining the board.

My decision to apply to serve on the Board of Equality Maryland represents another step on the road of personal engagement in the fight for marriage equality. As a law student, first traveling to New Orleans to participate in relief efforts for victims of Hurricane Katrina and then working in Montgomery, Alabama at the Equal Justice Initiative, I bore witness to the legacy of the civil rights movement and to the importance of standing up for the disenfranchised. I was inspired by the work of Martin Luther King and learned that the civil rights struggle was not defined by the number of bullets that were fired or the amount of blood that was shed, but by the call for equality and for the recognition that all citizens are entitled to certain fundamental rights that our state and federal governments must protect.

Then, eighteen months ago, I exercised my right to marry the partner of my choosing, the woman of my dreams. Since then, I have enjoyed not only the spiritual fulfillment of sharing my life with my spouse, but also the legal benefits of being married. That enjoyment however, has been tempered by the fact that close friends and family are unable to share in the right to get married and in the benefits of marriage simply because the partner they have fallen in love with shares their gender. This message became even more personal when my cousin, who resides in New York, finally married his partner of 37 years this past Sunday and expressed to me the joy and validation of their relationship finally being recognized by the State of New York.

And, finally, in the time since I moved back to the area after law school I have become active in state and local politics. Through my work advising Luke Clippinger in his successful run for the Maryland House of Delegates, as well as my interactions with the many friends and community leaders who I have come to know, it has become clear to me that same sex marriage is among the most important and exciting initiatives of our time. Enactment of a marriage equality bill will ensure that all Marylanders enjoy the right to marry the partner of their choosing, and will reinforce the image of Maryland as a state that is welcoming to people whatever their background, their politics or their sexual orientation.

I want to be a part of Equality Maryland to take the next step in my personal journey and to have an impact on the struggle to gain statewide recognition for marriage equality.

Not Just Another Execution

This past Thursday night, Humberto Leal Garcia Jr., a Mexican citizen, was executed in Texas. His death - and more precisely, the way it came about - could have far reaching implications at home and abroad.

Garcia was convicted of the heinous kidnapping, rape and murder of a 16-year old in 1994. By virtually all accounts, he was guilty of the crime. The central issue in his case however was that he was not informed of his right to contact the Mexican embassy when he was arrested. Seemingly a harmless oversight, no? In fact, the failure to inform Garcia of his right to call the Mexican embassy violated the Vienna Convention on Consular Relations (to which the United States is a party) and could have altered the course of his trial and his ultimate sentence. Rather than have the considerable resources of the Mexican government and consular officials at his disposal to prepare his defense, Garcia was represented by a Texas public defender. (State public defenders, especially in the south, are notoriously underfunded, overworked and sometimes inexperienced).

This is where things start to get a complicated, but they're important to my point, so I'll take a minute to review them:

1) In 2004, the International Court of Justice in the Hague ruled in favor of Garcia and held that American courts must review cases where the defendants claimed they suffered harm by not being allowed to call their consular officials first.

2) In 2005, President George Bush issued a memorandum supporting the ICJ's decision and telling Texas state officials to comply with it. Despite being the state's favorite son (at least at the time), Texas officials chose to ignore President Bush's memorandum.

3) In 2008, the Supreme Court held that the U.S. is bound by the ICJ's decision. However, it also held that the President alone could not force the states to comply with the ICJ decision; Congress had to act as well.

4) Congress - perhaps not surprisingly - did not act on the Supreme Court's decision right away. Instead, the Senate waited until June 2011, MORE THAN 3 YEARS LATER, to propose legislation forcing Texas to comply with the ICJ.

5) Garcia's execution date was scheduled for July 7th, which didn't give Congress enough time to pass the legislation. So, Garcia appealed up to the Supreme Court to delay his execution so that Congress could pass the bill. He also asked Governor Rick Perry (the same governor that is about to throw his hat into the ring and run for the GOP presidential nod) to delay his execution. President Obama implored both the Supreme Court and Governor Perry to delay Garcia's execution. So did numerous foreign governments, including Mexico.

6) Thursday evening the Supreme Court rejected Garcia's appeal by a 5-4 vote. Governor Perry also refused to delay Garcia's execution. Garcia was executed by lethal injection Thursday night.

Garcia's execution is a dizzying, impressive - and perhaps unsettling - example of how our federalist system of government works. In Thursday's decision, a majority of the Supreme Court held that to delay an execution in order to allow congress to pass legislation would be the equivalent of enacting the legislation itself. In other words, the Court feared that it would be violating the separation of our branches of government that we hold so near and dear to our national identity. On the other hand, the four dissenting justices (led by Justice Breyer, the Court's leading "internationalist") argued that the Supreme Court's refusal to delay the execution was overstepping the executive branch's authority to govern our foreign relations, since executing Garcia would result in irreparable harm to our relations with other countries. As Governor Perry's determination to allow the execution to proceed demonstrated, the rights of states to enforce their criminal laws took priority to the will of the federal executive, and even to the decision of the ICJ. Similarly, national sovereignty also triumphed over the authority of a multi-national/international institution (the ICJ).

In my mind, our system of government - the separation of the three branches and the federalist system allowing states to enforce their criminal laws - worked in the case of Mr. Garcia. The Supreme Court decided the scope of its authority, and the governor of the state responsible for applying its criminal laws to Mr. Garcia's actions made a determination that was wholly within his discretion, President Obama's will and the will of other countries be-damned.

Nevertheless, the question that we must ask ourselves is not whether the process was correct in this instance, but whether the desired outcome was achieved. My answer to this question is that it was not. A man whose rights were violated in such a manner as to taint the validity of his sentence was executed. Our country overruled the decision of an important international institution, thereby damaging the effectiveness of the ICJ as well as our own credibility in the international arena. By choosing to ignore Mr. Garcia's right to contact his consular officials, we put Americans abroad who are arrested in their host country at great risk of facing a similar deprivation of their rights.

And therein lies the rub: If our system leads to an unwanted result then it suggests that perhaps our system needs fixing. It's hard to point to our government institutions and our model of democracy as the light that outshines all other nations if they ultimately place our own citizens in harm's way and ignore the rights of the very people that our system claims to protect.

I'm not suggesting that we need to embark on "Extreme Makeover: American Government Edition." But, I do think we need to reflect on changes that should be made to ensure both that the processes in our system of government are working AND that they're achieving the desired results. Two immediate steps come to mind: First, we need to put into place a mechanism by which ICJ decisions are enforced such that we can't sidestep their rulings so easily. Most significantly, Texas officials should not have been allowed to ignore President Bush's memorandum requesting compliance with the ICJ decision. Second, Congress must be held accountable for inexplicably delaying legislation until it was too late to prevent Mr. Garcia's execution before the violation of his rights was fully examined. And, going forward, Congress cannot be allowed to sit on its thumbs when the Supreme Court has expressly directed Congress to be the ultimate arbiter of a matter in controversy. In such an instance, Congress must state its intention to support or reject the Supreme Court's decision in a timely fashion, thereby allowing the parties involved to seek alternative remedies.

Taking these steps are not intended as a way to honor the memory of a violent criminal over that of his victim. They will, however, protect the rights of the accused in our country as well as the interests of our citizens traveling and living abroad, advance the success of our system of government, and further repair America's credibility abroad and cement its position as a global leader.

Casey Anthony is Not OJ Simpson

Several commentators (click here and here) have explained why the jury's verdict on Tuesday acquitting Casey Anthony of murdering her daughter was justified. In brief, the legal standard for a criminal conviction is that the jury must believe beyond a reasonable doubt that the defendant committed the crime of which she is accused. Casey Anthony's jury of her peers was ultimately not so convinced.

To elaborate: the lack of concrete forensic evidence tying Casey Anthony's DNA to her daughter's remains and the absence of a cause of death determination created enough reasonable doubt to overcome the circumstantial evidence introduced by the prosecutors in support of the state's allegations. Most notably, the prosecution offered expert testimony that a bad smell in Casey's car was chemically linked to Casey's decomposing body. (smelly car = guilty of murder? That's a tough connection to make.) As one juror noted, Casey Anthony might not be innocent of her daughter's murder, but there was not enough evidence to convict her.

While both cases were overwhelmed by media coverage, captured the nation's consciousness, and resulted in acquittals despite public opinion to the contrary, OJ Simpson's acquittal in the murder of his wife was more likely achieved by a combination of a superb and highly paid defense team and prosecutorial mistakes ( Exhibit #1: "if it doesn't fit, you must acquit"). Casey Anthony's acquittal on the other hand was the inevitable and justified result of insufficient evidence, despite the prosecution's best efforts and a decidedly mediocre defense attorney. (Jose Baez was refused admission to the Florida Bar for eight years because he owed child support payments, was representing Casey Anthony on a pro bono basis and was only practicing law for three years when he took on the case).

So, while justice may not have been served for Caylee since the true circumstances of her death may never be known, in my opinion, our justice system worked for Casey Anthony, even if the outcome reached was contrary to public opinion.

I Wonder What Mitt Romney Thinks of Flag Day

An appropriate question to be asking in honor of Flag Day today:

In the GOP debate last night, Mitt Romney said (in response to a question about spending on federal disaster relief) that "every time you have a chance to take something from the federal government and send it back to the states that's the right direction. And if you can go even further and send it back to the private sector that's even better." Extending Mitt Romney's logic to it's natural conclusion: Why bother having the federal government at all then if Romney's goal is to deconstruct it? It seems to me that people could easily take the slippery slope down from Romney's argument at the debate to saying that all the states should simply form their own countries and then reach some form of economic cooperation agreement to encourage mutual trade and perhaps a coordinated military defense (something along the lines of the EU).

Is that really the direction Mitt Romney wants to take our country?