FEATURE CLE: HOW TO BE A HERO

(AND A LAWYER)

CLE Credit: 1.0 Friday, June 20, 2014 1:30 p.m. - 2:30 p.m.

Exhibit Hall I Northern Kentucky Convention Center

Covington, Kentucky

A NOTE CONCERNING THE PROGRAM MATERIALS

The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program, in dealing with a specific legal matter have a duty to research original and current sources of authority.

Printed by: Evolution Creative Solutions 7107 Shona Drive

Cincinnati, Ohio 45237

Kentucky Bar Association

TABLE OF CONTENTS The Presenter .................................................................................................................. i Is Public Interest Law Right for Me? ................................................................................ 1 10 Hero Lawyers Who Helped the Poor and Marginalized .............................................. 3 You Make a Better Door than a Window The Kentucky Access to Justice Commission: Opening the Door for Civil Legal Services ....................................................................... 7

THE PRESENTER

Brad Meltzer Miami Beach, Florida

Brad Meltzer is the #1 New York Times bestselling author of The Inner Circle, The Book of Fate, and seven other bestselling thrillers. In addition to his fiction, Brad is one of the only authors to ever have books on the bestseller list for Non-Fiction (History Decoded), Advice (Heroes for My Son and Heroes for My Daughter, collections of heroes throughout history, from Jim Henson, to Rosa Parks, to Thomas Jefferson), Children’s Books (I Am Amelia Earhart and I Am Abraham Lincoln), and even comic books (Justice League of America), for which he won the prestigious Eisner Award. He is also the host of Brad Meltzer’s Decoded on the History Channel. Mr. Meltzer credits his success in so many different mediums of popular culture to his belief that ordinary people change the world. It is this core belief that runs through every one of his projects. Brad Meltzer's personal story is inspirational, taking him from the loss of his father’s job, to the #1 spot on the bestseller list. Twice. It is a story filled with perseverance, focus, and the commitment to one’s dream. And thanks to his recent nonfiction hits, Heroes for My Son and Heroes For My Daughter, it is a story filled with the inspirational tales of the Wright Brothers, Abraham Lincoln, Rosa Parks, Jim Henson, Mr. Rogers and more. It is a story that has been told to corporate leaders, industry heads, U.S. Senators, Supreme Court Justices, and even recurring invitations from a former U.S. President. His books have spent over a year on the bestseller lists, and have been translated into over twenty-five languages, from Hebrew to Bulgarian. Meltzer has played himself as an extra in Woody Allen's Celebrity and earned credit from Columbia Law School for writing his first book, which became The Tenth Justice. Before all of that, he got twenty-four rejection letters for his true first novel, which still sits on his shelf, published by Kinko's. Meltzer has appeared on NBC, CBS, CNN, Fox News, Court TV, and the top TV shows in the country, including The Today Show, The O’Reilly Factor, Good Morning America, The Early Show, Fox & Friends, Cavuto on Business, Lou Dobbs Tonight and dozens more. He’s been featured everywhere including Vanity Fair, USA Today, People Magazine, Time Magazine, Newsweek, Entertainment Weekly, New York Times, Washington Post, and nearly every major newspaper in the country. Meltzer is a graduate of the University of Michigan and Columbia Law School.

i

ii

IS PUBLIC INTEREST LAW RIGHT FOR ME? Michelle Balaklaw

The decision to pursue a career in the legal field is often driven by the desire to help others. The diverse nature of the law provides practitioners with a wide range of practice areas that allow them to fulfill this desire in different ways. In particular, public interest law aims to further interests shared by the public, and allows attorneys to promote positive social change by working with, and advocating on behalf of, the underrepresented. Public interest law reflects broad concepts of public concern, such as poverty, labor disputes, child welfare, environmental preservation, and consumer defense. The different types of careers and fields of public interest law are as expansive as the concepts that fall within the practice area. For those interested in effecting change on the individual level, legal services organizations allow attorneys to engage in hands-on legal work through representation of indigent individuals in civil matters. Similarly, working as a public defender allows attorneys to provide legal services in criminal matters. In contrast, policy advocacy organizations aim to make changes that impact society as a whole through legislation and regulation. Another option is to take a legal staff position in a government agency or organization. These entities exist at the federal, state, and local levels, and seek to enforce rules and regulations within the realm of their particular focus. Finally, for those who are not necessarily interested in making public interest law a career but rather an avocation, many law firms promote involvement in public interest law through pro bono opportunities. When deciding whether to pursue a career in public interest law there are additional factors that must be considered. There are certain frustrations inherent to the public interest sector. Such frustrations include decreased earnings, unpredictable clients, and multiple issue cases. Therefore, it is important that public interest attorneys be passionate and self-motivated, because satisfaction will come from personal achievements, not from a paycheck. Additionally, public interest attorneys must be able to work well in diverse settings with limited resources. Yet, despite these frustrations, pursuing a career in the field of public interest law is incredibly rewarding. Public interest attorneys are able to give a voice to those without one, and are often able to see the direct benefit of their hard work and effort in impacting the lives of others.

1

2

10 HERO LAWYERS WHO HELPED THE POOR AND MARGINALIZED Reprinted from www.online-paralegal-programs.com/hero-lawyers/

In our broken system, legal help can be so expensive that the innocent and needy are often forced to suffer because they cannot afford the help they need to legally maintain their rights. But there is hope for those who cannot hire an expensive lawyer to win a case in their favor: pro bono lawyers across the country are fighting public interest and social justice cases to defend those who deserve but cannot afford adequate legal assistance. Here are ten heroic lawyers whose activism has changed both lives and laws. Tony Tolbert Tony Tolbert, a lawyer who learned his giving mentality from his lawyer father, decided he wanted to give his home up to a needy family for one year – entirely rent-free. "You don't have to be Bill Gates or Warren Buffet or Oprah," Tolbert said of his act of kindness. And he made Felicia Dukes and her four children, who had been living in a homeless shelter, very happy when he chose them to occupy his space for that year while they worked to get back on their feet. "Kindness creates kindness," Tolbert said. Jose Pertrierra Jose Petrierra is more than just a veteran immigration attorney; he's also a kind and concerned man who spends one night a week on Spanish language television in Washington, D.C. answering viewers' questions about immigration laws. Petrierra has been dedicating his time to this endeavor for the past ten years. Petrierra also offers advice to those who call into his office with immigration concerns. His recommendations are sound and thorough. "Get a shoe box, and put every single document that you have that shows your continuous residency in this country in that shoe box," Petrierra says to questions regarding deportation concerns. Petrierra focuses on helping immigrants from around the world, but has also taken on high-profile cases such as the Elian Gonzalez case, in which he won the father custody of Elian. But "It's always good to be on the side of the poor," Petrierra says of his typical workload, and says that this outlook is greatly attributed to how much he was effected by the Capitol Hill debate over refugee law and war in Central America. Todd Belcore Todd Belcore was recently named "Young Lawyer of the Year" for 2013 by the Illinois State Bar Association for his outstanding service to the poorer communities in that state.

3

Belcore assists low-income people with criminal records work through the legal system to find jobs despite obstacles and barriers, such as background checks and jobs unwilling to hire those with criminal histories. Not only does he focus on individuals with needs regarding employment and housing, but he has helped to pass six laws whose goals are to create more opportunities for these people and also to lower the incarceration rates in the area. Belcore has taught forty-three workshops on expungement, Certificates of Good Conduct, and other such helpful and educational topics to over 1,000 men and women in need. He has also filed petitions on behalf of ninety individuals who are "lost" inside the system, fighting against over-incarceration. When he's not working, Belcore is still working; he is active in community service and has recently founded the Chicago International Social Change Film Festival. Ralph Abascal Ralph Abascal died in the 1990s, but his pro bono attorney work for the poor and needy will not be soon forgotten. Abascal took on over 200 cases to help fight for farmers, welfare recipients, the elderly, disabled, and needy. Abascal's work was so significant that it's the reason DDT is banned today; his lawsuits resulted in not only that but the eventual ban of approximately 85 percent of pesticides in use in the 70s. Abascal fought against Reagan's failed effort to cut federal funding from welfare, won a motion to disallow illegal immigrants from being banned from public colleges, helped draft the 1986 federal immigration reform law, worked hard to advocate women's right to choose and helped change the way states are required to discard their toxic chemicals. The list goes on and on. Without Abascal, a number of laws in the states may be different today. "Ralph was probably the most successful lawyer in California, if not the nation, in using legislation and litigation to affect people in positive ways," said friend and coworker Brad Seligman. The Wilmer Hale Law Firm The controversial Wilmer Hale law firm has handled some touchy and unpopular cases, but nothing stands out like their defense of six Algerian suspects held] in Guantanamo Bay since 2004 without any charges. The Wilmer Hale law firm provided an estimated $17 million in legal help to the terror suspects for free as the six men sat patiently waiting to be served any kind of justice. "We understood back in 2004 that this was about as important as anything we could take on," says Boston-based partner Stephen Oleskey, leader of a thirty-lawyer team in defense of the six detainees. "This was clearly a legitimate effort to solicit lawyers to help out with a significant constitutional issue."

4

As a consequence, for the first time in U.S. history, the Supreme Court ruled that Congress had "Improperly suspended their constitutionally guaranteed right to challenge their detention." However, it wasn't entirely victorious: Congress soon after passed new laws preventing the detainees from challenging their detention or being released from the prison. David Smith David Smith is a multi-tasker; he's a law professor, charity fundraiser, Russian orphanage volunteer, and a pro bono attorney. Listed as one of the "Best Lawyers in America," Smith is representing the plaintiffs in Cobell v. Salazaar, a class action case fighting on behalf of half a million Native American beneficiaries of the Individual Indian trust. "The Cobell case is important for a variety of reasons," he says. "First, it has been a landmark case in holding the government accountable for breaches of its trust responsibility toward Native Americans. It has led to numerous other lawsuits filed by tribes and others seeking an accounting of trust funds." Smith has received multiple awards for his pro bono work, mostly serving as a guardian to abused or neglected children. Kilpatrick Townsend & Stockton LLP The Atlanta based firm Kilpatrick Townsend & Stockton LLP helps to assist lower income grandparents and relatives of the children they adopt due to neglectful, abusive, or generally absent parents. By supporting these families, Kilpatrick Townsend & Stockton LLP are helping keep children in loving family homes and out of the foster care system. With their help, grandparents can officially adopt their rightful grandchildren in cases where they might otherwise not be able to afford the legal help to win them the right to do so. David Bryson Another deceased attorney whose work still affects people to this day, David Bryson was a housing rights advocate for the poor for years. Described as a "Central figure in the advocacy for public housing residents and residents of all subsidized housing developments," and as having a "crucial role." Temporary director and deputy director for the National Housing Law Project of Oakland, California, Bryson spent over twenty years engaged in such pro bono work and advocacy. Bryson died in 2000 of lung cancer when he was fifty-eight, but passed his methods and advice for supporting the poor on to multiple lawyers and advocates first. He received multiple awards, including the State Bar's highest honor the Loren Miller Legal Services Award, for his charity, and was involved in significant cases such as winning from the Supreme Court the right for public housing residents to sue over alleged violations of federal housing laws.

5

Gary Blasi When Gary Blasi decided, on somewhat of a whim, to join California's legal apprenticeship program under an attorney instead of traditional law school in 1971, he never dreamed that he would eventually be awarded the highest award the State Bar ever doles out. Blasi first became an advocate for social justice when he volunteered to assist in the defense of Vietnam vet and anti-war activist Ronald Kovic after Kovic was arrested protesting Nixon's re-election in LA. He then noticed the high rate of eviction in lower income neighborhoods in Echo Park. He took action then, too, creating a Tenant Action Center where free legal services could be obtained by tenants two nights a week. For the next forty years, Blasi would continue to fight for the needy, poor and/or pigeonholed in the fight against injustice. Blasi's cases have helped to change the laws regarding how and when people in lower-income areas can be evicted, preventing unlawful tactics from being used and going on to start the Legal Aid Foundation of Los Angeles' Defense Center in 1983. He has since become a professor of law and founded the UCLA School of Law's Epstein Program in Public Interest Law and Policy, which trained hundreds of lawyers who would go on to do the same type of important and remarkable work that he did himself. Sid Wolinsky A third winner of the Loren Miller award in the state of California, Sid Wolinksy pretty much started off at the other end of the spectrum. Once an entertainment lawyer in Beverly Hills, Wolinsky said there was "very little opportunity to do what we now call public interest law" when he worked at what he calls his "second choice." For over forty-three years, Wolinsky has participated in disability rights advocacy and created multiple programs to assist the poor with legal issues and rights. He has created low-income housing in San Francisco, participated in the win for equal funding in California education via Serrano v. Priest, and forced Los Angeles to consider the disabled when planning for disasters. Wolinsky's work for the disabled lives on in New York City and includes fighting for wheelchair accessibility in NYC cabs and subway stops, and he continues to fight for disabled veterans who suffer from PTSD and may not be getting the medical care they need. On retiring, Wolinksy says "Why would I want to do that?"

6

YOU MAKE A BETTER DOOR THAN A WINDOW THE KENTUCKY ACCESS TO JUSTICE COMMISSION:

OPENING THE DOOR FOR CIVIL LEGAL SERVICES Jacqueline S. Duncan

Reprinted from the 2011 Kentucky Law Update Handbook On October 14, 2010, Chief Justice John D. Minton signed an Order of the Kentucky Supreme Court creating the Kentucky Access to Justice Commission (KAJC). In so doing, Kentucky joined nearly two dozen states where supreme courts have formed similar Commissions to engage the judiciary in delivering civil legal aid to low-income citizens.

“The need for legal aid in Kentucky is great and it’s growing,” said Chief Justice Minton. “Kentucky Legal Aid receives 4,000 calls a month requesting legal help and closes about 24,000 cases each year, which provides critical assistance to 68,000 low-income families and children who have nowhere else to turn for help. Those numbers may seem high, but in fact about 55 percent of the people who apply and are eligible for legal aid services are turned away because of lack of resources.” “What sets these commissions apart from other legal aid efforts, such as blue-ribbon task forces, is the involvement of the judiciary at all levels,” said Justice Bill Cunningham, who represents the 1st Supreme Court District in Western Kentucky. “The importance of judicial leadership cannot be overstated. There must be an ongoing partnership between the judiciary and the state and local bar associations, legal aid providers, law schools, elected officials and other community leaders. Providing access to justice especially for the poor and disadvantaged is a centuries old tradition of the legal profession for judges and lawyers. It is embedded in our codes of professional conduct and in who we are and what we do. When we take our oath as attorneys, we “swear (or affirm) to support the Constitution of the United States and the Constitution of this Commonwealth,” each of which guarantees equal protection of the laws and access to our courts. SCR 3.130 VII, Kentucky Rules of Professional Conduct, states,

As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should … work to strengthen legal education. In addition, a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel. A lawyer

7

should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.

SCR 3.130 VII (emphasis added). Our legal system has been designed by lawyers and for lawyers, and the legal profession espouses to the ideals of equal justice for all, without regard to financial means. Too often today, however, the average claimant finds the door to the courthouse, access to justice, dependent on the amount of money he or she has to pay for an attorney. BACKGROUND ON AJCS “Access to justice” and “rule of law” terms have become almost trite and commonplace in the legal community rather than terms reiterating basic and fundamental rights dictated by our common law and Constitutional heritage. Access to justice commissions remind lawyers, judges, government leaders, and others involved that these are not mere mottos sometimes inscribed on government buildings, but core values of our civilized society and legal profession. Access to justice commissions in other states are showing positive and remarkable results in their efforts to generate interest and support for civil legal aid and pro bono programs and thereby are increasing help for those with unmet legal needs. The present day Access to Justice movement dates back to the 1990s. The Texas Access to Justice Commission created in 2001 is credited as being the first formal model. Leaders of less formal AJC groups from other states soon followed Texas and moved to solidify their efforts with various modifications to their respective commissions. As of spring 2011, the American Bar Association Resources Center reported that twenty-six states had created commissions with similar goals. They included Alabama, Mississippi, North Carolina, South Carolina, Tennessee, West Virginia and Wyoming. Another four states had access to justice coalitions and thirteen others had state bar-based committees with broad access to justice leadership charge.1 Access to justice commissions nationwide are supported by the American Bar Association and the national Conference of Chief Justices. Kentucky Supreme Court Chief Justice Minton said the Conference on Chief Justices passed Resolution 23 in 2006 that acknowledged the importance of judicial leadership in establishing partnerships with the state’s legal community to ensure equal access to justice. The resolution called for states to seek results in three areas: 1. To remove impediments to access to the justice system, including physical,

economical, psychological and language barriers; 2. To develop effective plans for funding for civil legal services for those who have

no meaningful access to the justice system; and 3. To expand assistance available for self-represented litigants.

1 American Bar Association, Standing Committee on Legal Aid and Indigent Defendants, State Access to Justice Commissions, http://www.americanbar.org/groups/legal_aid_indigent_ defendants/initiatives/resource_center_for_access_to_justice/state_atj_commissions.html.

8

KENTUCKY ACCESS TO JUSTICE COMMISSION (KAJC) The KAJC is “created in recognition of the need to expand access to civil legal representation for people of low income and modest means…” Order, Supreme Court of Kentucky, RE: Establishment of Kentucky Access to Justice Commission, p. 1 (October 14, 2010) (hereinafter “SCT Order). Section 14 of the Kentucky Constitution guarantees a remedy “by due course of law” for everyone and open and speedy access to our court system. Id. Every lawyer admitted to practice in Kentucky is sworn to uphold this state, as well as federal, Constitutional principle. See Kentucky Constitution, Section 228, Oath of officers and attorneys. The SCT Order provides for a commission of twenty-five (25) appointed members and five (5) ex-officio members with each serving three year terms. Fourteen of the members are appointed by the Chief Justice to represent each of the of the seven Kentucky Supreme Court districts (two from each). Four judges or justices are appointed by the Chief Justice to represent each of the four divisions of the Kentucky court system. The Chief Justice also appoints a circuit court clerk as a member. The remaining seven of the twenty-five voting members serve by virtue of their office or may appoint a representative to serve on his or her behalf. These members are the KBA President or an appointee from the Kentucky Bar Association’s Board of Governors; a representative from Kentucky civil legal aid programs; the Governor of Kentucky or a representative appointed by the Governor; the Speaker of the House or his or her appointee from the House of Representatives; the President of the Senate or his or her appointee from the Senate; and the Kentucky State Law Librarian. The five non-voting members represent each of the following: the three law schools in Kentucky, the Kentucky Sheriff’s Association, the Administrative Office of the Courts, the Kentucky Justice Association and the Kentucky Defense Counsel. Judicial involvment and leadership will be critical. The Kentucky Supreme Court justices have already willingly and eagerly participated in the KAJC meetings and plans are to continue their involvement. In addition, the Administrative Office of the Courts is also represented on the Commission and will help with the judges as well as work to implement any plans or projects. Judicial education will be provided at various judicial colleges to inform about the KAJC and to guide judges on how they can assist and improve pro se litigants and pro bono participation. In the creation of the KAJC, the Kentucky Supreme Court deliberately chose to involve non-legal professions through the Supreme Court appointments to ensure representation from a cross-section of the community. The founding members of the KAJC include, among others, a banker, a newspaper editor, pastors, a labor leader, education professionals and business leaders. The emphasis of the KAJC will be to support those programs that provide legal services to those who cannot afford legal representation in civil matters: civil legal aid programs, pro bono programs and pro se initiatives. A broad outline of responsibilities set forth in the Order will guide the Commission’s work. The Order states, “The KAJC is charged with the following goals, purposes and responsibilities: 1. Identify the current and future needs of the legal services community in providing

access to justice to the poor and financially disadvantaged in Kentucky;

9

2. Develop and establish a strategic statewide plan for delivery of legal services to the poor and financially disadvantaged in Kentucky;

3. Develop strategies and ideas to increase resources and funding for access to

justice in civil legal matters and to make recommendations to appropriate entities to ensure that the resources and funding are applied to the areas and organizations of greater need;

4. Work to improve funding, resources, support, development and delivery of civil

legal services to low income people; 5. Assist in access to justice through self-representation and use of volunteer

lawyers; 6. Expand the delivery, support and development of civil legal aid through the

development of committed government leaders and increased public education on civil legal aid matters and its impact on society;

7. Work to reduce barriers to the justice system by addresssing existing proposed

court rules, procedures, and policies that affect access to justice for poor Kentuckians;

8. Monitor and evaluate the effectiveness of the statewide system and service

providers and periodically evaluate the progress made in fulfilling their respective responsibilities; and

9. Be directly responsible to the Supreme Court for reporting and making

recommendations concerning access to justice to the court system by persons in the Commonwealth of Kentucky. “

SCR Order, (D) Responsibilitites, p. 4. As with most commissions, the work will be performed primarily by various committees and, if necessary, specially appointed task forces. The KAJC has several committees, each of which will be chaired by someone on the commission but the committee members may also include other interested parties, lawyers and non-lawyers. Committees may meet physically or by telephone conference and will report regularly to the Commission. The initial committees are Administrative, Donated Legal Services (DLS), Education and Awareness, Legal Subject Area, Libraries, Funding and Development, Self-Representation, Strategic Planning, and Technology. Committees are scheduled to begin meeting through the 2011 summer months.

The KAJC also has appointed a special task force on veterans’ issues and Justice Will T. Scott is serving as its chair. Veterans’ issues will serve as the centerpiece for the initial work of most of the committees. For example, the education and awareness committee will work on ways to educate and raise awareness of unmet legal needs of veterans or get information to veterans on how they can get legal help. It may also work with the DLS committee to raise awareness among the legal community as there are CLE programs planned to encourage lawyers to donate legal services specifically on topics for veterans. Donated legal services may consider how to get lawyers to donate

10

legal services for special veterans’ projects. (As of the writing of these materials, the DLS committee is scheduled to meet in June 2011). The Kentucky Supreme Court’s initiative to create the KAJC speaks volumes to the Court’s desire to meet the needs of all people and ensure fairness and equality in our court system. The justices have also demonstrated their personal commitments with their deliberate and thoughtful appointees and their interest in attending the KAJC meetings. Chief Justice Minton attended the inaugural meeting of the Commission and Justice Scott attended and spoke at the second. Justice Cunningham, as the Court’s representative, has attended both meetings. As hoped, their interest has spread to other government leaders as Governor Steve Beshear has expressed his support for the Commission and plans to attend a meeting when his schedule allows. OTHER STATES’ EXPERIENCES With the leadership of the Kentucky Supreme Court, the Kentucky Bar Association, members of the bar, government and community leaders, the KAJC will help change and improve Kentucky’s means of handling so many unmet civil legal needs. The Mississippi Access to Justice Commission produced a video to help educate and raise awareness of civil legal needs and the KAJC may consider a similar video. In the meantime, these stories are not unique to Mississippi and, more likely than not, persons in your county, in your community, have faced similar problems. You can find the video at http://www.msatjc.com/atj_video.asp. OPENING THE DOOR: PROVIDING MEANINGFUL ACCESS TO THE COURTS Our second President of the United States, John Adams, captured the essence of pro bono service in a 1761 letter:

“[T]o what greater object, to what greater character, can we aspire as lawyers to assist the helpless and friendless in a worthy cause...To devote your skill and energy to the plight of another, without the promise of a material reward for oneself, is what sets us apart as professionals.”

This evaluation accepts -- and does not attempt to measure -- the intrinsic value of pro bono work; namely, donating legal expertise and service for the public good. At the announcement of the creation of the Kentucky Access to Justice Commission, Justice Bill Cunningham (First Supreme Court District) commented on pro bono:

We’d like to see a jump in pro bono work by Kentucky’s attorneys. In 2009, volunteers with legal aid pro bono programs helped 5,368 people. The Kentucky Bar Association is reporting that its members increased their pro bono hours by 18 percent for a total of 14,687 hours. We’re moving in the right direction, but we must accelerate these efforts if we want to reduce the gap between those who can access legal services and those left without.

11

PROJECT OBJECTIVE The objective of the KyVLP is to improve access to the judicial system for low-income Kentuckians with civil legal needs by increasing the number of volunteer lawyers, developing pro bono programs and cultivating a culture among the bar which encourages pro bono work. The core of its work is to promote and encourage compliance with Supreme Court Rule 3.130(6.1), “Donated legal services” rule, adopted in 1990. It states,

A lawyer is encouraged to voluntarily render public interest legal service. A lawyer is encouraged to accept and fulfill this responsibility to the public by rendering a minimum of fifty (50) hours of service per calendar year by providing professional services at no fee or a reduced fee to persons of limited means, and/or by financial support for organizations that provide legal service to persons of limited means. Donated legal services may be reported on the annual dues statement furnished by the Kentucky Bar Association. Lawyers rendering a minimum of fifty (50) hours of donated legal services shall receive a recognition award for such service from the Kentucky Bar Association.

SCR 3.130(6.1) defines what is “pro bono” in Kentucky -- how much time, the type of services needed, at what cost (if any), and who should receive the services. The rule urges the lawyer to voluntarily render public interest legal service by: • Rendering a minimum of fifty (50) hours of service per calendar year • By providing professional services • At no fee or a reduced fee • To persons of limited means • And/or by financial support for organizations that provide legal service to persons

of limited means While the elements may seem straightforward, practicing pro bono has become rather subjective and the rule is often misconstrued or distorted. The basic elements of the rule should be clearly understood. First, SCR 3.130(6.1) sets fifty hours as a “minimum” amount of time to render. Frequently, bar organizations and lawyers speak of the “aspirational” goal of giving fifty hours of donated legal services. “Aspirational” denotes achievement and seeking beyond that which is required. SCR 3.130(6.1) does not set fifty hours as an “aspirational” goal – something of ambition or for which to strive. Over and beyond the minimum fifty hours would be “aspirational.”

Next the rule directs what the lawyer should do: render “public interest legal services” … “by providing professional services….” Lawyers often give of their time to a broad range of activities and services for non-profit and charitable organizations, as well as civic, political, religious and professional organizations. The rule asks lawyers to provide professional services. A lawyer’s “professional services” are defined by SCR 3.020,

12

the practice of law: any service "involving legal knowledge or legal advice, whether of representation, counsel or advocacy in or out of court, rendered in respect to the rights, duties, obligations, liabilities, or business relations of one requiring the services.” SCR 3.020. To truly donate legal services under SCR 3.130(6.1), the volunteer activity should meet the definition of the practice of law under SCR 3.020. In other words, does a person need a law license to engage in this activity? If so, then the work may qualify as donated legal services. SCR 3.130(6.1) also requires that the legal services should be provided at no fee or at a reduced fee to persons who are unable to pay. Kentucky’s rule has no commentary on this portion of the rule but the corollary ABA Model Rule 6.1 provides some guidance. To be “without fee or expectation of fee,” ABA MR 6.1 comment [4] states,

[T]he intent of the lawyer to render free legal services is essential for the work performed to fall within the meaning of [pro bono]. Accordingly, services rendered cannot be considered pro bono if an anticipated fee is uncollected, but the award of statutory lawyers’ fees in a case originally accepted as pro bono would not disqualify such services from inclusion under this section. Lawyers who do receive fees in such cases are encouraged to contribute an appropriate portion of such fees to organizations or projects that benefit persons of limited means.

Id. (emphasis added). Finally, SCR 3.130(6.1) directs that the donated legal services be provided to persons of limited means and/or by financial support for organizations that provide legal service to persons of limited means. Comment [2] states:

The rights and responsibilities of individuals and organizations in the United States are increasingly defined in legal terms. As a consequence, legal assistance in coping with the web of statutes, rules and regulations is imperative for persons of modest and limited means, as well as for the relatively well-to-do.

The guidelines governing the provision of free civil legal aid ensure that those served have neither the income nor resources to pay for legal assistance. Calculated at 125 percent of the 2011 Poverty Guidelines, eligibility for civil legal services in Kentucky are generally:

13

Persons in Family Kentucky

1 $13,612.50

2 $18,387.50

3 $23,162.50

4 $27,937.50

5 $32,712.50

6 $37476.50

7 $42,262.50

8 $47,037.50 See, Federal Register, Vol. 76, No. 13, January 20, 2011, pp. 3637-3638, setting forth poverty guidelines. These figures are multiplied by 1.25 for the eligibility determinations. Thus, to be eligible for free civil legal assistance, a family of three (3) would have no more than a take home pay of $11.58 per hour, forty hours a week, fifty weeks a year, under the above guidelines. KENTUCKY’S PRO BONO PROGRAMS The need for lawyers to donate their legal services through Kentucky pro bono programs is great. Civil legal aid programs turn away over half of those who are eligible for its services because they lack staff, resources and funding to hire the attorneys necessary to provide legal representation. These clients have been screened and determined to meet the guidelines set by Legal Services Corporation (LSC) and state civil legal aid programs, yet cannot be served. Civil legal aid programs send these clients to pro bono programs that seek volunteer attorneys who may be willing to take their case. Attorneys frequently claim that they do their pro bono “on their own” and are reluctant to sign-up with any formal program. To ensure the work falls within the intended scope of SCR 3.130(6.1) and to be the most efficient in case management, however, lawyers should donate their legal services through an organized pro bono program for the following reasons: 1. Civil legal aid pro bono programs carry malpractice insurance to cover volunteer

lawyers; 2. Coordinators screen clients for income and case eligibility; 3. Litigation costs can be waived by filing in forma pauperis motions; 4. Coordinators can often assist with filing the necessary paperwork; 5. Coordinators sometimes have forms; 6. Mentors or legal aid staff with expertise are available;

14

7. Free and reduced cost CLE is offered for volunteers; 8. Coordinators help manage clients; 9. Pro bono programs need information about your pro bono work to support

funding.

Pro bono programs want to assist volunteers. Signing up through local programs does not mean the client or case will be sent to a volunteer without consultation. Local program coordinators contact the volunteer attorney first to ask if they are able to take the case at that time. If a problem arises, you can call the local coordinator for assistance. For example, if the case becomes more involved than originally anticipated, then the lawyer should contact the local coordinator. If the client becomes particularly difficult to deal with or fails to keep appointments, the local coordinator should be contacted. If you take cases when a client walks in the door but cannot afford to pay, then ask the local program for a “reverse referral.” Either you or the client should contact the local pro bono program and advise that you have agreed to accept representation of the client but would like the client to be screened for eligibility under the civil legal aid pro bono guidelines. Either you or the local program coordinator will need to fill out an intake form getting basic information such as income, number of dependents, employment, expenses, type of case, adverse party, etc. Assuming the individual qualifies and you have accepted representation, then the local coordinator can share any general information, such as forms, and otherwise assist to the extent possible. Your pro bono hours can be documented and the statistics on the case will assist with funding requests. PRO BONO MAKES CENT$ Donated legal services or reduced fee legal services for the client does not mean you as a volunteer lawyer go without gaining substantial benefits and payment other than monetarily. Some of the benefits and pay back for doing pro bono are: 1. Develops basic skills; 2. Independence; 3. Good business marketing; 4. Community involvement; and 5. Builds networks. Providing civil legal aid saves social costs as well. For example: By representing people with disabilities in their applications for federal disability

benefits (SSI and SSDI), legal aid brings millions into the Commonwealth;

By recovering child support, alimony, equitable property settlements and health insurance coverage for domestic violence victims and their children, legal aid

15

allows families to live free of their abusers and reduces the need for state support.

Those who live in public or subsidized housing begin to pay a larger

share of the rent. Because they can afford child care, victims are able to return to the

workforce, contributing to the state’s tax base. When they obtain orders requiring their abuser to provide health

coverage, the state saves state healthcare dollars. Domestic violence is costly to the community, including medical care for

injured victims, special education and counseling for affected children, police resources and prison for perpetrators.

A 2003 study by Colgate University and the University of Arkansas

reported that legal aid is the only service that consistently brings down the level of domestic violence in a community.

By representing low-income elders and people with disabilities whose claims for

Medicare coverage have been unfairly denied, legal aid improves the well-being of the Commonwealth’s residents and saves the state from paying high medical costs for which it would otherwise be liable.

Providing legal assistance to enroll eligible clients into state health care through

programs such as a medical-legal partnership saves healthcare dollars. Uninsured individuals are more likely to go to local emergency rooms for

treatment which is more expensive than being seen at a doctor’s office. Illnesses are treated sooner and less likely to escalate to emergency care

or critical stages that may otherwise require hospitalization. Children are more likely to get well-care check-ups and immunizations

which aid in prevention of illnesses and lead to healthier children. Children get treatment sooner which minimizes absences from school.

CONCLUSION Representing those who are living in poverty differs in many respects from representing wealthier, financially stable or corporate clients. Those living in poverty often come from generations of poverty and may have different mindsets and understandings of every day matters than those from the middle class. As a result, their cases often present different types of challenges. Most all agree that doing pro bono, however, can be some of the most fulfilling work of their legal careers.

16

REPORT OF KENTUCKY VOLUNTEER LAWYER PROGRAM

The Kentucky Volunteer Lawyer Program was initially funded by the Donated Legal Services (DLS) fund which was established in 1991. Two dollars ($2.00) from each member’s KBA annual dues is allocated to the DLS fund, with the exception of young lawyers and judges. Judges’ dues allocate $1.00 to the DLS fund. From 1991 through 2005, the DLS fund accumulated monies but no monies were spent. In 2005, the Access to Justice Foundation requested a grant to establish a statewide pro bono program, now known as the Kentucky Volunteer Lawyer Program. The following provides a report on the pro bono participation and activities of the KyVLP over the past few years.

Kentucky Volunteer Lawyer Program -- Pro Bono Participation Number of Attorneys Reporting Pro Bono Work

on Annual Dues Statement (Self-Reporting)

As of June 30

2007

2008

2009

2010

# of KyAttys2

15,586

15,664

16,312

16,412

Attys Reporting Pro Bono

2,153

2,109

2,443

2,624

% of Attys Reporting Pro Bono

13.8%

13.4%

14.9%

15.9%

Number of Hours Reported by Attorneys on Annual Dues Statement (Self-Reported)

Year

2007

2008

2009

2010

Total # of Hours Reported

81,708.45

85,904.15

96,395.58

102,448.32

# of Attys Reporting 50 plus hrs

737

657

762

781 The number of pro bono hours reported by KBA members has increased from 2007 to 2010 by 20,739.87 hours or 25 percent.

2 This report does not distinguish in-state and out-of-state attorneys. It is for all attorneys licensed by the KBA.

17

VALUE OF DONATED LEGAL SERVICES At the lowest estimated billable rate of $125/hr, estimated value of donated legal services (102,448.32 reported) for June 30, 2009-June 30, 2010, is $12,806,040 (hourly rate times number of hours reported). Since 2007, this is an increase of $2,592,483.75.

New Volunteers (Reported by Programs as of June 30, 2010)

Name of Program

KLA Lawyers’ Care VAP Program3

LAS VLP4& LBA Pro Bono Program5

VLAK6 LABG Pro Bono Programs7 Statewide Volunteers8 Total New Volunteers with civil legal aid affiliated pro bono programs Volunteers for various, specific volunteer programs9

2007-08 New Volunteers

34

16

15

60

125

2008-09 New Volunteers

8

47

7

26

88

2009-10 New Volunteers

10

58

10

22

28

128

TOTAL

52

121

32

108

28

341

357

3Kentucky Legal Aid (KLA) Lawyers’ Care Volunteer Attorney Program serves Western Kentucky counties. 4 Legal Aid Society (LAS) Volunteer Lawyer Program (VLP) serves Jefferson and surrounding counties. 5 Louisville Bar Association (LBA) Pro Bono Program operates independently of the LAS VLP, but the two programs partner together for the Louisville Pro Bono Consortium. 6AppalReD, Volunteer Lawyers of Appalachian Kentucky (VLAK) serves Eastern Kentucky. 7 LABG Pro Bono Programs include Legal Aid of the Blue Grass (LABG) Northern Kentucky Volunteer Lawyers Program (NKVLP) serving Northern Kentucky counties; LABG Pro Bono Projects (Ashland / Morehead) serving Northeastern counties; and the LABG partnership with the Fayette County Bar Association for the Fayette County Bar Pro Bono Program (LawCare) serving only Fayette County. 8This will include volunteers who sign up to do pro bono through Access to Justice Foundation. Volunteers agree to donate general legal services directly through Child Advocacy Today, Legal HelpLine for Older Kentuckians, or the KyVLP for a county that does not have a local pro bono program. We only began tracking these volunteers this past year.

18

Total new volunteers10 Total

698

9 From 2007 through 2010, the number of volunteers for specific programs increased by 56 percent. These lawyers volunteer for various specific projects such as FEMA Disaster Relief, DVAP, LAS Foreclosure Conciliation Program, etc. 10 New volunteers for local programs and for specific programs have some overlap with regular volunteers but pro bono coordinators report that specific programs often draw a different pool of volunteers

19

Activities of the KyVLP 2007-2011

• Offered approximately forty CLE programs for free or reduced costs • Participated in over twenty-seven Kentucky Law Updates over the past three

years and the past three Kentucky Bar Annual Conventions as exhibitor or sponsor to promote pro bono

• Promoted need for donated legal services and civil legal aid issues attorneys in

television, radio and print media Statewide televised interview on KET, Justice Bill Cunningham (aired

over five times (October 2009)) Over twenty articles for publication on donated legal services and civil

legal aid issues (pro bono, access to justice, domestic violence, foreclosure, medical-legal partnerships, etc.)

Local radio shows with judges and civil legal aid directors

• Started Kentucky’s first online registration and webpage for pro bono programs • Proposed, organized and coordinated Kentucky participation in the ABA’s First

and Second Annual National Pro Bono Celebration Week involving nearly thirty events

• Secured funds to create Kentucky’s first medical-legal partnership, Child

Advocacy Today (CAT), a partnership between the University of Kentucky Department of Pediatrics and the Access to Justice Foundation to provide legal service to children whose health is impaired due to legal problems

• Participated in development of time-limited, task specific pro bono programs such

as Child Advocacy Today (CAT) (a medical-legal partnership); domestic violence advocacy programs, pro se divorce clinics, and foreclosure projects.

• Proposed creation and engaged in development of Kentucky Access to Justice

Commission

Kentucky’s Civil Legal Aid Programs and Affiliated Pro Bono Programs

1. Kentucky Legal Aid (KLA) serves Western Kentucky counties through its Lawyers Care Volunteer Attorney Program. The central office is located in Bowling Green with smaller offices in Paducah and Owensboro. (Allen, Ballard, Barren, Butler, Caldwell, Calloway, Carlisle, Christian, Crittenden, Daviess, Edmonson, Fulton, Graves, Green, Hancock, Hart, Henderson, Hickman, Hopkins, Livingston, Logan, Lyon, McCracken, McLean, Marshall, Metcalfe, Muhlenberg, Ohio, Simpson, Taylor, Todd, Trigg, Union, Warren and Webster).

20

2. Legal Aid Society (LAS) partners with the Louisville Bar Association and through LAS Volunteer Lawyer Program serves Jefferson and surrounding counties. (Breckinridge, Bullitt, Grayson, Hardin, Henry, Jefferson, Larue, Marion, Meade, Nelson, Oldham, Shelby, Spencer, Trimble and Washington).

3. Legal Aid of the Bluegrass (LAB) has four pro bono programs throughout

northern, eastern and central Kentucky: (i) Northern Kentucky Volunteer Lawyers, Inc. (Boone, Campbell, Carroll,

Gallatin, Grant, Kenton, Owen, and Pendleton); (ii) Legal Aid of the Bluegrass Pro Bono Project-Morehead (Bath, Bracken,

Carter, Elliott, Fleming, Mason, Menifee, Montgomery, Morgan, Nicholas, Robertson, and Rowan);

(iii) Legal Aid of the Bluegrass Pro Bono Project-Ashland (Boyd, Greenup

and Lewis); and (iv) Fayette County Bar Association Pro Bono Program, Inc. (LAWCARE)

(Fayette only but will screen for income eligibility for Bourbon, Scott and Woodford).

4. Appalachian Research and Defense Fund (APPALRED) Legal Services, covers

southern and eastern Kentucky through the Volunteer Lawyers of Appalachian Kentucky (Adair, Bell, Breathitt, Casey, Clark, Clay, Clinton, Cumberland, Estill, Floyd, Garrard, Harlan, Jackson, Johnson, Knott, Knox, Laurel, Lawrence, Lee, Leslie, Letcher, Lincoln, McCreary, Madison, Magoffin, Martin, Monroe, Owsley, Perry, Pike, Powell, Pulaski, Rockcastle, Russell, Wayne, Whitley, and Wolfe).

21

22