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Sep 17

2012

Legal Aid in the Court of Appeals

Jack Keeney, Director of the Barbara McDowell Appellate Advocay Project

What to do? Your employer, effective immediately, has just cut your hours (and thus your pay) by 25% from full time to part time, while also raising your employee contribution for health benefits to an additional $346 per month. You believe that you can no longer make ends meet for yourself and your two children. Let’s say you resign to engage in a full-time search for a new job rather than continue part-time at reduced pay and higher out-of-pocket costs. Having resigned due to the substantial reduction in wages, will you get unemployment benefits? Not necessarily was last month’s answer from the Court of Appeals, in a case where Legal Aid represented the former employee.

In Consumer Action Network v. Frances Tielman, the Court of Appeals construed the District’s unemployment compensation statute and regulations to hold for the first time (and correctly so) that a 25% wage cut was a substantial reduction in wages. But it further held that such a substantial reduction only “may”, and does not by itself, constitute good cause to resign and thus be eligible for unemployment compensation. The Court emphasized that the only statutory or regulatory mention of reduced compensation and eligibility for unemployment compensation stated that a “minor reduction in wages” is not good cause. But the Court found no inference from this exclusion that a non-minor reduction was good cause. The Court concluded instead that without greater legislative or regulatory specificity, exclusion of minor reduction in wages did not establish or necessarily intend eligibility for all instances of substantial reduction in wages, including the 25% cutback by this employer. Rather, it was a case by case determination of whether the resignation was what a reasonable and prudent person would do under those financial circumstances. It remanded for further financial details from the claimant.

While the rules of statutory interpretation are what they are, neither those rules nor the omission of parallel language of automatic inclusion is any sure indication that the District of Columbia Council actually intended that a case-by-case determination be required in every non-minor wage-cut case. The explicit exclusion of only the “minor reduction in wages” from good cause obviously permits coverage in some circumstances as the Court found. But does it really intend to exclude coverage in other circumstances of non-minor wage cuts?

Context sheds some light. In the unemployment benefits context, the District has enacted seven mandatory exclusions from good cause for eligibility and six automatic inclusions that satisfy good cause. The current six mandatory definitions of “reasons considered good cause” include racial and sexual discrimination and harassment and other workplace conditions. For none of the seven mandatory exclusions is there a parallel automatic inclusion relating to what is not covered by the topical exclusion. So, it is neither surprising nor inconsistent with the statutory structure chosen by the District of Columbia Council that there is no mandatory inclusion for the parallel situation of “substantial” reduction of wages   It would be unusual having excluded only “minor” reductions if the Council did not intend to include as good cause all instances of substantial reduction in wages because the purpose of the unemployment statute is to be a lifeline to those whose work conditions have changed through no fault of their own.

The District of Columbia Council could easily and definitively resolve this concern through an amendment that adds a new seventh automatic inclusion for “substantial reduction in wages”. The alternative, now required by the Court of Appeals, is a case-by-case inquiry into financial details of the impact on claimants, mostly pro se, who may or may not have financial records of household expenses to document how the 25% wage reduction and increased costs of benefits has impacted them so severely that they resigned to do a full-time search for a new job. While Court’s the opinion disclaims any judicial requirement of “detailed expenses”, it nevertheless lists particular expenses such as “student loans, rent, utilities, food, health insurance and child care.” Such searching inquiries raise barriers that are inconsistent with the broad humanitarian purposes of unemployment compensation.

Further legislative and regulatory attention to the broader problem of substantial wage cutbacks triggering resignations may also be justified to answer the Court of Appeals’ request in its decision for further information not only from claimants but from the District’s Department of Employment Services “to furnish information about the availability of partial unemployment compensation and share work programs in the District of Columbia. . . .” That the Court does not know this information makes it unlikely that an individual claimant, pro se or otherwise, would know this information before deciding whether or not to resign after a substantial wage cutback to pursue a full-time job search. Whether DOES can and should do more to implement Council intent is an appropriate inquiry.

Sep 13

2012

Census Data Show Increasing Income Disparities

Elisa Jillson, Loaned Associate from Sidley & Austin LLP

Newly released official data confirm that Legal Aid’s client community continues to struggle through this economic downturn. Yesterday, the U.S. Census Bureau reported that the income gap between the wealthiest and poorest Americans grew dramatically in 2011. As the Washington Post (and other media outlets) noted, income inequality spiked—the largest one-year increase in almost two decades. The top 20% of American households did well, earning 1.6% more last year than the previous year—and the top 5% did even better, earning 4.9% more.  At the same time that the wealthiest Americans experienced substantial income growth, the remaining 80% of American households saw no improvement—or even experienced declining income.  With a 2011 poverty rate of 15%, a staggering 46.2 million people live in poverty.

Washington, D.C. is no exception.  In fact, according to a report issued by the Census Bureau last year, income inequality is greater in the District than in any other state.

Sep 10

2012

Legal Aid Helps Sex Trafficking Victim Obtain Protection Order Against Her Abuser

Wemi Peters, Staff Attorney

Ms. Smith came to Legal Aid for legal assistance in obtaining a Civil Protection Order (CPO) against her abuser, a child sex trafficker who had trafficked her across state lines as a teenager and forced her to sell her body for his financial profit. (We have changed her name to protect her identity.) Although the intersection between violence and sex trafficking may not be that surprising, cases like these are particularly disturbing. It is rare that a young survivor of sexual and physical violence finds the strength to fight back.  

Ms. Smith met the abuser in her mid teens. By then, he was already in his late twenties. He convinced her to run away from home with him so they could pursue Ms. Smith’s artistic dreams together. Young and in love, Ms. Smith agreed. That was the beginning of the abuser’s reign of terror over Ms. Smith’s life. The abuser forced Ms. Smith to work as a prostitute, beat her when she refused or failed bring home enough money, and convinced Ms. Smith that she was worthless and no one would love her. Ms. Smith told me that she found it difficult to love herself. The physical and sexual abuse continued for two years until the abuser was arrested for exploiting another young teenage girl.

Even in prison, the abuser’s power over Ms. Smith was apparent, and out of fear, she fled the city. When she finally returned to rebuild her life, the abuser was out of jail. He found Ms. Smith and soon returned to his abusive ways. But Ms. Smith was not the same naïve teenager as when they first met. This time, she was determined to stand up for herself.  Unfortunately, Ms. Smith’s resolve further angered the abuser and resulted in more severe physical abuse.

One hot summer night this year, after a particularly brutal beating in an alleyway, Ms. Smith had had enough.  She ran away from her abuser, and she never looked back. She filed for a Temporary Protective Order and a year-long Civil Protection Order at the South East Domestic Violence Center (DVIC), where we met. Ms. Smith was homeless and looking for shelter housing; she had no phone because the abuser had taken it from her. But she came to the Legal Aid looking for legal assistance. The emotional and physical drain that the abuse had taken on Ms. Smith was apparent on her face as well as her body. It was clear that Ms. Smith would struggle if she had to confront her abuser on her own.  She needed an attorney willing to advocate on her behalf and help her tell her story to the Judge.    

The court process was difficult. At the first hearing, Ms. Smith came to court very nervous. We were informed that the abuser had not been served with the necessary paperwork for her request for a CPO. Ms. Smith and I found out where the abuser lived and requested that the Court order the police to serve him. The next time Ms. Smith came to court, the abuser was present. Ms. Smith did not flinch when she saw the abuser. By then she had told me her story more than once, and I had gone over the CPO process with her a few times. Now that she had an understanding about what could occur, she was much more confident. With a lawyer by her side, Ms. Smith was prepared to confront the abuser in open court if necessary.  Her determination and poise were a shock to the abuser, who had been used to controlling her. He paced back and forth when he was not seated and looked restless in the courtroom. After negotiations, the abuser eventually agreed to consent to Ms. Smith’s petition for a Civil Protection Order.  After the Judge entered the order, Ms. Smith left the court brimming with pride.

Legal Aid’s domestic violence practice has grown in recent months. The growth has been Legal Aid’s response to a visible need in the community for legal services and advocacy to help domestic violence survivors. And in our view, it couldn’t have come soon enough.

Aug 22

2012

Latham & Watkins Associate Puts His Trial Skills to Work

Jodi Feldman, Director of Pro Bono and Intake

As the Director of Pro Bono and Intake Programs at Legal Aid, I spend a lot of time speaking with lawyers in private practice about the professional and personal rewards that pro bono work offers.  Of course, it always feels great to tell your client “we won,” especially when “winning” means being able to stay in your home, retaining custody of your children, or securing much needed benefits.  I also spend a good deal of time, however, focusing on the opportunity to build one’s professional skills and confidence in ways that often complement a lawyer’s regular practice.

Latham & Watkins associate Matt Cronin recently had the opportunity to put his skills to work (and maybe pick up a few new ones) representing his client at trial in Landlord and Tenant Court …

Matt Cronin, Latham & Watkins LLP Associate

I first learned about Ms. W’s case on a chilly January afternoon, when one of my colleagues circulated an email describing potential pro bono opportunities.  I had been looking for a chance to get involved with the Legal Aid Society of the District of Columbia’s Pro Bono Program and thought this might be a good opportunity.

After being retained as counsel, I spoke with Ms. W about her legal problems.  Ms. W’s troubles began several months prior when Hurricane Irene swept across the D.C. metro region.  During the hurricane, Ms. W heard strange sounds coming out of her bathroom and saw what at first appeared to be a leak.  Within a few hours, the leak became a small deluge, which quickly tore open a large hole running almost the entire length of the room.  Despite repeated phone calls and in-person visits, the landlord failed to repair the hole, which leaked both dirty water and debris, for nearly half a year. Ms. W ultimately withheld her rent in protest, leading to eviction proceedings. 

A wise lawyer once told me that, if you want to be successful in negotiations or in court, you never prepare a case with the aim to settle.  You prepare for trial.  And that is what we did.  Over the next six weeks, I interviewed my client and her neighbors, inspected the premises, took photographs, collected evidence, tried and rejected theories, filed briefs, won and lost discovery motions in court, subpoenaed witnesses, requested phone records, and became intimately familiar with D.C.’s sometimes unusual landlord-tenant and evidentiary law.  While I wanted to make sure we were as prepared as possible, I also understood that a settlement might prove to be in my client’s best interest.  With that in mind, I kept in contact with opposing counsel to see if she would agree to settle the case on terms acceptable to my client. 

Although we were still discussing settlement only minutes before the trial began, we ultimately were not able to come to an agreement, and the trial proceeded.  Ms. W was our first witness and she was poised and credible on the stand, as she had been throughout our representation.  She also was the main witness we used to enter most of our documentary evidence into the case.  A central dispute in the trial was exactly when Ms. W first provided notice of the problem to the landlord.  Instead of relying on a “he said, she said” argument, we requested Ms. W’s phone records from her phone company for the relevant months.  These records indisputably showed multiple calls placed to the landlord on the dates in question. 

Ms. W’s testimony was bolstered during cross examination of the landlord’s witnesses.  On direct examination, several of the landlord’s employees disputed Ms. W’s account.  However, when confronted on cross, they were unable to explain contradictions in their own testimony.  One of the highlights of the trial was asking one of the landlord’s witnesses a question and, after noticing he was looking behind me, turning around to see the other landlord’s witnesses mouthing “no” and nodding their heads back and forth.  Dealing with this type of contradictory testimony required some improvisation and a willingness to approach a witness or closing argument differently than anticipated based on how the trial unfolded. 

The trial ultimately resulted in a victory for Ms. W, allowing her to maintain her tenancy and providing a significant reduction in the amount of rent she owed.  While I was the lead counsel on this case, it certainly was a team effort.  Throughout the litigation, I was advised by Peter Winik, a senior partner at Latham, whose experience and guidance were essential to our victory.  I also need to give special recognition to Uche Anikwe, a talented Latham paralegal who helped prepare the exhibits and kept track of the key points during trial.  The trial team also relied upon the expertise of Legal Aid Housing Attorney Shirley Horng, who advised us on Landlord and Tenant Court procedures on numerous occasions.

-Matt Cronin, Associate, Latham & Watkins LLP

Aug 16

2012

Opportunity Available to Provide Feedback to the District

The District is currently seeking input on certain government programs and practices. It has established two surveys, both of which are accessible on the internet. The first asks DC  residents to share their thoughts and ideas on how to improve the utility of the annual Children’s Budget report. This survey is open through Friday, September 7. The second — available in English, Spanish, French, Chinese, Amharic, and Vietnamese — asks DC residents to share their experiences calling the District’s “Answers, please!” 211 line from a cell phone. This survey is open through Friday, September 14.

Hat tip to Susie Cambria, who alerted us to the availability of these surveys.

Apr 23

2012

Legal Aid Testifies at Hearing on Proposed FY 2013 DHS Budget

Westra Miller, Staff Attorney

Last Thursday, I was among the many advocates, citizens, and government officials testifying at a D.C. Council Committee Hearing regarding the Mayor’s proposed budget for Fiscal Year 2013.  Although the Mayor has promised to “protect our most vulnerable residents” in his budget, his proposal relies heavily on cuts to programs in housing and human services.  My testimony focused on restoring $5.65 million to the Department of Human Services (DHS) budget for the Temporary Assistance for Needy Families (TANF) program.  This restoration would delay an impending benefit reduction for families who have received cash assistance for more than 60 months.  Currently, longtime TANF families will face a benefit reduction of up to 40% in October 2012—despite the fact that many have not yet been offered appropriate job training and other services through DHS.  My testimony also discussed the Interim Disability Assistance (IDA) program, an important financial bridge for District residents waiting for approval of their applications for federal disability benefits.  IDA provides $290 per month cash assistance to residents with disabilities.  In recent years, the program’s budget has been reduced.  We asked that the Council restore $2.42 million to IDA to replace the federal recovery funds that were taken from the program in a previous year’s budget.

 Written testimony on these issues can be accessed here.

Apr 09

2012

Jack Keeney, Jr. Interview Featured on Council for Court Excellence Website

Jack Keeney, Director, Barbara McDowell Appellate Project

We have previously noted that Jack Keeney, Jr., Director of the Barbara McDowell Appellate Advocacy Program at Legal Aid, will be receiving the Justice Potter Steward Award from the Council for Court Excellence on May 10, 2012.  An interview with Jack is featured here.

Apr 09

2012

Crowell & Moring Partner Beth M. Kramer Shares Her Experience Helping Clients Secure Much Needed Social Security Disability Benefits

Jodi Feldman, Director of Pro Bono and Intake

Beth M. Kramer is a partner in Crowell & Moring’s Torts Group.  She also devotes significant time to representing clients pro bono in Social Security disability cases referred from the Legal Aid Society.  Our Pro Bono Referral Program connects clients who need, but cannot afford, legal representation with attorneys working in private practice and government settings throughout the city.

In her own words, Beth highlights the professional and personal rewards of her pro bono practice experience …

Beth M. Kramer

Handling Social Security disability benefits cases for clients referred by Legal Aid has been rewarding to me on multiple levels.  First and foremost, the clients are truly in need.  They have little or no income, and they are unemployed and unable to work because of a multitude of mental health issues and other medical or physical health conditions.  Second, the clients are extremely grateful to have legal assistance.  They have not had success working within a system that can be very difficult to navigate even for an experienced advocate.  Even those who are lucky enough to have case workers at the non-profit organizations through which they obtain health care or other social services understand that having a lawyer on their side gives them a much greater chance of obtaining the benefits they need and to which they are entitled.  Third, such cases provide great litigation experience.  These cases often lead to a hearing before an Administrative Law Judge (ALJ), a real opportunity to prepare and argue a case albeit in a somewhat more informal environment than a court.

Three of the disability benefits cases that I have handled thus far have concluded favorably, and I am working on a fourth case.  In one case, I represented an HIV-positive transgender individual who suffers from depression and other mental health conditions.  This case did not even require a hearing — as soon as the Social Security Administration-appointed mental health professional examined my client, my client was awarded benefits.

In another case, my client, Ms. M., originally applied for disability benefits as the result of an injury which caused her chronic pain and prevented her from engaging in her previous work.   As I got to know Ms. M. better, however, I learned that her primary disability was heart failure.  Indeed, since the time of her original application for benefits her heart condition had severely deteriorated such that by the time we appeared before the Administrative Law Judge (ALJ) for a hearing, she could not walk a block without experiencing shortness of breath.  She also had been hospitalized multiple times while her appeal was pending. 

Only days before our scheduled hearing I received additional medical records that confirmed the severity of Ms. M.’s heart condition.  When I provided these records to the ALJ at the hearing, he seemed displeased that we had not provided these records earlier, but nevertheless adjourned the hearing to a later date so that he could have the opportunity to review the records.  When the hearing reconvened, we easily were able to show, with these additional medical records in evidence, that Ms. M’s heart condition was sufficiently severe to meet the applicable regulatory requirements for disability benefits.  Shortly after the hearing we received the ALJ’s written opinion awarding benefits to Ms. M. — and what a great relief that was.

I must add that these cases have been rewarding in another surprising way — the pleasant experiences I have had with the ALJs and other government employees.  The ALJ in Ms. M.’s case treated my client fairly and respectfully and took great care to explain the proceedings to her.  He was gracious and thanked me for representing Ms. M. pro bono and made suggestions as to how I might handle the logistics of future similar cases.  In my current case I went with my client to the Social Security Administration (SSA) office to rectify a potentially late-filed appeal request.  The staff person with whom we met patiently assisted my client in correcting her appeal papers.  Through both of these experiences as well as through telephone calls with other staff members at SSA I have been heartened to find that there are people at the Agency who really are well-meaning and want to do the right thing.

—Beth M. Kramer, Partner, Crowell & Moring LLP

 

Mar 27

2012

23rd Annual Servant of Justice Awards Dinner

Eric Angel, Executive Director

On April 26, 2012, Legal Aid will celebrate the 23rd Annual Servant of Justice Awards Dinner at the JW Marriott Hotel. This year’s keynote address will be given by The Honorable General Eric J. Holder, Jr., Attorney General of the United States and past recipient of the Servant of Justice Award.

Since 1990, Legal Aid has presented the Servant of Justice Award to individuals and organizations who have demonstrated faithful dedication and achievement in ensuring that all persons have equal and meaningful access to justice. This year, we have the distinct honor of presenting the Servant of Justice Awards to two remarkable individuals who have made the struggle for equal justice a core part of their personal and professional identities: Susan M. Hoffman, the Public Service Partner at Crowell & Moring LLP, and James vanR. Springer, a retired partner from Dickstein Shapiro LLP who is a long-time volunteer staff attorney at Legal Aid in the Public Benefits Unit. In addition, we will also be presenting the Klepper Prize for Volunteer Excellence to Jonathan G. Lin, an associate at  Simpson Thacher & Barlett LLP, for extraordinary pro bono work on behalf of Legal Aid’s client community. We look forward to recognizing these exceptional individuals at this year’s Dinner. Future blog posts will highlight our honorees’ accomplishments.

This year’s Servant of Justice Awards Dinner is also an opportunity to celebrate Legal Aid’s 80th Anniversary. We will focus on all that we have accomplished to make justice real for D.C.’s most vulnerable residents, as well as the many challenges that lie ahead. We hope that as many of you as possible will join us for the dinner.

Click here to purchase tickets to the 23rd Annual Servant of Justice Awards Dinner.

 

 

Mar 12

2012

Think Payday Loans Are a Thing Of The Past? Think Again.

Heather Latino, Consumer Unit Supervising Attorney

In her Washington Post column last Thursday, Petula Dvorak explored how payday lenders are evolving and persisting in their abuse of low-income working class people in new, innovative ways. Payday loans have long been criticized for luring borrowers into a never-ending cycle of debt under the auspices of offering short term financial relief.  Lenders offering payday loans target the most financially vulnerable and least sophisticated consumer—the very people who are least able to afford the high fees and interest rates that accompany these loans.  In 2007, the Washington Post reported that there were 48 payday lender storefronts in the District.  When the D.C. Council voted in favor of a bill capping interest rates on short term loans, the expectation was that the District’s payday lenders would be forced out of business thus protecting low-income borrowers.  Yet, as Ms. Dvorak explains, many in the payday loan industry have simply moved their operations to locations like Indian reservations and now reach out to borrowers through radio and internet advertising.