From Start to Finish: A Legal Assistance Attorney s Proposal

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1 From Start to Finish: A Legal Assistance Attorney s Proposal I. Introduction You go to your military dentist and describe your symptoms hoping she will remedy your toothache. After examining you and detecting symptoms, the dentist explains the condition, and schedules another appointment. After several appointments and eventually a minor operation, your toothache is cured and you go on about your life. Professionals such as dentists, doctors, and lawyers encounter similar situations every day. To a layperson, the distinguishing mark of a professional is knowledge that others do not havealmost like a sorcerer s secret book of magical formulas. Stefan H. Krieger et al., Essential Lawyering Skills 5 (Aspen Law & Business 1999). Military members, dependents, and retirees seek legal assistance attorneys to utilize the attorneys professional knowledge and to find the answers to the problems that trouble them. The standards of professionalism exhibited by military legal assistance attorneys throughout the country are of no lesser quality than that of military doctors, military dentists, and other military professionals--with one exception. Legal assistance attorneys can examine the client s problem, and make a diagnosis like a doctor or dentist, but instead of completing the task and sending the client to go on with his life, the legal assistance attorney must often send the client out to find a civilian attorney to resolve the case. II. The Challenge The greatest challenge legal assistance attorneys face is the inability to take a client s case and know, without a doubt, that the attorney can take the case from start to finish because legal assistance attorneys generally cannot go into civilian court. A. The Legal Assistance Dilemma My experience and my conversations with other legal assistance attorneys has led me to conclude that because of our general inability to represent a client in civilian court, there are two philosophies on how to handle a legal assistance case. 1. Approach #1: Attempt to resolve without litigation The attempt to resolve the issue without litigation is when the attorney attempts to resolve the issue by negotiating a settlement without litigation. Often the interested parties reach the point 1

2 where neither is willing to settle or to compromise its position on the issue. At this point, the Legal Assistance Attorney directs the client to find a civilian attorney. Because specific referrals are not allowed, the client is forced to start over or proceed pro se. 2. Approach #2: Speculate that a lawsuit may be necessary and close the file The speculation approach is the philosophy whereby the legal assistance attorney makes an initial determination based on experience or pure speculation that the client s case will never settle without judicial action. Once this determination is made, often at the end of the initial intake interview, the Legal Assistance Attorney ends the attorney-client relationship and sends the client to find a civilian attorney. This approach does not necessarily mean that the attorney is attempting to avoid responsibility, but it often is an effort by the attorney to avoid wasting time and resources. The same result occurs as with approach #1, the client is sent out to find a civilian attorney to represent the case or the client is encouraged to proceed pro se. 3. The problems with Approach #1 and #2 Obtaining civilian counsel, however, may not be an easy task for our legal assistance clients. Many civilian attorneys will not take a typical legal assistance case because the lawsuit is important to the litigant but is not in an amount that makes it economically feasible to secure legal representation. David R. Gienapp, Ethics and the Legal Profession Symposium: Introduction: Issues Facing the Legal Profession as the Profession Prepares to Enter the Twenty-First Century, 40 S.D. L. Rev. 207, 209 (1995). Also, military members are rarely willing, much less able, to spend $ per hour for a small claims case that only has $500 to $1000 at issue. Realistically, the client s only option is proceeding pro se. Legal assistance clients rarely have the confidence or the time to proceed pro se. The clients who do proceed pro se are often forced into a courtroom setting in which the judge does not take the client seriously or the client is outmatched by the landlord s or other small business s attorney. See, e.g. Steven Lubet, Professionalism Revisited, 42 Emory Law Journal 197 (Winter 1993) (explaining that judges in small claims court often rush through cases without allowing pro se defendants to talk, they ridicule defendants, and the only advice is sit down and wait until your case is called ). The client either loses the case while representing himself or the client drops his defense and pays the alleged amount due. 2

3 Often it takes the filing of a petition to negotiate a settlement. Mere letters and phone calls often do not provide the same level of persuasiveness as being served a copy of a formal complaint demanding an answer by a date certain. III. Proposed Solution: The Armed Forces should expand Legal Assistance to allow attorneys to represent clients at all levels of civilian courts, including small claims court, state district or circuit court, and federal courts based on their respective needs. This expansion should go further than the current Extended Legal Assistance Programs (ELAP) and should include all ranks of military members. All military members, dependents, and retirees should be eligible if the potential client can show undue hardship of hiring a civilian counsel as allowed under our enabling statute, 10 U.S.C. 1044(c) (2002). In addition, the express language in the Code of Federal Regulations currently allows incourt representation. 32 C.F.R (a)(2) (2001) ( [a legal assistance officer] shall... provide full legal representation including representation in court.... ); but see 32 C.F.R (c) (2001) (limiting judge advocates from appearing as counsel in civilian court except in limited circumstances). Domestic issues, specifically divorces, should be excluded from in-court representation because of the strong emotions involved in family law and because free legal services in obtaining a divorce would make divorce too easy of an option for members and dependents. However, additional estate planning, probate, adoption, grandparent custody rights and other similar actions all of which often fall under the heading Family Law should be included in the Expanded Legal Assistance Program because these are services in which the emotions generally do not run as strong and are services that legal assistance attorneys could easily provide. Nothing under this proposal would prevent a legal assistance attorney from refusing to take a clearly meritless case just because of the ability to go into court. All attorneys, both civilian and military, must make a decision with the client about which cases are worthy of the time and effort of litigation and which might be a waste of time. IV. Answers to Possible Objections to this Proposal A. What about the current Extended Legal Assistance Program (ELAP)? The Extended Legal Assistance Program (ELAP) is a step in the right direction, but it is too limited. The Navy JAG Corps website explains that under limited circumstances, the Expanded Legal Assistance Program (ELAP) allows attorneys from authorized legal assistance offices to 3

4 provide in-court representation in limited circumstances to eligible active duty military personnel and dependents that could not otherwise afford legal representation. (FAQs: Can a legal assistance attorney represent me in court?) To lower the expectations of the reader, the website explains that because of the time involved and the limited resources available, cases chosen for ELAP usually have a foreseeable impact beyond the individual Sailor or Marine being represented; e.g., systematic landlord abuse of service members and consumer scams that specifically target service members. Id. The overly restrictive nature is obvious. The Navy s ELAP program is limited to individuals who have a paygrade of E3 or below, or E4 if the sailor has dependents. JAGMAN, Chapter VII, 0711(b). Many E7s and E8s have cases that deserve in-court representation to the same extent as an E3. If Navy Senior Chief Schmuckatelli has two child support payments and a mortgage, Navy Senior Chief might have less disposable income to hire a civilian attorney than an E3. However, excepting the highly unlikely chance that the attorney would seek permission the Judge Advocate General or his designee, the current ELAP policy would exclude Senior Chief from ELAP unless his case is one that could help the Navy as a whole. JAGMAN, Chapter VII, 0711(b)(5). B. Why should the United States Government provide legal representation when the client would receive better representation from a civilian attorney? Any claim that a civilian attorney will provide better counsel than a legal assistance attorney is inaccurate. I submit that many legal assistance attorneys would provide better representation than the few civilian attorneys who take these consumer issues, because those accepted into the JAG program have proven track records for excellence. Also, as in all professions, the price of the attorney does not always guarantee the attorney will provide quality service for military members. C. What about the Preventative Law program, where the member is educated on legal topics, instead of using time and money on representing members in court? Human nature answers this objection. Human nature tells us that until a person has a specific interest in something because it has a direct impact upon him or her, there is a lack of interest in the area. In other words, unless a particular servicemember encounters a particular problem like a lease or contract issue, attempts at educating our soldiers and sailors often amount to merely unsolicited advice. Unsolicited legal advice is very much like other unsolicited advice that does not specifically apply to the individual s life, i.e., the individual does not value it. I support the continuance of the 4

5 preventative law program, but I do not believe that it has the potential to accomplish the same results as in-court representation. D. What about guidance for legal assistance attorneys who have little to no experience? For the large bases, a civilian attorney who is authorized to practice in the state should be hired for two purposes. The first purpose is for continuity within the system. This individual would be the resident expert on civilian legal matters. The second purpose is to provide guidance for first tour legal assistance attorneys. Although the civilian attorney could also help with the workload, cases involving in-court representation would be assigned to the military legal assistance attorneys, and the civilian attorney would supervise the case without being the attorney of record. An example of successful implementation of such a plan is the system established by Captain Kevin Flood (ret.) at Naval Station Mayport, Naval Legal Service Office Southeast. As a result of such a plan, many who were once first tour lieutenants could return to the Legal Assistance Offices as the Officer-in-Charge (OIC). As leaders of detachments, they would have the experience to carry out similar programs at smaller bases. V. Implementation: A. Qualifying members for the expanded services 10 U.S.C. 1044, and 32 C.F.R (3) (2002) allows the military to provide in-court representation to those eligible. 10 U.S.C. 1044(c) only prohibits in-court representation where the member, dependent, or retiree can afford legal fees for such representation without undue hardship. Legal assistance offices should use a uniform application for all military members to determine whether the hiring of civilian counsel would cause undue hardship. The application should take into account each individual person s assets and liabilities. The determination should be made as to whether the person can afford a civilian attorney, based not on the pay grade, but on whether enough assets exist above and beyond the costs of hiring an attorney. Assuming that most retainers for civilian counsel are approximately $2,000.00, all members who do not have liquid assets equal to or greater than $2,000.00, arguably could be unable to afford a civilian attorney without undue hardship. B. State bar association requirements Coordinating with the various state legislatures and state bar associations to allow the legal assistance attorneys from outside jurisdictions to appear in court could pose a problem. Because of 5

6 the potential for difficulties, I recommend that detailers attempt to assign attorneys who will fill legal assistance billets to the states in which that person is state bar certified. To the extent this may not be consistent with current Navy practice, I contend that extraordinary measures are needed because legal assistance attorneys serve a vital purpose for the military, i.e. resolving member s civilian legal issues. After a lawyer completes the Legal Assistance tour of one to two years, a detailer could transfer the attorney to another location if, for example, criminal defense or SJA billets are in need of more attorneys. This proposal would apply only to attorneys assigned to legal assistance billets. Staff Judge Advocates, Trial Counsel billets, and Criminal Defense billets would not be subject to this proposal. C. Aggressively establish ELAP in every state Assuming that detailers would be unable to fill every legal assistance billet with an attorney from that state, the JAG Corps should begin an aggressive effort to establish ELAP in every state. For states that already have ELAP legislation, the JAG Corps should push to change the language of the legislation to allow all members to qualify based on their assets and liabilities as described supra. Florida has good language for the ELAP program for other states to use as a guide. See Rules Regulating the Florida Bar, Chapter 18, available at I discourage the use of federal legislation to remedy the state law barrier because the potential exists for non-military attorneys to take advantage of such legislation as the precedent to broaden the scope of their own practices. The argument for allowing federal practitioners is not a novel argument and law journals are full of articles on the topic. See e.g., George Riemer, Limited Practices: Is there a federal law only exception to the Oregon bar examination? (June 1, 2002) VI. Potential Problems with the Proposal Implementation of this proposal would not come without sacrifice. Appearing in court on behalf of a client might prove to be too overwhelming a task for some legal assistance attorneys or some of the smaller military legal offices. In addition, the JAG Corps would subject itself to broad exposure in the civilian legal community because every legal assistance attorney who steps into civilian court would place the reputation of the entire JAG Corps on the line. The largest sacrifice for legal assistance would be time and resources. Some argue that the quality of life in the JAG Corps is directly related to one s amount of free time. I disagree to some extent. While I do not believe that any attorney wants to spend more time at work than necessary, attorneys have chosen a profession that requires the acceptance of responsibility and the efficient use 6

7 of time. This is especially true for legal assistance attorneys. Nothing would require every case to proceed to trial, and this proposal only advocates the ability to proceed to trial for all military members in appropriate cases. VII. Benefits of the Proposed Expansion of Legal Assistance The benefits of expanding the ability of legal assistance attorneys to appear in court are obvious. The attorneys would obtain the practical experience of taking a case from the beginning interview to the final exchange of money after the judicial decision. The JAG Corps could establish its reputation among judges and other attorneys in the community and have those judges and attorneys recognize the JAG Corps for outstanding work. Legal assistance attorneys would never again hear the statement I guess I need to go find a real attorney from clients. The JAG Corps would have an additional benefit to offer during recruitment, because many who apply to the JAG Corps are looking for any trial experience, not specifically criminal trial experience. In addition, providing complete legal assistance is one more service to offer to those who volunteer to serve their country and potentially put their lives at risk, or, in the case of many retirees, have already put their lives at risk. A man who is good enough to shed his blood for his country is good enough to be given a square deal afterward. Theodore Roosevelt, speech, July 4, Perhaps the greatest benefit, however, is that the legal assistance attorney would have the ability to take the member s problem and resolve it from start to finish. Just as members go to the dentist to remedy a toothache, members also schedule appointments at legal assistance offices to have an attorney tell them their legal rights if any, and if they do have legal rights, how to resolve the problem through litigation. VIII. Conclusion General Hague, the Chair of the ABA Standing Committee on Legal Assistance for Military Personnel set forth the challenge of broadening our legal assistance services in his Message from the Chair on the LAMP website. Brigadier General David C. Hague, Message from the Chair, (2002) The Legal Assistance program in all branches of the Armed Forces should rise to his challenge. Unlike criminal prosecution or criminal defense actions under the Uniform Code of Military Justice, Legal Assistance is the service that the JAG Corps can provide for our hard-charging, most dependable and reliable sailors and soldiers. In-court representation is what our soldiers and sailors deserve. As stated by General Hague, the need for such action has never been greater. Id. 7

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