Effectively Representing Military Personnel and the Recently Discharged in Civilian Litigation

Transcription

1 ABA Section of Litigation 2012 Section Annual Conference April 18-20, 2012: Effectively Representing Military Personnel and the Recently Discharged in Civilian Litigation Effectively Representing Military Personnel and the Recently Discharged in Civilian Litigation Speakers Brig Gen Flora Darpino US Army Legal Services Agency Arlington, VA Vice Admiral James Houck United States Navy JAG Washington, DC John Mathias Jenner & Block LLP Chicago, IL Note:Provided materials have been reprinted with the permission of the publisher.

2 An Opportunity to Serve Those Who Serve Us Army Private Sam Griffith received the type of phone call that no parent ever wants to receive: A child welfare caseworker in Alaska had just removed Griffith s young daughter from the home of the child s mother Griffith s ex-wife based on suspicion of abuse and neglect. Griffith dropped everything to travel from Fort Hood, Texas, to recover his daughter in Alaska. But upon his return to Texas, he was faced with a very difficult legal situation. The child s mother still retained legal custody of the child under an Alaska court order and there was an open child welfare case in the Alaska juvenile court. On top of all that, Griffith was soon scheduled to deploy overseas to Iraq. Though he had met with a legal assistance attorney at his Fort Hood JAG office, there was little the Texas-licensed attorney could do to help him with what was entirely an Alaska legal matter, and with a very limited income, Griffith could not even begin to imagine how he would be able to get a civilian attorney to help him untangle these legal problems. What the military attorney was able to do, however, was refer Griffith to the American Bar Association s Military Pro Bono Project. Once referred, the case was matched up with an Alaskan attorney who volunteered with the Project to handle cases for servicemembers pro bono. The attorney quickly appeared in the case for Griffith and, after a series of hearings including those conducted with Griffith appearing by phone from Iraq the court granted him permanent custody of his daughter. As a result, he was able to focus on his mission in Iraq without concern for any unresolved legal problems or the welfare of his child. Although the names and locations in this story have been changed, it is based on a real case and it illustrates how the ABA Military Pro Bono Project helps our servicemembers receive the legal help that they need. ABA Military Pro Bono Project Connects Servicemembers Facing Civil Legal Matters with Volunteer Attorneys Servicemembers often have legal problems that fall outside the scope of the assistance provided by military legal assistance attorneys (JAGs). Junior-enlisted servicemembers often have difficulty affording legal representation. And, like in the example above, they frequently encounter legal problems that arise in locations far from where they are stationed. Recognizing these issues, the ABA Standing Committee on Legal Assistance for Military Personnel (LAMP) and, as a co-founding partner, the ABA Section of Litigation, launched the ABA Military Pro Bono Project in late 2008 with the mission of connecting

3 junior-enlisted, active-duty servicemembers who have civil legal matters with civilian attorneys who will provide pro bono assistance. The Project, a web-based program on accepts case referrals from military attorneys across the country and around the world, and connects the referred servicemembers with pro bono attorneys throughout the United States. The Project also includes Operation Stand-By, through which attorneys may volunteer to provide lawyer-to-lawyer consultations to military attorneys, so the military attorneys can further assist their servicemember clients. In just over three years of operation, the Project has become widely recognized as a very effective means to help meet the legal needs of servicemembers, having secured pro bono assistance for hundreds of servicemembers. But that success has, understandably, resulted in ever-increasing demands for pro bono help for servicemembers in need. Register with the ABA Military Pro Bono Project to Help Our Servicemembers If you are an attorney interested in giving back to the men and women of the armed forces, please visit to further explore how you can help our servicemembers receive the legal representation that they need by joining the Project roster or making a tax-deductible financial contribution. Although signing up with the Project does not obligate you to take any particular case, it is hoped that you will give consideration to these volunteer opportunities that arise in your geographic area and substantive legal area of expertise. Lend a hand to our military personnel and their families, recognizing the sacrifices they make on behalf of us all. Please visit the ABA Military Pro Bono Project website, to further explore how you can help our servicemembers receive the legal representation that they need by joining the Project roster or making a tax-deductible financial contribution. Contact the ABA Military Pro Bono Project Director, Mary C. Meixner, at mary.meixner@americanbar.org or with any questions.

4 Many of our servicemembers, who have left their families, homes, and jobs for years at a time to serve their country in Iraq, Afghanistan, and other locations, are troubled with legal needs that distract them from their missions and can make their already difficult daily lives even more challenging. These legal needs are arising in the areas that may fall within the ABA Section of Litigation members areas of expertise, including consumer law, family law, landlord-tenant, employment law, and others. The ABA Military Pro Bono Project connects junior-enlisted, active-duty military personnel and their families to civilian attorneys who will provide free representation for civil legal issues beyond the scope of services provided by military legal assistance offices. The Project, founded and sustained with support from the Section of Litigation, accepts case referrals from military legal assistance attorneys (i.e., JAGs) across the country and around the world, and connects these servicemembers with pro bono attorneys in the United States. Register With the Military Pro Bono Project to Help our Servicemembers! Attorneys may register on the Project website, to potentially provide pro bono legal assistance to income-eligible servicemembers and/or volunteer time to provide general legal advice to military attorneys through Operation Stand-By. Pro Bono Legal Assistance An attorney who registers to potentially provide pro bono legal assistance to servicemembers becomes eligible to receive pro bono case opportunities via from the Project when a servicemember has a case in the attorney s geographic area and substantive legal area of expertise. Attorneys can also sign up to receive weekly notices to stay up-to-date on the latest case opportunities on behalf of our servicemembers. Operation Stand-By An attorney who registers to join Operation Stand-By agrees to be available to receive calls or s from military attorneys in need of consultation on state-specific legal information relating to the attorney s area of expertise, so the military attorneys can better assist their servicemember clients. Participation in Operation Stand-By itself does not entail the delivery of pro bono representation. Rather attorneys agree to potentially participate in short attorney-to-attorney phone conversations or s with military legal assistance attorneys, who will find the attorneys contact information and areas of expertise on a passwordsecured list on the Project s website. Please visit the ABA Military Pro Bono Project website, to further explore how you can help our servicemembers receive the legal representation that they need by joining the Project roster or making a tax-deductible financial contribution. Contact the ABA Military Pro Bono Project Director, Mary C. Meixner, at mary.meixner@americanbar.org or with any questions.

5 ABOUT THE MILITARY PRO BONO PROJECT Extended American military missions overseas have generated unprecedented civil-law challenges for servicemembers, many of whom have left families, homes, and jobs for years at a time to serve their country in Iraq, Afghanistan, and other locations. Many of our servicemembers are troubled with legal needs that can distract them from their missions and can make their already difficult daily lives even more challenging. The ABA Military Pro Bono Project helps servicemembers who are sacrificing greatly for their country by moving pro bono referrals from military legal assistance offices to willing-and-able private sector lawyer volunteers throughout the country. Military attorneys use the Project s web-based referral system to submit pro bono case placement requests for representation, and volunteer pro bono attorneys register with the website to offer their services in their geographic and substantive areas of their expertise. The Project is also the platform for Operation Stand-By, through which military attorneys may contact civilian attorneys who have volunteered to be available to receive calls or s to provide attorney-to-attorney advice to military attorneys on state-specific legal information relating to the volunteer attorneys areas of expertise, so the military attorneys can further assist their servicemember clients. Military and civilian attorneys can become involved with the ABA Military Pro Bono Project so that, working together, we can ensure access to justice for military personnel and their families who have sacrificed so much for all of us. The ABA Military Pro Bono Project is a program of: American Bar Association ABA Standing Committee on Legal Assistance for Military Personnel (LAMP) Join our ABA Military Pro Bono Project supporting partners at To join our effort to meet the pro bono legal needs of servicemembers, visit and GET INVOLVED by registering with the Project s volunteer list or becoming a Project partner by making a tax-deductible financial contribution. American Bar Association membership is FREE or available at a DISCOUNT for military attorneys. Visit ambar.org/freejags.

6 THE ABA MILITARY PRO BONO PROJECT IS A RESOURCE THAT MILITARY LEGAL ASSISTANCE ATTORNEYS MAY USE TO OBTAIN PRO BONO LEGAL REPRESENTATION FOR THEIR CLIENTS. THE PROJECT ALSO PROVIDES AN OPPORTUNITY FOR CIVILIAN ATTORNEYS TO VOLUNTEER THEIR TIME TO HANDLE CASES FOR ACTIVEDUTY SERVICEMEMBERS ON A PRO BONO BASIS. WHERE PROJECT CASES COME FROM: All cases originate with a referring attorney in a military legal assistance office. The military attorney interviews the client, collects substantive case information, and screens for income eligibility, as most referred clients will typically have a paygrade of E6 or lower. The attorney will also determine whether the case is legally meritorious and has adequate cause for referral based on an analysis of a number of qualitative factors. Once submitted through the Project s web-based referral form, the case will be reviewed by a designated military supervising attorney for merit and completeness. Thus, participating firms can be assured that only those cases that have been fully worked up and are factually and legally meritorious will be offered as pro bono opportunities. SUBSTANTIVE LEGAL CASE TYPES: Specific case-type guidelines are found on the Project s website, Cases that will typically be accepted for pro bono placement through the Project are: CONSUMER LAW Representation for a wide variety of consumer law issues, with particular focus on lending issues: predatory lending (including payday lending), TILA, FDPCA, lemon law and lender violations of the SCRA. Also includes sympathetic Chapter 7 bankruptcy cases. LANDLORD/TENANT Representation for tenants only, in all manners of landlord/tenant disputes, including wrongful termination of tenancy. FAMILY LAW Representation for servicemembers in limited types of disputed family law proceedings where important interests of the servicemember, such as custody, are affected. HOW TO GET INVOLVED: GUARDIANSHIP Generally providing representation to a current spouse or parent to secure guardianship of a disabled servicemember. PROBATE Representation for servicemembers next-of-kin experiencing difficulty securing military benefits or significant probate issues. TRUST AND ESTATES Referrals generally for: (i) creation of special needs trusts, or (ii) estate planning assistance otherwise beyond normal scope of work of the military legal services office. EMPLOYMENT Including cases under USERRA or EEOC complaints. Military and pro bono attorneys may register with the Project on by clicking the Join this Area link. Once registration is approved, military attorneys may submit case referrals on behalf of their servicemember clients by using the Project s online form, and they will also have access to the Operation Stand-By list of attorneys who are willing to provide attorney-to-attorney consultations. Civilian attorneys may register to be contacted by the Project when pro bono case opportunities arise in their geographic and substantive legal areas of expertise, or may register to join Operation Stand-By to volunteer time to receive calls or s from military attorneys in need of attorney-to-attorney advice on statespecific legal information. For further information, please visit or contact the ABA Military Pro Bono Project at militaryprobono@americanbar.org.

7 Eligibility for Free Legal Assistance with Military Attorneys (JAGs) Military families may qualify for free legal services through military legal assistance offices, which provide legal advice and assistance in a wide variety of civil legal issues. The following individuals may be eligible for free legal services through military legal assistance offices: Active-duty servicemembers with the U.S. Armed Forces (Army, Air Force, Marine Corps, Navy, or Coast Guard) and their dependents National Guard and Reserve personnel, and their dependents, with DoD ID cards who have been activated, are preparing to deploy, or have recently returned from deployment Retired military personnel with DoD ID cards and their dependents (other veterans typically are not eligible) Survivors who were dependents of eligible deceased servicemembers and retirees Certain overseas civilian employees and allied forces servicemembers and their dependants If eligible: Individuals with civil legal issues who may be eligible for free services through military legal assistance offices should contact the nearest legal office to schedule an appointment. Eligible individuals may contact a military legal assistance office even if it is a different service branch (e.g., a Marine may visit a Navy legal assistance office). The nearest military legal assistance offices can be found with the Military Legal Assistance Locator, If not eligible: Individuals who are not eligible for services through military legal assistance offices should visit the Directory of Programs on to locate local legal aid and pro bono programs, lawyer referral programs, and other military-specific programs. If an individual is eligible for legal services through military legal assistance offices, but a military attorney determines that the office is unable to fully assist with the individual s legal issue, the military attorney may refer the individual s case to the ABA Military Pro Bono Project, which will search for a civilian attorney who will handle the case pro bono. Military attorneys may refer cases to the Project through its website, on behalf of clients who meet the Project requirements, including the following: The servicemember client is at a paygrade of E-6 or below, and The servicemember has a civil matter that meets Project guidelines and fits within a qualified case type: landlord/tenant, consumer law (including bankruptcy), family law, trusts and estates (including probate), guardianship, employment, or Servicemembers Civil Relief Act (SCRA) matters. See checklist on the reverse to identify SCRA matters. 1

8 Servicemembers Civil Relief Act (SCRA) Checklist The Servicemembers Civil Relief Act (SCRA) protects persons serving on active duty from adverse consequences to their legal rights that may result from such service. Some SCRA protections apply to reservists and guardsmen called to serve on active duty. Other protections apply to members who have always been on active duty, while some protections apply to military dependents. This checklist will assist in determining if specific protections apply to your client checking any item indicates that the SCRA may apply. If so, your client must take action either before or during activation to be afforded some protections, while other protections allow action within 30 to 180 days after completing an active duty assignment. You and/or your client should visit the Information Center at for more information on the SCRA. Check all items below pertaining to your client s situation. Encourage your client to contact a military legal assistance office to discuss any applicable matters. Administrative or Court Proceeding: Is your client involved in an administrative proceeding of any kind or a civil court case that your client wishes to postpone while serving on active duty or within 90 days after completing an active duty assignment? Automobile Lease: Does your client wish to terminate an automobile lease that was entered into before: (1) being called to active duty for a period of 180 or more days; or (2) receiving orders for a permanent change of duty station outside the U.S.; or (3) receiving orders for a permanent change of duty from a state outside the continental U.S. (CONUS) to a state outside that state or (4) deploying with a military unit for 180 days or more? Rental Lease: Does your client wish to terminate a rental lease that was entered into before: (1) being called to active duty; (2) receiving orders for a permanent change of duty station; (3) deploying with a military unit for 90 day or more; or (4) separating or retiring from the military? Contracts: Is a creditor threatening to terminate an installment contract for the purchase, lease or bailment of real or personal property, such as an automobile, that your client entered into before serving on active duty? Eviction: Is your client or his/her dependents being threatened with eviction from the primary residence while serving on active duty? Foreclosures and Forced Sales: Is a mortgagor or lien holder attempting to foreclose a mortgage or enforce a lien on property your client acquired before serving on active duty? Cell Phone Contracts: Does the member have orders to deploy outside the U.S. for at least 90 days or a permanent change of custody (PCS)? Was the contract entered into before the orders? Does the new location materially impact the servicemember s ability to pay or utilize the service? Interest Rates: On purchases your client made before serving on active duty, is he/she paying an interest rate of over 6% including credit cards, mortgages and most student loans? Insurance: Is your client having difficulty paying private professional, health or life insurance premiums, or has insurance been terminated, while on active duty? Judgments: Has a court judgment been entered against your client while on active duty, or does your client anticipate that a judgment might be entered against him/her while on active duty? State Taxes: Is your client having difficulty paying income taxes while on active duty? Is your client paying state taxes based on military income or other property, such as a car, to a state other than your client s home state of legal residency? Is your client a military spouse whose income is exempt from state and local income tax based on the Military Spouses Residency Relief Act? Voting: Where is your client registered to vote? Military personnel and their spouses can register to vote and vote by absentee ballot in their domicile, rather than the locale where they temporarily reside due to military orders. Voter registration is a key indicator of domicile, and can have a bearing on jurisdictional issues. 2

9 ABA Standing Committee on Legal Assistance for Military Personnel (LAMP) The LAMP Committee supports the delivery of high-quality, free legal assistance services to active-duty military personnel and their families. This is achieved through: Education for Military Attorneys: The LAMP Committee holds two free CLE programs at military installations around the country every year in conjunction with its business meetings. Education for Military Families: LAMP is the lead entity developing and managing ABA Home Front, a legal education and referral resource for military families. Publications: LAMP works with ABA Publishing to produce books on civil law matters affecting servicemembers. Policy Advocacy: LAMP actively works to advance federal legislation to protect legal rights and expand access to free legal services for servicemembers and their families. Collaboration with the Services and Affiliated Entities: LAMP maintains close liaison relationships with the legal assistance leadership and Judge Advocates General of the five military service branches, as well as other governmental and private organizations with military connections. Civilian Bar Engagement: LAMP works to build relationships with its counterpart state and local bar military committees and holds annual community roundtable events around the country. It also operates the ABA Military Pro Bono Project to actively engage civilian attorneys in pro bono service for military members. All of LAMP s work and initiatives support the legal needs of military personnel while on active duty, as well as through the transition from active duty to veteran status. Information about the committee may be found at ABA Military Pro Bono Project Project Background LAMP created the Project in partnership with the ABA Section of Litigation in late 2008 to meet the pro bono representation needs of active-duty servicemembers and their families. The Project accepts case referrals from military legal assistance attorneys (JAGs) on behalf of junior-enlisted, active-duty servicemembers and their families anywhere in the world. It then places these cases with pro bono attorneys anywhere in the U.S. where the legal assistance is needed. Since the Project began, it has successfully secured pro bono assistance for hundreds of servicemembers and their families. Project Eligibility Referred cases are for active-duty servicemembers at an E6 or lower paygrade, including National Guard and Reserve members.

10 National Guard and Reserve members who are not currently on active duty may also be referred so long as the referral is for a legal matter related to or arising from mobilization, de-mobilization, or military status. The Project accepts civil cases in a variety of areas, such as consumer law, family law, landlord/tenant, employment issues for National Guard and Reserve members, and others. Volunteering with the Project Over 1,500 volunteer attorneys and pro bono coordinators throughout the U.S. have joined the Project s volunteer roster. Attorneys may register with the Project on its website, to potentially provide pro bono legal assistance to servicemembers. Attorneys who register with the Project will receive notifications of pro bono opportunities on behalf of servicemembers in the attorneys geographic and substantive legal areas of expertise. Attorneys may also volunteer to join the Project s Operation Stand-By list. Military attorneys use this list to locate civilian attorneys to provide attorney-to-attorney consultations and advice to the military attorneys to assist them with their legal assistance cases. ABA Home Front In early 2011, LAMP headed the development of ABA Home Front, an online resource designed to help military members, veterans, and their families find legal information, referrals and representation for civil matters. ABA Home Front features the following: Information Center: The Information Center currently provides legal information, written in a manner that is easily understood by non-attorneys, on a variety of topics affecting military families. Directory of Programs: The Directory of Programs is a national, state-by-state guide to all of the free and low-cost legal service programs available to assist veterans, servicemembers, and their families with all types of civil legal programs.