CLE For Good: Sixth Annual Full Ethics and Elimination of Bias Training Not Just for Public Interest Attorneys. Original Broadcast: 5/25/2016

Transcription

1 CLE for Good Webinar Series: Fifth Annual Full Ethics and Elimination of Bias Training - Not Just for Wednesday, May 25th, :00am 3:20pm 5-hour CLE webinar fulfills: 3 CLE credits of Ethics & 2 CLE credits of Elimination of Bias. 1 st Seminar, 10:00am-12:05pm (please join at 9:55 a.m.): Ethics: A Practioner s Guide to Avoiding Issues and Complaints: Plaintiff, Defense, and Insurance Counsel Views by Michael Fargione and Andrew Rorvig, of McEllistrem, Fargione, Landy, Rorvig & Eken, P.A., and Mark Hellie, staff attorney for American Family Insurance (2.0 hour CLE Ethics credits approved). We ll be starting shortly Tech troubles or other issues? Contact Or help@cleforgood.com Andrew J. Rorvig (for the plaintiff) Mark K. Hellie (for the defense) Ethics Attorneys; Disciplinary Lawyers; Malpractice Lawyers; or Ethics Experts 1

2 Litigators; Trial Attorneys; and Appellate Advocates Focus of our talk will be on the personal-injury litigation process from initial client consult to resolution (settlement, trial, appeal). I. General Observations II. Initial Work III. Litigation IV. Resolution A. Being Ethical and Being Good B. Help 2

3 Preamble: A Lawyer s Responsibilities Has a total of 13 paragraphs explaining a lawyer s responsibilities. The following are some excerpts. Preamble: A Lawyer s Responsibilities [1] A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice. Preamble: A Lawyer s Responsibilities [2] As advisor, a lawyer provides a client with an informed understanding of the client s legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client s position under the rules of the adversary system. 3

4 Preamble: A Lawyer s Responsibilities [4] In all professional functions a lawyer should be competent, prompt, and diligent. A lawyer should maintain communication with a client concerning the representation. A lawyer should keep in confidence the information relating to the representation of a client... Preamble: A Lawyer s Responsibilities [5] A lawyer s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer s business and personal affairs.... A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers, and public officials. Office of Lawyers Professional Responsibility Advisory Opinions (651) / Online Form 4

5 Minnesota Legal Ethics (Fifth Ed. 2015) William J. Wernz (former OLPR Director) Publications ebooks Minnesota Legal Ethics Download a free copy (submit address). A. Law Business 1. Business Structure 2. Competence B. Plaintiff s Issues 1. Fees (contingency) 2. Fees (sharing/referral) C. Defendant s Issues 1. Conflicts of Interest 2. Scope of Representation a. The Plaintiff s Firm i. Get Clients ii. Prosecute Claims iii. Settle/Jury Verdict/Fee b. The Defendant s Firm i. Get Insurers/Adjusters ii. Defend Claims iii. Settle/Jury Verdict/Bill 5

6 Getting Clients The Competitive Swap Rule 5.4: Professional Independence of a Lawyer (a) A lawyer or law firm shall not share legal fees with a nonlawyer. (b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law. (c) A lawyer shall not permit a person who recommends a lawyer to direct or regulate the lawyer s professional judgment in rendering such legal services. a. The Plaintiff s Firm i. Get Clients ii. Prosecute Claims iii. Settle/Jury Verdict/Fee b. The Defendant s Firm i. Get Insurers/Adjusters ii. Defend Claims iii. Settle/Jury Verdict/Bill Rule 1.1 states: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. 6

7 Categories of Competence for Injury Claims Liability and Defenses Assessing and Proving/Minimizing Damages Insurance Coverage Subrogation Settlement Agreements Litigation and Trial Skills Rule 1.5(c) states: A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination Unreasonable Contingency Fees? Rule 1.5(a) A lawyer shall not make an arrangement for, charge, or collect and unreasonable fee 7

8 Unreasonable Contingency Fees? The factors to be considered in determining the reasonableness of a fee include the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent. Rule 5.4(a) No Referral Fee for non-lawyer Rule 1.5(e): A division of a fee between lawyers who are not in the same firm may be made only if: (1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation; (2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and (3) the total fee is reasonable. Rule 1.7 Conflicts of Interest: Current Clients (a) a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer s responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer. 8

9 Rule 1.7 Conflicts of Interest: Current Clients (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing. Considerations Review Business Model Confidentiality (Rule 1.6) Pine Island Comparison to Juvenile Cases Excess Issues Rule 1.2(c) A lawyer may limit the scope of representation if the limitation is reasonable under the circumstances and the client gives informed consent. Counterclaims and other Claims Plaintiff s Conflicts 9

10 A. Discovery/Depositions B. Motion Practice/Appeal Rule 3.4 Fairness to opposing counsel Rule 3.3 Candor to the Tribunal 10

11 Rule 3.3 Candor to the Tribunal Gonzalez-Servin v. Ford Motor Co., 662 F.3d 931, 934 (7th Cir. 2011). A. Settlement Negotiations B. Trial Tactics Be Good Be Ethical 11

12 CLE for Good Webinar Series: Fifth Annual Full Ethics and Elimination of Bias Training - Not Just for Wednesday, May 25th, :00am 3:20pm 5-hour CLE webinar fulfills: 3 CLE credits of Ethics & 2 CLE credits of Elimination of Bias. 2nd Seminar, 12:05pm-1:05pm (please join at 12:00 p.m.): Ethical Considerations in Representing Domestic Violence Victims by Jessica Hafemeyer, owner of the Jessica A. Hafemeyer Law Office, P.A. (1.0 hour CLE Ethics credit approved). We ll be starting shortly Tech troubles or other issues? Contact Or help@cleforgood.com Ethical Considerations in Representing Domestic Violence Victims Jessica A. Hafemeyer Jessica A. Hafemeyer Law Office, P.A. jessica@hafemeyerlaw.com Rule 1.1 It is an attorney s responsibility to provide clients with competent, informed representation To effectively represent a victim of domestic violence, an attorney must have an understanding of domestic violence 12

13 What is Domestic Violence? When an intimate partner uses physical violence, threats, harassment, emotional manipulation, or financial abuse to control, coerce, or intimidate the other partner Physical Emotional Economic Sexual Cuts across race, gender, sexual orientation, religion, socio economic status, nationality, and culture Power and Control Wheel Physical and sexual assaults are usually the act that makes domestic violence apparent to others, but regular us of other abusive behaviors allow the batterer to exert power and control over the victim. Source: National Center on Domestic and Sexual Violence, Gender Generally and statistically speaking, the overwhelming majority of domestic and sexual assault victims are women and the perpetrators are male. BUT, think about how that stigma may play into representing a male victim. 13

14 Culture In some cultures, it is not considered acceptable to report domestic violence, which may mean that a victim is not as likely to tell you. Screen Violence at Initial Meetings Why? To effectively represent a client, you need to know all of the issues which impact the case. Negotiations Information available to the client. How Do I Screen? Ask questions which may prompt the client to share. Has your partner threatened you or your children? Are you afraid of your partner? Is your partner controlling? Do you have access to financial information, bank accounts, or money? Stress client confidentiality Rule 1.6: An attorney cannot knowingly reveal information about the representation without the client s informed consent 14

15 Lethality Factors A victim is more like to be killed by the perpetrator of domestic violence if: Perpetrator has access to firearms Drug/alcohol abuse History of stalking Suicide or homicide threats Victims has previously tried to leave 2015 Femicide Report Minnesota Coalition for Battered Women ( At least 22 women murdered At least 9 Family members or friends of the victim killed during an act of domestic violence At least 3 men were killed by the victim s current/former partner Lethality Factors Tracked by MCBW Of the 22 victims, 8 of the homicides occurred after she left, while she was attempting to leave, or where she had tried to leave within the year prior to the homicide. Of the 22 victims, 3 were known to have received threats of homicide prior to the occurrence of the homicide, but this is the most difficult to measure. 11 of the 22 homicides were committed using firearms. Of the 22 perpetrators, 13 had a history of violence related criminal charges for a total of 76 charges. Source: 2015 Femicide Report, 15

16 Make Appropriate Referrals Familiarize yourself with the domestic violence programs which serve your area. Familiarize yourself with the legal services program that serves your area. Keep a stack of cards or brochures in your office to provide. MCBW 24 hour Crisis Line: (866) National Domestic Violence Hotline: (800) 799 SAFE Domestic Violence Programs Support Groups Resource Lists Safe Housing Safety Planning Help with drafting Order for Protection Court appearances Advocacy in criminal cases Safety Planning In order to provide competent representation, you need to know how to contact your client without putting the client in danger. Discuss safety at home. Safety at the Courthouse throughout the case. Think about your own safety while the case is pending. 16

17 Order for Protection Minn. Stat. 518B Domestic abuse: 1) physical harm, bodily injury, or assault; 2) infliction of fear of imminent physical harm, bodily injury, or assault; or 3) terroristic threats Must be family or household members, have a child in common, have a significant romantic or sexual relationship Relief available: Restrain from victim s home or work Address custody, parenting time, child support Exclude from a common home Surrender of weapons under the Violence Against Women Act Full faith and credit between states Rules of Professional Conduct, Rule 3.1 An attorney has a duty to not bring or defend a proceeding or to assert a claim unless there is a basis in law that is not frivolous DO NOT file an OFP as a tactic in a custody case Look for mutual orders Family Law: Other Rule 1.1 considerations ADR: not required where domestic violence has occurred A mediator must screen for domestic violence Custody cases Domestic violence is part of the Court s determination of best interests Custody evaluations Divorce cases Look for financial issues 17

18 Rules Rule 1.7: Conflict of interest among current clients: Cannot represent one client if it will impact your ability to represent another client Rule 1.8(f): Fees cannot be paid by third party unless: 1) the client consents, 2) it would not interfere with the attorney client relationship; and 3) information related to the representation is protected under Rule 1.6 Rule 1.9: Duties to former clients: Cannot represent a current client in a case adverse to a former client s position without informed consent Rule 1.10: Imputation of conflicts of interest: Conflicts in 1.7 and 1.9 are imputed to other members of a firm Preamble to the Rules of Professional Conduct An attorney has the duty to zealously assert a client s position May need to be forceful in protecting your client s position In the statistically normal relationship involving domestic violence, the male is the batterer and the victim is a female. Think about how your gender as the attorney may impact interactions with the batterer. Q & A 18

19 CLE for Good Webinar Series: Fifth Annual Full Ethics and Elimination of Bias Training - Not Just for Wednesday, May 25th, :00am 3:20pm 5-hour CLE webinar fulfills: 3 CLE credits of Ethics & 2 CLE credits of Elimination of Bias. 3 rd Seminar: 1:10pm-2:10pm (please join at 1:05 p.m.): Representing Clients on the Autism Spectrum by Jason Schellack, Executive Director of the Autism Advocacy & Law Center (1.0 hour CLE Elimination of Bias credit approved). We ll be starting shortly Tech troubles or other issues? Contact Or help@cleforgood.com Representing Clients on the Autism Spectrum Presented by Jason Schellack, Esq. For HOME Line s Sixth Annual Full Ethics and Elimination of Bias Training 2015 Autism Advocacy & Law Center, LLC OVERVIEW What is Autism? Effective Communication with clients with ASD Rule 20 Examinations Case Law Review 19

20 WHAT IS AUTISM? The Diagnostic and Statistical Manual of Mental Disorders Fifth Edition (DSM-5) categorizes Autism as a Neurodevelopmental Disorder. Neurodevelopmental disorders are a group of conditions with onset in the developmental period. Neurodevelopmental disorders are characterized by developmental deficits that produce impairments of personal, social, academic, or occupational functioning. DIAGNOSTIC CRITERIA Three main areas: Persistent deficits in social communication. Poorly integrated verbal/nonverbal communication Abnormalities in eye contact/body language Persistent deficits in social interaction. Failure to initiate or respond to social interactions Difficulties in social-emotional reciprocity and understanding relationships. Restricted, repetitive patterns of behavior, interests, or activities. Insistence on sameness and adherence to routines Highly restricted, fixated interests Hyperactivity to sensory input EARLY SIGNS Parents/caregivers often report early signs of autism: Delays in language development Loss of language development Sleep problems Eye contact Repetitive behaviors/perseveration Early diagnosis is helpful! School can t diagnose! Medical professionals can diagnose 20

21 MYTHS ABOUT AUTISM Caused by a cold mother or poor parenting. Best evidence is that signs of autism are present even in the womb. People with autism don t have an interest in developing strong, interpersonal relationships. They do! People with autism have savant-like tendencies. There is only one Rain Man and one Temple Grandin! CHALLENGES FACING INDIVIDUALS WITH AUTISM Misdiagnosis/late diagnosis Social Isolation Socially vulnerable Bullied/Bully Conflict at home parents often disagree about diagnosis and treatment At risk for involvement with criminal justice system EFFECTIVE COMMUNICATION Slow down! Often people with ASD have processing speed difficulties, especially when under stress. There is often discrepancy between verbal comprehension and processing speed. Often, people with ASD have learned to mask well. I generally dedicate twice as much time for individuals with ASD. 21

22 EFFECTIVE COMMUNICATION, CONT. Ask client to repeat back information to monitor comprehension. Break complicated tasks/concepts into smaller parts. Provide visual outlines of information, i.e. statement of rights and plea petitions. Preview events with client so they know what to expect: initial hearing, omnibus hearing, trial. Provide script to client in advance. Practice court appearances with client, much like a moot court. OUTSIDE DOCUMENTATION REGARDING DISABILITY Individualized Education Program (IEP) Special Education Evaluation/Reevaluation Schools can t diagnose! They can only determine whether students qualify for special education services under certain categories, i.e. ASD, DD, SLD Neuropsychological Evaluation Performed by qualified psychologist. Only physicians and psychologists can diagnose ASD. Functional Behavior Assessment Typically done through school COLLATERAL CONTACTS Minnesota Rule of Professional Conduct Rule 114(b): When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial, or other harm unless action is taken and cannot adequately act in the client s own interest, the lawyer may take reasonable protective action, including consulting individuals or entities that have the ability to take action to protect the client. 22

23 COLLATERAL CONTACT, CONT. Minnesota Rule of Professional Conduct Rule 114, cmt 2: The client may wish to have family members or other persons participate in discussions with the lawyer. When necessary to assist in the representation, the presence of such persons generally does not affect the applicability of the attorney-client evidentiary privilege. Minnesota Rule of Professional Conduct Rule 114, cmt 4: If a legal representative has already been appointed for the client, the lawyer should ordinarily look to the representative for decisions on behalf of the client. Client may be under guardianship. MINNESOTA RULE OF CRIMINAL PROCEDURE A defendant is incompetent and must not plead, be tried, or be sentenced if the defendant lacks the ability to: (a) rationally consult with counsel; or (b) understand the proceedings or participate in the defense due to mental illness or deficiency. RULE 20.01, CONT. IQ and diagnoses alone are RARELY enough to perform a valid Rule 20 Examination. Individuals with ASD often have average to aboveaverage IQ. Scope of a Rule 20 Examination should go beyond IQ and diagnostic impression, and also include functional behavior testing. 23

24 RULE 20.01, CONT. Cautionary Statement for Forensic Use of DSM-5 DSM-5 When DSM-5 categories, criteria, and textual descriptions are are employed for forensic purposes, there is a risk that diagnostic information will be misused or misunderstood. These dangers arise because of the imperfect fit between the questions of ultimate concern to the law and the information contained in a clinical diagnosis... [A]dditional information is usually required beyond that contained in the DSM-5 diagnosis, which might include information about the individual s functional impairments and how these impairments affect the particular abilities in question. RULE 20.01, CONT. Additional testing metrics that will help Rule 20 examiners evaluate competence: Vineland Adaptive Behavior Scales Measures adaptive functioning, aka skills necessary for daily living Surveys provided to parents/care-givers to fill out Areas assessed: Communication, Daily Living, Skills, Communication Behavior Assessment System for Children (BASC) Parent/Caregiver completed inventory Identifies social, emotional, and behavioral strengths and limitations exhibited by individuals within the same age range Complex Trail Making Test (CTMT) Measures motor speed, planning, and ability to shift cognitive sets Uses written tasks involving words, numbers, dots VINELAND For a client with an average IQ!! 24

25 BASC CTMT RULE 20.01, CONT. Oftentimes, individuals with ASD are able to understand the legal proceedings. However, due to deficits or impairments in functional behaviors, individuals with ASD may not be able to: Rationally consult with counsel Participate in strategizing their defense Examples: Anxiety so high unable to enter the court room Unable to attend to longer tasks, like voir dire Unable to testify due to anxiety or language impairment 25

26 MINNESOTA RULE OF CRIMINAL PROCEDURE It is a defense to a crime if: [B]ecause of mental illness or deficiency, the defendant, at the time of committing the alleged criminal act, was laboring under such a defect of reason as not to know the nature of the act or that it was wrong. RULE 20.02, CONT. Individuals with ASD may experience severe episodes of dysregulation. These are often referred to by parents and teachers as meltdowns, tantrums, or outbursts. Dysregulation means that the individual is unable to regulate (control) their emotional response to a situation, oftentimes a trigger situation. Dysregulation can cause an individual with ASD not knowing the nature of a criminal act or that it was wrong. RULE 20.02, CONT. What?? Psychotic disorder is NOT a requirement under Mental illness OR mental deficiency. Rule does not limit the source of dysregulation!! 26

27 RULE 20.02, CONT RULE 20.02, CONT Blind rage and extreme emotional arousal = emotional dysregulation. For the purposes of Rule 20.02, ASD may be considered a mental deficiency. The defendant may have cognitive deficits (ability to regulate emotions and behaviors) that are not present in neurotypical peers. REQUESTING RULE 20 EXAMINATIONS If requesting a Rule 20.01, always ask for a Rule as well. We are not the mental health experts qualified to render opinions! I have been surprised! Provide as much collateral information as possible: Medical records School/IEP records Neuropsychological evaluations Prior Rule 20 examinations Contact info for physician, pediatrician, therapist, social worker, special education case manager 27

28 CASE LAW REVIEW Commonwealth v. Jones, 26 Mass.L.Rptr. 567 (Mass. 2010) Not Reported Issue: Whether the defendant was competent to stand trial for first degree murder charge after first being found competent and then subsequently being found incompetent. Holding: Yes, the defendant was competent to stand trial. Even though he undoubtedly was impaired and had substantial cognitive and behavioral impairments, he was capable of rational calculation in his work and personal life, and, with persistence, was capable of understanding the proceedings and assisting with his defense. There is a compelling public interest that one accused of being responsible for crime be tried. That interest could not be more compelling than where the crime at issue is first degree murder. Id. at *6. Job as dishwasher for three years - impressed co-workers CASE LAW REVIEW, CONT. Commonwealth v. Jones, 26 Mass.L.Rptr. 567 (Mass. 2010) Not Reported Review of Evaluations: Diagnoses pervasive personality disorder, autism spectrum disorder, Asperger s disorder. Impressions severe and pervasive impairment with social interaction and communication; low IQ Received SSI and also received special education services during school Defense Examiner multiple examinations; highly regarded examiner Neurological deficits prevent defendant from defending himself; little functional understanding of charges and nature of trial. Condition is easy to miss for those who are not professionals. State Examiner Unable to give an opinion intentionally acting like he understands less than what he does Previous examination competent Examiner didn t testify CASE LAW REVIEW, CONT. State v. Shields, 593 A.2d 986 (Del. 1990). Issue Whether the defendant was competent to stand trial for two counts of first degree murder, one count of unlawful sexual penetration, and one count of unlawful sexual intercourse. Holding Yes, the defendant was competent to stand trial. Even though seriously impaired, the defendant possessed the requisite mental capacity to appreciate his presence in relation to time, place, and things, grasped the seriousness of the charges, understood the role of the judge, prosecutor, defense attorney, and jury, and had a sufficient relationship with his attorney. Dusky Test Present ability: 1) consult with defense counsel; 2) assist with defense; and 3) understand nature of proceedings. 28

29 CASE LAW REVIEW, CONT. State v. Shields, 593 A.2d 986 (Del. 1990). Review of Evaluations Well-documented history throughout defendant s lifetime Numerous diagnoses mental retardation, ADHD, learning and language disorders, developmental disorders, etc. Numerous admissions to treatment facilities Administered tests throughout his lifetime always borderline performance Wechsler Adult Intelligence Scale Verbal IQ: 68 (Defective) Performance IQ 83 (Dull Normal) Full Scale IQ: 73 (Borderline) Numerous examiners conducted multiple examinations no conclusive opinion regarding defendant s competency. Court personally interviewed defendant - The Court was struck by the appropriate responsiveness of the defendant to overall questioning. Id. at CASE LAW REVIEW, CONT. In re the Matter of Erick B., 4 Misc.3d 202 (N.Y. 2004) Issue: Whether the defendant was competent to stand trial and proceed in the juvenile delinquency proceeding. Holding: No, the defendant was not competent to stand trial. Due to his neurological deficits, the defendant was unable to understand the judicial system and the adversarial process, develop a working relationship with his attorney, and comprehend his attorney s advice to make an informed decision. Dusky Test: 1) consult with defense counsel; 2) assist with defense; and 3) understand nature of proceedings CASE LAW REVIEW, CONT. In re the Matter of Erick B., 4 Misc.3d 202 (N.Y. 2004) Review of Evaluations Diagnoses autism spectrum disorder, borderline intellectual functioning, pervasive developmental disorder, mild mental retardation, Asperger s syndrome, psychotic disorder. Impressions perceptual deficits, cognitive limitations, language comprehension and communication difficulties, limited awareness of social conventions, disorganized though processes, difficulty forming social relationships Three examiners conducted full competency analyses unanimous opinion that the defendant was not competent to stand trial. Defense attorney voiced concerns about his inability to interact and communicate with her Two doctors submitted reports that they did not believe defendant was competent 29

30 CASE LAW REVIEW, CONT. State v. Smith, 982 So.2d 756 (Fl. Ct. App. 2008). Issue: Whether the defendant was competent to stand trial for burglary charges. Holding: No, the defendant was not competent to stand trial. Due to the defendant s diagnoses of mental retardation, he was not competent to stand trial and would likely never regain competency to stand trial. Florida Statute (1) the charges against any defendant found to be incompetent to proceed due to retardation or autism shall be dismissed if the defendant remains incompetent to proceed within a reasonable time after such determination, not to exceed 2 years. CASE LAW REVIEW, CONT. State v. Smith, 982 So.2d 756 (Fl. Ct. App. 2008). Review of Evaluations Diagnosis mental retardation Three evaluators determined the defendant was incompetent to stand trial due to his diagnoses of mental retardation. The defendant was re-evaluated the following year and again found incompetent to stand trial. Counsel stipulated to reports and diagnosis of mental retardation. Mental retardation and autism are generally life-long conditions which make it unlikely that a defendant will ever regain competency to stand trial. Why this case is important Florida is one of the few states that revised statutes to specifically address autism CASE LAW REVIEW, CONT. In the Matter of the Welfare of D.L.H., 2009 WL (Mn. Ct. App. 2009). Facts: D.L.H. became dysregulated agitated and grabbed his mother s hair. Mom called police. Issue: Whether their was a sufficient basis to establish that D.L.H. had been restored to competency prior to being found guilty for making terroristic threats and second degree assault. Holding: No, there was not a sufficient basis to establish that D.L.H. had been restored to capacity because the evaluator submitted a single, one-page report that failed to address whether D.L.H. had developed a sufficient understanding of criminal proceedings or skills that would allow him to consult with an attorney and participate in his defense. Reversed and remanded. 30

31 CASE LAW REVIEW, CONT. In the Matter of the Welfare of D.L.H., 2009 WL (Mn. Ct. App. 2009). Review of Evaluations Diagnosis an autism spectrum disorder. Impressions able to understand the nature of his acts and that acts were wrong, but he could not participate in his defense or consult with his counsel. Evaluator s report consisted of 29 pages of single spaced type that was based on five interview sessions with D.L.H., 4 interview sessions with D.L.H. s mother, psychological testing, court documents, and D.L.H. s mental health and educational records. Found to be incompetent Court ordered Examiner to continue working with D.L.H. to restore competency. After only 15 hours of working with D.L.H., Examiner submitted a single, 1-page report that D.L.H. was now competent failed to address Dusky factors. THANK YOU! Questions? Feel free to reach out!! Jason Schellack, Esq. jason@autismlawcenter.com (o) CLE for Good Webinar Series: Fifth Annual Full Ethics and Elimination of Bias Training - Not Just for Wednesday, May 25th, :00am 3:20pm 5-hour CLE webinar fulfills: 3 CLE credits of Ethics & 2 CLE credits of Elimination of Bias. 4th Seminar, 2:15pm-3:15pm (please join at 2:10 p.m.): What Matters in a Rent Escrow? Representing Clients or Advising Pro Se Participants in a Specialized Court Case by Samuel Spaid, housing attorney with HOME Line (1.0 hour CLE Elimination of Bias credit approved). We ll be starting shortly Tech troubles or other issues? Contact Or help@cleforgood.com 31

32 WHAT MATTERS IN A RENT ESCROW Representing Clients or Advising Pro Se Participants in a Specialized Court Case By Samuel Spaid WHAT WE RE GOING TO COVER Overview of Rent Escrows A Basic Understanding of the Process Background of the Study Methods, Limitations, Solutions Results of the Study In General Attorneys in Rent Escrows Conclusions and Suggestions For Rent Escrows And Beyond TENANT DEMOGRAPHICS Rent Escrows are court cases filed by residential tenants, primarily, but not exclusively, in order to receive non-emergency repairs where they live. Tenant demographics were not studied in this survey because the information is not tracked by the courts. However, tenant demographics as a whole have been well studied. 32

33 RENTING VERSUS OWNING Share of Households that Own or Rent Their Home* Somali African-American Mexican Asian Indian Hmong Ojibwe Korean Chinese All Minnesotans Vietnamese White 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% Owners Renters *Minnesota State Demographic Center, January 1, 2016 HOUSEHOLD INCOME $80, $70, Median Household Income* $74, $60, $50, $40, $30, $31, $20, $10, $0.00 Owners Renters *U.S. Census Bureau, American Community Survey 5-Year Estimates HOUSING COSTS 50% 45% 40% 35% 30% 25% 20% 15% 10% 5% 0% Percentage of people who spend 30% or more of their income on Housing Costs* 24% Owners Renters 46% *U.S. Census Bureau, American Community Survey 5-Year Estimates 33

34 POVERTY 30% Experienced Poverty in the Last Year* 27% 25% 20% 15% 10% 5% 3% 0% Owners Renters *U.S. Census Bureau, American Community Survey 5-Year Estimates MOVING 40% 35% Moved in the Last Year* 35% 30% 25% 20% 15% 10% 5% 7% 0% Owners Renters *U.S. Census Bureau, American Community Survey 5-Year Estimates REPAIRS AND TENANTS Tenants are more likely to be part of an ethnic minority group, make less, spend a higher percentage of what they make on housing, experience poverty, and move more often than homeowners. Repairs are the most common reason tenants call our hotline. Repairs are the most common reason tenants who call our hotline want to move in the middle of the lease. The ability of tenants to effectively deal with various repair issues, is a fundamental aspect of having safe and secure rental housing. 34

35 ATTORNEYS IN RENT ESCROWS 100% 90% 80% 70% 60% 50% 40% 30% 20% 10% 0% Tenant's Side Overall Landlord's Side No Attorney Tenant has Attorney Both have Attorneys Landlord has Attorney ATTORNEYS IN A PRO SE FIELD 55% of Rent Escrows were Completely Pro Se Both Sides Were Represented in only 12% of Cases However, Attorneys were Often Involved in the Process, and Landlords are Sometimes Required to have an Attorney Some Practices are Better than Others and Attorneys are in the Best Situation to Learn and Know Which Work and Which do Not Attorneys have a Lasting Effect on Judges, Even After Their Case is Over The Law can be complicated, but tenants (and landlords) must generally proceed without an attorney in a Rent Escrow. 35

36 NOT JUST TRUE FOR HOUSING COURT Many Important Legal Fields are Often Pro Se Housing Family Small Claims Court While most of this information is specific to housing law, there are some general principles which may apply elsewhere. Pro Se Systems can Work Attorneys Can make an Impact without Direct Representation (how is likely field specific) RENT ESCROWS IN BRIEF Legal Setting WHAT IS A RENT ESCROW Statutorily Created by Minn. Stat. 504B.385 Court of Equity Wide Variety of Relief (Minn. Stat. 504B.425) Specialized Rules Chapter 504B (504B.385 is only a starting point) Minn. R. of Gen. Prac. 601 et. seq. (if in housing court) Still Easier than most District Court Cases Filing Fee is Low Court s Generally Serve 36

37 THE LITIGANTS Plaintiff = Tenants Demographics have been well studied, were not studied here* Tenants are represented in 20% of Rent Escrows Approximately 50% of tenants filed for, and were granted IFP (in forma pauperis) status. Defendant = Landlords (defined by Minn. Stat. 504B.001, subd. 7) Demographics have not been well studied, were not studied here* Landlords are represented in 35% of Rent Escrows No landlord filed or was granted IFP status. (*while some efforts were made to study the demographics of both tenants and landlords in this study, they were abandoned because no demographic information is specifically tracked or recorded in court information.) TYPICAL RENT ESCROW TIMELINE Pre-Filing Requireme nts Filing Initial hearing Evidentiar y Hearing Additional Hearings Written Letter Expired Inspector s Report 14+ Days later Affidavit of Rent Escrow (appendix a) Days Later Approximately 7 Days Later Generally by Order Possibly by Motion The average Rent Escrow finished within 37 days. However, more than 50% of the rent escrows finished within 22 days or less. Less than 6% of the cases lasted for more than 100 days. Only two cases studied were appealed to the Court of Appeals. STUDY BACKGROUND Study Methods Limitations 37

38 STUDY METHODS Collection Methods We obtained the case file numbers for all Rent Escrows filed from January 1, 2011, through August 7, 2014, from the State Court Administrator. (appendix b) Over the course of two years we collected information from these cases. We recorded as much information as we could in the various monitored categories. Sample Size From January 1, 2011, through August 7, 2014, 951 cases were filed and marked as Rent Escrows in Minnesota. We reviewed 379 Rent Escrow files from this time period in 8 separate counties. This amount is greater than 39% of all Rent Escrows during this time. OVERVIEW For each case we reviewed, we collected a variety of information which included: Names and Addresses Representation and IFP Status Reasons for Filings Procedural Steps Prior to Filing Outcome of Cases and Contents of Orders and Settlements OVERVIEW (CONT.) We Also Tracked Whether the Tenant Received Repairs Whether the Tenant Received Money Whether the Tenant Received Some Other Type of Relief (including) Break Lease Neutral Reference Lease Renewal If the tenant received relief in one of these three catagories, we marked that the tenant received some benefit. 38

39 DIRECT FOLLOW UP We called a random sample (of our sample) of the tenants back and asked the following questions: Were you happy with the results? Did you think the process was fair? Would you file another Rent Escrow? Would you recommend it to others? Is there anything about the process you would change? We also recorded whatever else they wanted to tell us about the process. LIMITATIONS AND PROBLEMS Initial Filings were generally handwritten by the tenant Information in the initial filing was provided by the tenant to the best of the tenant s knowledge Court Orders are often fill-in-the-blank orders with judges who sometimes don t fill in-the-blanks Settlements weren t always recorded Some information (such as demographics) were not recorded at all No Control Group SOLUTIONS Limited Solutions Were Available In most cases where there was a question we either excluded the data completely or marked it negatively towards the tenant. e.g. we tracked whether the tenant sued the owner, management company, or both. However, the tenant recorded this information incorrectly so often, we had to throw out the entire field. e.g. if the tenant didn t show up to court or ended the court case with a letter and no further explanation, we counted that as a loss (even though direct follow up showed what we suspected tenants, at least occasionally, don t show up or ended the case because they got what they wanted). This Study was Observational: Results are Descriptive, not Predictive (or at least this study doesn t prove that they are predictive) 39

40 ANALYSIS We used a variety of methods to look at the data. HOME Line was assisted in this process by STATCOM (a program run by the University of Minnesota) HOME Line was also assisted by Brandon Whited long after his association with STATCOM ended. Two Primary Methods Decision Trees Chi-Square Tests However! No understanding of these methods is necessary for this presentation. All information will be displayed in simple, understandable charts (I hope). THE RESULTS General Results Specific Results GOOD NEWS FOR TENANTS Tenants Receive Some Benefit Most of the Time If you look at all cases, tenants received some benefit in 81% of cases. If you look at all cases and exclude those cases where tenants lost for a procedural reason, then tenants received some benefit in 89% of cases. If you consider all court orders, tenants received some benefit in 66% of cases. If you look just at court orders and exclude those cases where the tenants lost for a procedural reason, then tenants received some benefit in 80% of cases. Important Note Receiving a benefit does not necessarily mean the tenant was happy with the results. 40

41 THIS CHART AGAIN 100% 90% 80% 70% 60% 50% 40% 30% 20% 10% 0% Representation in Rent Escrows Tenant's Side Overall Landlord's Side No Attorney Tenant has Attorney Both have Attorneys Landlord has Attorney EARLY OBSERVATIONS Tenant s Should Be Encouraged to File Rent Escrows The Rent Escrow process works and is an effective way for most tenants, even pro se, to obtain at least some relief. anecdotal note: Tenants who have gone to the trouble of finding an attorney, probably have a legitimate problem. Tenants who go to the trouble of filing a court case on their own, almost certainly have a legitimate problem and their landlord is ignoring it. Tenants don t seek immediate help and they don t rush to file court cases. Pro Se Court Processes Can Work A method which encourages and allows people to proceed without an attorney, is not inherently a bad thing. ATTORNEYS IN A PRO SE FIELD (PART 2) Attorneys in Rent Escrows Representation by Counties Representation by Issues Other Representation Trends Effect of Attorneys in Rent Escrows Quantity of Wins Quality of Wins Settlements Effects Beyond Direct Representation 41

42 REPRESENTATION BY COUNTY % 11 Number and Percentage of Representation Overall by County % 42% 52% 47 26% Anoka Dakota Hennepin Ramsey Washington 5 60% 50% 40% 30% 20% 10% 0% Total Number of Cases in County with an Attorney Percentage of Cases in County with an Attorney LANDLORD REPRESENTATION BY COUNTY 90 Number and Percentage of Landlord Representation by County 60% % 8 40% % 42% 37 26% 5 50% 40% 30% 20% 10% -10 Anoka Dakota Hennepin Ramsey Washington Total Number of Cases in County with a Landlord Attorney Percentage of Cases in County with a Landlord Attorney 0% TENANT REPRESENTATION BY COUNTY Number and Percentage of Tenant Representation by County 43 32% 23% 22% 20 16% 7 3 5% Anoka Dakota Hennepin Ramsey Washington Total Number of Cases in County with a Tenant Attorney Percentage of Cases in County with a Tenant Attorney 60% 50% 40% 30% 20% 10% 0% 42

43 REPRESENTATION BY ISSUE Generally, attorneys represented landlords and tenants regardless of what the case was about, with a few exceptions. Landlords had attorneys in 71% of neighbor cases. Landlords had attorneys in 45% of non-repair/neighbor/privacy cases (Other) Tenants had attorneys in only 15% of non-repair/neighbor/privacy cases (Other) Landlords were less likely to have attorneys in cases involving infestations (19%) and appliances (12%) Attorneys were far more likely for shared meters cases. 8 out of 9 shared meter cases had at least one attorney involved. Tenants had attorneys in 6 out of 9 (67%) of the shared meter cases OTHER REPRESENTATION TRENDS In addition to representation differences by county and issue, there were a few other interesting differences. Tenants with inspectors orders had attorneys 28% of the time. Tenants without inspectors orders had attorneys 15% of the time. Tenants with attorneys estimated the cost of repairs, on average, to be over $1, higher. If the tenant was represented, the landlord was more likely to be represented. In 78% of cases where only the tenant was represented, the tenant was IFP. IFP tenants were more likely to be represented (25%) than non-ifp tenants (16%) Individual landlords were underrepresented when compared to cases which involved a business or both a business and an individual. INDIVIDUAL LANDLORDS UNDERREPRESENTED 100% 90% 80% 70% 60% 50% 40% 30% 20% 10% 0% Individual and Business Landlord Representation Individual Business Both Landlord has Attorney Landlord Pro Se 43

44 FREQUENCY OF ATTORNEY IN COURT In addition to tracking whether or not a party was represented, we tracked attorney names when possible. Only 5 attorneys (on either side) took more than 3 cases. 80% of attorneys (on either side) took only 1 case. Note: this is just over a 3 ½ year time period How Many Rent Escrows Does an Attorney Participate In? Case 2 Cases 3 Cases 4 Cases 6 Cases 9 Cases Cases Cases Number of Tenant Attorneys Number of Landlord Attorneys OBSERVATIONS Representation is Not Evenly Distributed For Landlords, excluding the reason the Rent Escrow was filed, the biggest divides are county and whether or not the landlord was a business or an individual. For Tenants, no single variable mattered that much (outside of being from Dakota County); however, cases where the tenant was IFP and had an inspector s order received the most attorneys. Most attorneys does not mean many attorneys. Most individual attorneys in Rent Escrows have little to no prior experience with Rent Escrows. Not necessarily bad if we expect pro se individuals to do this on their own, an attorney should be able to as well. However, it is that much more important for the courts and attorneys who do practice in this area to create and disseminate learning materials and not just materials aimed at pro se parties. DO ATTORNEYS AFFECT THE OUTCOME? Qualification No Control Group We can say that attorneys, of lack of attorneys, for one side or another was connected to certain outcome types (e.g. unrepresented tenants against represented landlords lost far more often than any other category) but we can t say that is the cause because there was no control group. In that example, perhaps landlords are more likely to obtain an attorney when the tenant has a weak case. Otherwise Yes Attorneys affect the Outcome Quantity Rarely Quality of Relief Both Amount and Type Settlement Both Quantity and Quality 44

45 QUANTITY OF RELIEF Tenants receive a benefit in the vast majority of cases regardless of who has representation except in one circumstance unrepresented tenants against represented landlords in court. UNREPRESENTED TENANTS AGAINST REPRESENTED LANDLORDS Unrepresented tenants were less likely to settle with a represented landlord, and if an unrepresented tenant went through a trial against a represented landlord, they were significantly more likely to lose. Unrepresented Tenants Versus Represented Landlords 80% 60% 40% 20% 0% 60% 44% Go to Trial 52% 26% Landlord Wins at Trial Landlord Only Represented Tenant, Both, or No Represented WHAT HELPED? Unrepresented tenants against represented landlords did very poorly in court, unless the tenant had an inspector s order. Tenants only lost 5 of these cases. Two were Rent-Escrow-Eviction combinations where the tenant owed rent. One was for not showing up. One was for refusing repairs. Only one said the tenant failed to prove the issues; however the court noted that the tenant did not cooperate with the court. 100% 50% 0% Wins Inspector's Order 23 5 Losses No Inspector's Order 45

46 TENANT REPRESENTATION AFFECTS QUALITY OF WIN Rent Abatement Tenants with representation received rent abatement more often than tenants without representation. (this is true both for all cases and for cases where the tenant won) Tenants with representation also received more rent abatement for all ($1,175 to $531 respectively) and $1,553 to $1,011 for cases where the tenant won rent abatement. Quality of Win We tracked three things: Repairs, Rent Abatement, and Other The more types of benefits a tenant received, the more likely they were to have an attorney. TENANT REPRESENTATION AND RELIEF Amount of Relief Compared to Tenant Representation 100% 90% 80% 70% 60% 50% 40% 30% 20% 10% 0% Loss Single Win Double Win Triple Win Tenant Represented Tenant Not Represented EXAMPLE OF A PROBLEM An example of one of the problems we came across Tenants with attorneys get repairs less often. Or so it appears from the data. However, what is almost certainly happening is that tenants without attorneys stop sooner while tenants with attorneys pursue the case longer the landlord makes repairs, but the attorney asks for a trial on rent abatement. However, since the repairs have already been made, and the order is a fill-in-the-blank order, the judge will often simply write down how much the tenant gets back while the repairs may not even be noted. 46

47 OTHER JUDGMENTS AND SETTLEMENTS Judges can order, and parties can settle for, a variety of different things. Break Lease No Retaliation Neutral Reference Attorneys Increased the Likelihood of Receiving Other Judgments If both sides are represented, much more likely (due to court fees and attorney fees) If the tenant was represented, slightly more likely (again due to court fees and attorney fees) If the case settled, then any attorney made receiving other judgments more likely These reliefs were much more likely to be related to the tenant And just having an attorney (for the tenant) made settlement more likely. MONEY IN SETTLEMENTS No real difference between the average amount of rent abatement received if the tenant settled or if the tenant went to trial overall. However, if the tenant won the trial, tenants received significantly more rent abatement. This amount only counts rent abatement, not court costs, attorney fees, security deposits, or other money provided to the tenant. $1,200 $1,000 $800 $600 $400 $200 Tenants Received More Money if they Won a Trial $663 $0 Average Money in Settlements $1,047 Average Money in Court Orders MONEY IN SETTLEMENTS WITH ATTORNEYS Tenant Won Only Landlord Represented or None Only Tenant Represented or Both Settlement $539 Court Order $866 Settlement $1,081 Court Order $1,714 47