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David Sitomer has spent his 30-year career toiling in one of the least-prestigious jobs a D.C. lawyer can have — defending deadbeats and delinquents in Family Court. Now he is in a fight to keep that job. Sitomer is battling a new policy that limits who can be appointed and paid by the Family Court. Until recently, that work had been open to any lawyer with a valid D.C. law license. Sitomer is among 10 lawyers who have sued D.C. Superior Court judges, claiming that they improperly took away the lawyers’ clients and cases when the court adopted a more restrictive system for evaluating and picking court-appointed counsel in family cases. To these lawyers, many of whom had been receiving court-appointed work for decades, the court’s move was a personal attack that will not only keep them out of the courtroom but put some of them out of business. “This is an arrogant, top-down pattern,” Sitomer says. “These are unconstitutional procedures.” The judges, meanwhile, maintain they were just trying to improve the quality of legal representation given to the most vulnerable. Superior Court’s Family Court hears cases of child abuse and neglect as well as those involving juvenile delinquency and adoption. About 800 cases involving children were filed in the Family Court last year, nearly all of which were handled by court-appointed lawyers, according to the court. The lawyers, who are representing themselves, won an early round when U.S. District Judge Ricardo Urbina refused to dismiss their case earlier this year. The matter is now before the U.S. Court of Appeals for the D.C. Circuit. A three-judge panel will decide whether the plaintiffs’ ability to work and be paid as court-appointed lawyers for the poor qualifies as a constitutionally protected property interest. In his March 11 ruling, Urbina cautiously stated it might. Briefs in the case are due this week, and arguments are expected to take place early next year. Donald Verrilli, a partner at Jenner & Block who is representing the judges pro bono, says the lawyers’ claims are a stretch. “They may or may not have the expertise they claim to,” says Verrilli, co-chair of his firm’s appellate and Supreme Court practice. “What they don’t have a right to is to be hired by the government based on that expertise.” Judge Lee Satterfield, presiding judge of the Family Court and one of 15 judges named as defendants in the suit, released a one-sentence statement: “We were interested, as was Congress, in ensuring that children and families before the Family Court be well-represented, and that taxpayer funds be well-spent.” He declines further comment. Underlying the case is a generational shift in the family law bar. Many forced out under the new system had been handling Family Court cases for years. Now a big chunk of that work is being turned over to younger lawyers with more impressive pedigrees. Some of the dispute was captured in a report on the Family Court released earlier this month by the nonprofit Council for Court Excellence. “I saw some whom I viewed as competent attorneys — who were in the practice for years, if not decades — excluded,” said a lawyer quoted in the report. “That left me with a bad impression.” Priscilla Skillman, assistant director of the council, says it is beneficial to have different groups providing representation. But the dissatisfaction with the new system among experienced family law attorneys is understandable, she says. “Some lawyers with 15 to 20 years of child-neglect practice have been supplanted by new attorneys,” says Skillman. “That predictably caused dissension. I’m not sure the court was sufficiently proactive in anticipating and mitigating the consequences of how this would appear to people whom they had been depending on for a long time.” OUT WITH THE OLD Public criticism of the court’s handling of family cases burgeoned about five years ago, after Superior Court Judge Evelyn Queen returned a toddler to her birth mother without holding a hearing. Two weeks later, the girl was allegedly killed by her mother’s friend. Brianna Blackmond’s 2000 death caused a furor on Capitol Hill. Everyone involved in Blackmond’s case, it appeared, had done something wrong. The attorneys, the social workers, and the judges all shared blame for letting Blackmond slip through the cracks of a child welfare and court system that is supposed to protect the most defenseless. Federal lawmakers — chief among them then-House Majority Leader Tom DeLay — threatened to strip the District of its jurisdiction over family court proceedings, which at the time were being handled within a division of Superior Court. Instead they passed the Family Court Act of 2001, which created a Family Court within D.C. Superior Court. Among the law’s mandatory reforms was a requirement that the court establish standards of practice for attorneys appointed as counsel in the Family Court. Beginning in 2003 a committee of 12 Superior Court judges chose more than 200 lawyers who could be appointed and paid by the Family Court. The judges reviewed applications from about 350 practitioners. Before the system was instituted, any lawyer with a D.C. law license could register for Family Court appointments. The new appointment system made way for a group of younger, usually salaried attorneys. Most of the city’s graying family law bar make a modest living by getting paid $65 an hour for court-appointed work. The same year the court changed its appointment scheme, it also awarded a $1.5 million-a-year contract to the Children’s Law Center, to represent children in abuse and neglect cases. The money came from Congress, which wanted the D.C. courts to improve the quality of counsel for children. The center’s lawyers should handle a third of the children in abuse and neglect cases, according to the contract. These lawyers do not have to be approved by the judges, but receive training and oversight at the center. Founded in 1996, the nonprofit has expanded from three staffers five years ago to 32 today — some of whom are former corporate lawyers and young attorneys just out of top-tier law schools. Judith Sandalow, a Yale Law School graduate, is the executive director, and the staff is assisted by investigators and paralegals. By contrast, 58-year-old Sitomer is nearing retirement. His office is a musty converted living room in his Mount Pleasant row house, filled with abstract art, piles of books, and a batik-covered couch. He chafes at the idea of being replaced by the center’s younger lawyers. Experience is at the heart of the lawyers’ court claims. They say the new appointment system keeps them from practicing in an area of law where they developed an expertise. “I’ve been specializing for 30 years, and then suddenly told I’m not good enough,” Sitomer says, although he has been chosen to represent clients in about five cases since the new appointment system was implemented nearly two years ago. The response to the suit in the family law bar and in the broader court community is mixed. There is both widespread recognition that the representation needed to be improved and acknowledgment that the court’s new appointment system is unfair. Indeed, complaints from children and parents represented by court-appointed lawyers are stark. In the Council for Court Excellence report, one parent is quoted as saying, “My lawyer is a joke,” and another as saying, “I don’t want my attorney to speak for me because he doesn’t know me.” A teenage foster child said, according to the report, “My lawyers really don’t care about what I say. They don’t even know me.” It is more important to protect the children in the court system than the careers of the court-appointed lawyers, says Harvey Schweitzer, who has been involved in child welfare issues since 1980, when he helped create the Counsel for Child Abuse and Neglect Office at the D.C. Superior Court. “I’m not trying to be callous about it, but I come at this from a very different perspective,” says Schweitzer, who is an expert on adoption law. “What is important is what is best for indigent children and parents.” Some standards were necessary, says Kevin Kassees, the vice president of the Family Court Trial Lawyers Association. “Some lawyers were doing it to kill time in retirement and weren’t taking it seriously, and you can kind of tell,” he says. “The job is more or less there for convenience. You don’t have a boss; you set your own hours; develop a workload however light or heavy you want. People who don’t want to work for anybody are drawn to this kind of work.” But even among lawyers who were chosen to represent clients, the perception that the new system is arbitrary is widely held. Lawyers were not told on what criteria they were being evaluated, and, Kassees says, it “shouldn’t be a popularity contest.” The Council for Court Excellence commended the court for its efforts to improve the quality of representation, but also urged more transparency in the selection process, suggesting that the court give lawyers who didn’t make the cut a written explanation and an opportunity to appeal. The report also recommended that others, in addition to judges, help select the attorneys and that judges not handle the review of payments to court-appointed lawyers, a process the report says “is fraught with conflicts of interest.” “Judges place their friends on cases before them. The decisions are not based upon competence or the ability to relate to various clients,” one lawyer is quoted as saying in the council’s report. “I believe that some magistrate judges and judges select lawyers who they believe are safe�lawyers who will not appeal their decisions nor challenge them.” CLASS WARFARE The lawyers suing over the policy seek class status for all attorneys who appear before the Family Court. The three lead plaintiffs, however, make an unlikely trio. Pamela Roth appears often in Family Court, having been selected by the judges to represent children in abuse and neglect cases. A 20-year veteran of the D.C. courts, Roth is known by colleagues as a competent attorney and an outspoken advocate for court-appointed lawyers. She did not return repeated calls for comment on this story. Sitomer, who says he lives on $20,000 to $30,000 a year, was only chosen to represent clients in a handful of abuse and neglect cases since the new appointment system started in 2003. He had applied to represent juvenile delinquents but wasn’t selected. A third plaintiff, David Ontell, didn’t apply, saying he “shouldn’t have to beg for a job.” Ontell has been disciplined several times by the D.C. Bar for ethical mistakes, including “neglecting a legal matter” and misrepresenting the status of cases to his clients, according to Bar records. After graduating with mediocre grades from George Washington University Law School in the early 1970s, Ontell says, he signed up to do court-appointed work because he knew it would afford him independence. He quickly learned that it wasn’t necessary to be a legal scholar to be successful in family court. “When I first started, I noticed the lawyers didn’t have a great knowledge of the law; they weren’t John Roberts, this fellow who knows every case that was ever decided,” Ontell says. “Looking back, though, those people used to get the best pleas for their clients.”
Lily Henning can be contacted at [email protected].

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