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Part I Heather Purcell Donald Falk Andrea Bridgeman Linda Goldstein Part II Philip F. Carpio Todd Hutchins David Cahn Phyllis Pratt

DELICATE WORK ON DOMESTIC VIOLENCE Philip F. Carpio, Associate, Hunton & Williams, McLean, Va.

The concept of pro bono legal service is founded on two primary principles. The first is essentially practical — there is a documented and compelling public need for such assistance. The second rests on the ethical bedrock of the legal profession — an attorney has a fundamental responsibility to ensure equal access to justice for all. Nowhere are these two principles more evident than in the needs of the victims of domestic violence. A lot of attorneys get butterflies or worse the first time they try to figure out the confusing scene in a courthouse or have to approach a judge’s bench. If members of the legal profession can be intimidated at first, imagine what the experience is like for an individual with minimal understanding of the judicial system. In the realm of domestic violence, victims are often recovering from the physical or emotional effects of battery. Most are of limited means and often have additional fundamental concerns, such as shelter, food, and the care of small children. Many victims speak English as a second language, or come from backgrounds where the police and the judicial system are viewed with distrust and sometimes fear. For these individuals, the legal process can be as intimidating as the abusive spouse. This is where the assistance of pro bono attorneys of the Domestic Violence Project can be invaluable. The project enlists and trains volunteer attorneys to represent victims of domestic violence, with a primary focus on obtaining civil protective orders for battered spouses, children, and other family members who could not otherwise afford a private attorney. Three of the protective order hearings I have handled demonstrate a cross-section of cases that volunteer attorneys can face. The first case involved an immigrant family from South America. The husband had engaged in a long-standing pattern of spousal abuse, some instances of which his minor stepdaughter had witnessed, although he consistently denied his abusive behavior. He had been arrested for battery in one instance, and as part of his suspended sentence had to complete a counseling program. Despite those sessions, his pattern of abuse continued. Several circumstances complicated matters, however. The family had limited means, the wife was not fluent in English, the husband was the sole wage-earner in the family, and he held title to the family home. If the wife pressed her abuse claim too vigorously, there was a significant risk that he would be incarcerated. Even though incarceration may have given the wife a measure of short-term satisfaction, it was in the family’s long-term interest that her husband remain free in order to provide income to the family. In order to resolve the case, I had to rely on the assistance of a volunteer interpreter, provided through Legal Services of Northern Virginia. At the urging of the judge, both sides eventually agreed to a consent order which provided for mutual no-contact, granting temporary possession of the residence to the wife pending sale; granting temporary custody of the children to the wife; and providing for the payment to the wife of a monthly housing allowance after the sale of the family home. This case illustrates the benefit of having counsel for both parties. The two sides were adamant in their positions, and the level of acrimony and fear was extremely high. Without counsel to facilitate a solution to an otherwise intractable problem, this case could have either maintained the status quo, or resulted in the incarceration of the husband. Neither of these outcomes was in the long-term interest of the wife and children. The second case involved a brother physically and mentally abusing his disabled sister. The sister was middle-aged, suffered from a variety of mental and physical illnesses, and was heavily medicated. This was clearly a case where the petitioner was incapable of successfully advocating for herself. Unfortunately, the petitioner did not have any direct evidence, other than her own testimony, to prove her allegations. There were medical reports indicating that she had suffered physical trauma due to battery, but no indication that the brother was the responsible party. The brother, of course, denied everything. This challenging “he said, she said” scenario was ultimately resolved with a mutual no-contact order. The final case involved a husband who physically abused his wife and who had engaged in stalking behavior after she fled the family home. This was actually her second attempt at obtaining a protective order. The petitioner had voluntarily dismissed her first case because she wanted to give her husband a “second chance.” Unfortunately, his abusive behavior simply continued. Sadly, this illustrates a common phenomenon in domestic violence cases — battered spouses are frequently persuaded to give disastrous “second chances.” Fortunately, we had eyewitnesses to the husband’s subsequent physical abuse and stalking behavior. At the hearing, the husband — represented by counsel — stipulated to one most recent act of physical abuse, although he denied all the petitioner’s remaining allegations. I persuaded the judge to enter a protective order forbidding the husband from further contact with the wife, provided the wife possession of the family residence and car, and gave the wife temporary custody of the minor children, with visitation rights for the husband. For new attorneys, pro bono work for the victims of domestic violence provides an opportunity to exercise their trial advocacy skills and get their feet wet in the courtroom. The Juvenile and Domestic Relations Court has several unique features and procedural rules, but the hearings cover all the fundamentals of trial work — from opening statements, direct examination, cross-examination, evidentiary rules and objections, through closing. Most important, the Domestic Violence Project performs a desperately needed public service. The clients who need pro bono services are often confused and afraid of the judicial system, almost as much as they are frightened by the abusive family member. The courts also appreciate the assistance of pro bono counsel, who can provide needed guidance and a measure of stability to potentially volatile circumstances. REFUGE FOR A WIFE BOUND TO SLAVERY Todd Hutchins, Former Associate, Fried, Frank, Harris, Shriver & Jacobson, Washington, D.C. A few weeks ago, my client “Jane Doe” and I walked out of the Immigration and Naturalization Service’s Arlington, Va., Asylum Office with great relief that her asylum claim had been recommended for approval. “This is my life,” she said. She was not exaggerating. Had she been deported to her home country in East Africa, she certainly would have been horribly abused and quite possibly killed. I first read about Jane’s case in an e-mail from the Lawyers Committee for Human Rights soliciting pro bono legal assistance. At the time, Fried, Frank, Harris, Shriver & Jacobson’s public service counsel Karen Grisez remarked that “an asylum case is like a death penalty case, except you’re in a different forum.” That certainly seemed to be true with Jane. A modern, educated, independent entrepreneur, Jane was married into a tribe that traditionally treats wives as slaves of their husbands. Jane’s husband shared his tribe’s belief that the payment to the bride’s family of the traditional dowry of cattle is tantamount to the purchase of the woman as a chattel for the husband to treat as he pleases. Jane, who has long held the belief that women should not be slaves to men and that they should be granted equal rights, refused to be dominated like the women of her husband’s tribe. During a series of interviews, Jane revealed to me the facts that would show a nexus between her feminist beliefs and her husband’s persecution of her. Jane’s husband abused her for refusing to obey his commands, saying, “In my tribe, women must obey their husbands or they will be beaten.” He abused her for criticizing female genital mutilation, which his tribe practiced to deprive women of sexual enjoyment. He often punished her for publicly expressing her feminist beliefs, telling her during beatings: “This is so you will have some new material for your women’s activism.” Finally, the one time that she tried to leave him, he punished her for moving out without his permission by beating her unconscious and breaking her jaw, and he told her that he would kill her if she ever tried to leave him again. Those facts and others showed that, as the feminist maxim holds, “the personal is political” — i.e., the domestic violence Jane suffered was not a mere “private” or “family” matter, but, rather, was a form of political persecution. Nonetheless, I knew that the case would be a challenge. Gender-based violence, such as spousal abuse or female genital mutilation, is not generally grounds for asylum unless it is so severe that it constitutes persecution, and the victim’s government is unwilling or unable to protect her from her persecutor, and the persecution is inflicted “on account of” one or more of the five characteristics protected by the law of asylum: political opinion, race, nationality, religion, or membership in a “particular social group.” Jane and I could easily show that the horrible abuse she suffered was more than enough to qualify as “persecution,” and we could also easily show that, because of her husband’s political influence, Jane’s government was unwilling to protect her from him. But persuading the INS that her husband abused her “on account of” one or more of the five grounds for asylum would prove more challenging. As I took on the case, asylum lawyers and women’s human rights advocates were deeply concerned about the impact of a recent Board of Immigration Appeals decision, In re R-A-, which denied asylum to a Guatemalan woman who had been horribly abused by her husband, a member of the Guatemalan military. Notwithstanding the husband’s belief in male supremacy and his use of violence to punish his wife for any resistance to his domination over her, the Board of Immigration Affairs ruled that R-A- had failed to show a causal nexus between her persecution and her political opinion concerning male domination over women, or her membership in a gender-based social group. Because the husband sometimes abused R-A- whether he was drunk or sober, even if she complied with his commands, and sometimes abused her for no apparent reason whatsoever, the board concluded that she was not persecuted “on account of” her political opinion or membership in a particular social group. Rather, the board found that she was targeted because she was his wife and largely because of his own “personal or psychological makeup,” and therefore did not qualify for asylum. Given the uncertain reach and potentially disastrous impact of In re R-A-, gender-based claims now present issues on the cutting-edge of asylum law. The primary challenge in Jane’s case was to distinguish it from In re R-A- by showing that Jane’s husband persecuted her on account of her feminist opinions, and/or her membership in the particular social group, which I ultimately characterized as that made up of nonsubservient women married to men of her husband’s tribe who believe in that tribe’s traditional cultural norms. To his credit, the asylum officer who interviewed Jane recognized that opinions are no less “political” just because they relate to such matters as family power relations and cultural gender roles, rather than such traditionally “public-sphere” matters as organizing a labor union or rallying an opposition party. That Jane’s asylum claim was granted means that the In re R-A- precedent has not established an asylum process inherently biased against women, whose political persecution frequently relates to such traditionally “private-sphere” matters as family relations and gender roles. I found Jane’s case rewarding in the same ways that many of my billable matters have been; I enjoyed the opportunity to work on cutting-edge legal issues for a client I like and admire and believe should prevail on the merits, and, of course, I enjoyed winning. However, most of my billable matters for corporate clients — whether criminal matters or civil — were ultimately just fights over money. In contrast, Jane’s case was gratifying in ways that no ordinary billable matter could be; I had the privilege of helping to protect someone from being tortured for her belief that women should be treated like human beings, not like cattle being bought and sold. The satisfaction I derived from working with Jane far outweighed the late nights and weekends I spent at the office working on her case. TRYING TO KEEP A FAMILY IN ITS PLACE David Cahn, Associate, Piper Marbury Rudnick & Wolfe, Washington, D.C.

As a midlevel associate with Piper Marbury Rudnick & Wolfe, my involvement with pro bono matters has provided some of my most meaningful work experiences, allowing me to manage relationships with clients and to take the lead on decisions concerning their representation. My most worthwhile effort stemmed from a landlord/tenant case referred by the Legal Aid Society of Washington, D.C. The case involved an action for eviction by a landlord against a family consisting of two parents who work in low-wage public service jobs and three small children. The factual background of the case was particularly intriguing because the family had moved into the property following an extended period of homelessness, and during the first 21 months of their tenancy a large percentage of their rent was paid for through a government-sponsored program to assist homeless families. The property had some housing code violations at the inception of the tenancy, and more significant problems appeared sometime later. Nevertheless, when the family lost its housing subsidy, the parents withheld all rent to force the landlord to make repairs. The landlord filed suit for breach of contract, seeking eviction and a money judgment; the family filed a counterclaim for damages due to housing code violations and requested a jury trial. The family paid approximately 75 percent of its rent into the D.C. Superior Court’s landlord-tenant registry fund pending trial. The landlord was represented by a highly experienced landlord-tenant practitioner, while my primary practice area is franchising and distribution. Yet, with valuable training from the D.C. Bar’s Public Service Activities Corp, I handled all aspects of the case, including a pretrial conference in which the presiding judge actively pushed the parties to settle. At first, the tenants indicated a willingness to settle by simply allowing the landlord to take all money in the court registry, provided they were given a reasonable amount of time to leave the premises and had their security deposit returned. The landlord, however, refused to even guarantee a return of the deposit, so the tenants decided to go to trial. The most significant legal question in the case was whether the court would permit my clients to pursue a counterclaim for all rent paid from the inception of the tenancy — despite the fact that much of that rent came from a third-party subsidy. However, the judge stated on the record, from the first day of the trial, that the subsidy could not be used by the landlord to absolve itself from liability for breaching the implied warranty of habitability. Given the evidence of extensive housing code violations, such a ruling was extremely favorable to my clients. Still, the landlord refused to substantially increase its settlement offer to my clients. As a result, we headed for a trial that lasted six days, including jury selection, opening and closing arguments, extensive bench conferences, and questions from the jury. Since the tenants had the burden of proving the housing code violations, it was my responsibility to organize and present most of the direct testimony proffered at the trial. This matter was my first opportunity to serve as lead counsel in a jury trial, and I gained invaluable experience through all aspects of the work. Happily, the verdict resulted in my clients avoiding eviction and receiving a money judgment for more than $7,000 (including the money they had deposited in the court registry) and costs. Both Piper Marbury and Legal Aid provided me with invaluable support; my supervisor at Piper Marbury attended the entire trial and performed the crucial cross-examination of the landlord, while a Legal Aid staff attorney acted as my mentor and was extremely helpful with her advice. While I perform pro bono service primarily to help improve the community in which I live and work, the process of representing this family through a jury trial provided me with the kind of experience that will enable me to provide much better service to Piper Marbury’s paying customers. BY MEDIATING, A VOLUNTEER AIDS CLIENTS Phyllis A. Pratt, Paralegal Specialist, Federal Deposit Insurance Corp., Washington, D.C. If you didn’t earn at least a passing grade in the course “How to Survive in the Midst of Chaos When All Hell Has Broken Loose,” don’t even think about working as a volunteer at the D.C. Superior Court’s Multi-door Dispute Resolution Division. Some days, you’re the impartial referee assessing the players and their problems in areas such as family problems or commercial transactions. At other times, you’re the life -saver who just happens to have a box of tissues handy for a client’s unexpected tears (or even your own). The court’s Multi-door Dispute Resolution Division was established in 1985, after the American Bar Association suggested ways for courts to fill gaps in service to the community and pitch in to reduce the frustration in resolving common commercial and family disputes. Specially trained volunteers offer mediation to resolve child support, custody, and visitation matters, as well as commercial disputes with values of $5,000 or less that would otherwise head to small claims court. Cases involving weapons, larger amounts of money, or thornier questions are referred to the appropriate legal or social service agency. Although a volunteer is always trained by an experienced professional, I would be remiss not to mention that having the wisdom of Solomon and the patience of Job doesn’t hurt. Being a dispute resolution service volunteer is sometimes like being a “Jackie”-of-all-trades. The intake portion of the service — interviewing and determining actions to be taken — takes from 30 minutes to one hour and is conducted over the telephone or in person. Sometimes, cases can be wrapped up in about that much time. On other occasions, cases may take days or weeks to resolve, depending on the action chosen by the client. There is definitely a mutual benefit to be realized for the volunteer and the clients. First, the clients find a solution to a problem that they thought was impossible to resolve or feared would require them to pay unwarranted attorney fees beyond their means. Then, there’s the satisfaction of knowing that you orchestrated the entire dispute resolution process. Not because you were being paid for your services, but just because … . One of my first cases was a “caveat emptor” matter involving a used car. The complaining party was unhappy about a used car she had purchased from a relative. After driving the car for less than a week, she alleged that the tires were unsafe and the engine had extensive damage, causing her to spend additional money to have it repaired. She wanted the seller to repay her for a set of new tires purchased, as well as the cost of having the engine repaired. The seller contended that the client had purchased the car “as is” and refused to reimburse the costs of the repairs. During mediation, I emphasized to the seller that the client had trusted him and probably would not have purchased the automobile in the first place if she had known the car was unsafe or that additional expenses would be required to make the car operable. In the end, the seller agreed to reimburse the purchaser for half the additional costs. The purchaser accepted these terms, and I was able to wrap up the matter in less than an hour. What was lacking between these individuals, I found, was simply communication. Neither individual attempted to resolve the matter through a meeting of the minds. This experience and many others like it have enhanced my confidence in zealously advocating on behalf of someone who cannot competently defend him- or herself. These attributes have carried over to my regular paralegal specialist job responsibilities while on detail in the Community Affairs Section of the Federal Deposit Insurance Corp. The opportunity to work with the program has also helped me to put many social and political issues into perspective as they relate to people with a low income or no income. Regardless of one’s economic status or an individual’s opinion about the incumbent government leaders, the less financially fortunate of the population is unequivocally deserving of competent legal representation.

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