Firm and Legal News
of hot topics in the legal profession.
Roughly two and a half months ago, Kate A. Venable, Attorney at Law opened for business. And, Attorney Venable is happy to say that business is doing well and would like to share some important firm updates:
As many of you know, the 2016 Presidential Election has taken over the news cycle in the past few months. But before the news began focusing almost solely on the election, the media was focused on something else entirely: a seeming increase in the shooting of unarmed African Americans. In response, there have been a flurry of books written and documentaries made about racism in American and how, despite the passage of the Civil Rights Act of 1964, racism nonetheless permeates American society 52 years later.
In her book Stand Your Ground: Black Bodies and the Justice of God, Kelly Brown Douglas looks at the history of racism in America and particularly focuses on the recent passage of “Stand Your Ground” laws in various states, like Florida, where George Zimmerman used this law as a defense to killing Trayvon Martin. And while I do not go as far as Douglas to state that “Stand Your Ground” laws are inherently racist and justifications for “murderous violence against black bodies,” I do think that it is important to look at how we got to the passage of these laws and the actual effect the laws have had on people of color. (92).
The legal basis of “Stand Your Ground” laws is the Castle Doctrine, which is a legal doctrine that allows a person to use force in self-defense against an intruder in his or her own residence. In other words, the doctrine states that a man has a right to protect his “castle” with force, if necessary. And it is from this doctrine, that “Stand Your Ground” laws were derived. Further, Ohio has a “Stand Your Ground” self-defense applicable in both civil and criminal cases. Ohio Rev. Code § 2901.09 and § 2307.601. Both state that there is no duty to retreat and can use force against an intruder in self-defense, in defense of the property, or in defense of another. Id. However, the person must reasonably believe that the aggressor intends to cause bodily harm or death. In other words, the law does not permit a person to react with violent or fatal force if the aggressor is simply yelling and/or moving towards you in an aggressive manner. Various other states, including Florida, have adopted some version of this law, which, Douglas argues, has led to the disproportionate killing of people of color. And even though the law is supposed to prevent the killing of an unarmed aggressor from being justified in self-defense, the law does not always do so, as seen in the case of Trayvon Martin.
So what do we do?
Regardless of political stance, it is imperative that the legal community seriously look at the implications of “Stand Your Ground” laws for people of color. Whether or not enactment of “Stand Your Ground” was meant to be racist, the results arguably have been. Should the laws be repealed? I am not sure, but I do agree with Douglas that “Stand Your Ground” laws perpetuate a culture that is afraid of people of color and has created a fear so great that a white person’s first reaction to the perception of a person of color as an aggressor is to shoot. It is this fear and paranoia that every person of color must be violent that is the problem, not the law, not the second amendment, but fear. And yes, a person should be able to protect his or her property from an intruder without impunity. However, the result of such a right has been that force is met not with reasonable and proportionate force, but fatal force. And, more disturbingly, courts have held that that fatal force is justified. Therefore, the legal community must look at why and how “Stand Your Ground” has evolved into a justification for the use of fatal force against unarmed trespassers and aggressors. And, it is through that inquiry and that inquiry alone that we may even begin to understand how what began as simply as right to protect property became a successful defense to murder.
The upcoming November 8, 2016 Presidential Election has been nothing short of dramatic. With this drama, I have heard many people raise concerns about voting rights. Therefore, it is important that all of us get a refresher course on what our rights actually are the day of the election. Here are a few basic things to remember on/before election day:
If you have any other questions about voting, please visit the Ohio Secretary of State Website at http://www.sos.state.oh.us/SOS/elections/Voters.aspx. If you experience or you believe you have witnessed any impropriety in the voting process, you can report it to your county board of elections. A directory can be found here.
One of the most cited reasons for voter disenfranchisement on election day is a result of undereducated elections officials. If you or anyone you know is interested in becoming a precinct election official, you can apply here.
As part of my mission to bring legal representation to those who cannot otherwise afford it, I recently came across this relatively new form of representation called limited scope representation, or what is also known as “unbundled” legal services. My research into this started with an article in “Ohio Lawyer” and led to me sitting down to read the entire ABA Handbook on limited scope representation and here is what I learned:
In 1994, the ABA did a study of low to moderate income households (under $60,000/year) and found that 7/10 low income households and 6/10 moderate income households did NOT use the legal system to resolve their legal issues.[i] And, this was largely due to the fact that they did not have access to affordable legal representation reasons being that hourly rates and retainers are simply more than these individuals can afford.
Further, these individuals seeking legal representation are typically involved in cases relating to family law, bankruptcy, housing, landlord/tenant, and community law issues that usually only require filling out forms to be filed with the Court. However, these individuals usually do not have access to the necessary resources without the aid of an attorney, whose retainer and hourly fees they cannot typically afford. So, how can we, as attorneys, limit our representation of these individuals so that we get paid and they get full access to legal representation?
How Does it Work?
There are many different ways to limit representation, most of which will vary by type of case. However, the main thing to keep in mind is that you are NOT limiting the quality of representation you give each client.[ii] Therefore, you should interview the client as thoroughly as you would a client for whom you are providing full representation. The ABA Handbook provides valuable interview checklists to follow regarding limited scope representation.
After the interview, you can determine which tasks the client will perform and which tasks the attorney will perform. A common example is that the attorney will charge a flat fee to prepare filings for the client that the client then files pro se. Another example is paying as you go, in which the client pays the attorney at the end of each meeting or court appearance. Also, the attorney may “coach” the client during mediation or a hearing in which the attorney is present, but does not enter an appearance as the client’s attorney. Again, the ABA Handbook provides several sample limited scope retainer agreements that have been approved by ethics committees in various states.
Is it Ethical?
At its inception, limited scope representation or “unbundling” raised ethical questions under the Model Rules of Professional Conduct, namely whether the limitation was “reasonable under the circumstances.” Ethics committees in several states, including Ohio, have stated that limited representation is “reasonable under the circumstances” provided that the limits are clearly described, the client gives informed consent, and all agreements and the client’s informed consent are in writing and signed by both the client and the attorney. Further, the attorney should modify the agreement should the scope change and amend the original to reflect these changes as necessary. Finally, it is important to remain in contact with the courts in which you normally work when you are providing limited representation. This way everyone remains clear about who is to be contacted about what, where pleadings should be mailed/served, and whether you as the attorney can accept service for the client. This also makes withdrawal easier when you have finished representing a client in a particular matter because if the judge knows from the beginning that your representation is limited, the judge is more likely to allow you to withdraw.
What Are the Benefits?
Limited scope representation may seem like it does not have many benefits, at first. However, limited scope representation often has the potential to turn into full scope representation. And because the fee is usually flat or based on services provided, attorneys have clients who are fully collectible up front. Finally, “limited scope legal services offer attorneys the ability to say ‘yes’ more often to more consumers . . . by offering limited scope services . . . at affordable flat-rate prices.”[iii]
[i] American Bar Association, Handbook on Limited Scope Legal Assistance, pg. 10.
[ii] Pruett, Eileen, and Bert Whitehead Tiger. "Limited Scope Representation: A New Way of Thinking About Accessible Legal Services." Ohio Lawyer 30.5 (2016): 16-21. Print.
[iii] Id. at 20.
Kate A. Venable
Kate A. Venable is an attorney in Youngstown blogging about her firm and hot topics in legal news.