Lawyers shall not engage in conduct that is prejudicial to the administration of justice

There are two high sounding, phrases that stand as sentinels guarding the probity of the adjudicative process. We are told that lawyers must:

… avoid conduct that undermines the integrity of the adjudicative process….

And

…. not engage in conduct that is prejudicial to the administration of justice….

For the public there is a problem in translating what these phrases mean. Specifically, how much are these ideas a matter of opinion, and what are examples of a lawyer's activities that might "prejudice the administration of justice" or undermine "the integrity of the adjudicative process".

Some components of these 'dicta' are obvious even to casual readers. No one would argue that it is a bad thing to try bribing a judge, to present false evidence in court, to lie or to encourage a client to lie, or to doctor evidence "etc. Less obvious to the public is that the erstwhile professional sins of "moral turpitude" are mostly thrown out. The legal profession seems to view the notion of sleazy behavior, or "turpitude" as old fashioned and poorly reflective of the diverse values of a diverse, multicultural society. There are also more nebulous concepts having to do with how vigorously a lawyer may represent a client. How "vigorous" is "too vigorous"? We'd ask, in addition, how does one measure "not vigorous enough"?  From what we read - apart from "psychotic" behavioral manifestations directed at a judge, "vigorous", in this context, seems hard to define and appears mostly subjective. There is another equally nebulous issue - that of protecting officers of the court, which to non-lawyers seems like the first step on a very slippery slope. Protection of them from what? One can understand a need to protect their professional dignity, to protect their person, to protect them from slander or ungrounded verbal assault. Beyond these considerations how are unpleasant facts, if presented honestly with civility to be considered?  If they are protectively excluded, isn't there a danger to the integrity (or the reality) of justice? Should court officers be protected from themselves? It renders any notion of accountability a charade.

When a judge makes an error of judgement, when a judge makes an error in law, when a judge abandons civil behavior, when a judge ignores the malfunctioning of a "court officer" and takes no corrective action, when a judge fails to accept evidence and acts in ways that favor one party, should everyone involved in the case "protect" the judge?  As citizens, we hope not, or justice is in integrity free fall. Yet the evidence that these issues get any real correction is scant at best, as far as pubic awareness is concerned

There are formal, professional avenues for complaining about these kinds of judicial mischief. In the opinion of many they are all "protective" of court officers. While they accept complaints from the public, they largely protect the "court officer" from any widespread vulgar public view during a review and judgement about the complaint. They are without the kind of public transparency that one would see for similar legal complaints about politicians, religious leaders, doctors and most other professions. The "court of public opinion" is firmly, politely excluded. Some would say that these officially approved avenues for making a complaint about an officer of the court are ultra protective of "court officers". The bottom line proof of protectiveness can be read in the numbers. Look at statistical outcome measurements. Judges are virtually never found guilty of any form of judicial malfunctioning. Either they are paragons, or the system is "rigged", and an "imperfect" court officer is rendered "perfect" by the complaint procedure itself. Likewise, Guardians ad litem who receive public complaints are virtual "saints in the church". The numbers alone tell the story. A low incidence of complaints from the public and virtually total exoneration of all complaints is used by the judiciary to claim "no problem". But consumers know "officers of the court" are far from perfect.  It is near universal public belief that the "deck is stacked"; a complaint will go nowhere, and the time and money spent in pursuing a complaint is a waste. Worse than a waste. A "court officer" who goes through the standard complaint protocol and comes out "squeaky clean" is vindicated. The alleged malfunctioning never happened (or had no merit) and the one filing a complaint is perceived as a "crank".

There is also another potential escape from accountability - an unsubstantiated claim of diminished professional responsibility caused by mental illness, medication side effects, alcoholism on the part of a wrong-doer. This is an "escape hatch" used by politicians finding themselves in trouble, but lawyers can use it too. After accolades for "courage" in self-diagnosis, there is a quick round of counseling and all is forgiven. Not to say that "officers of the court" are immune to the afflictions of alcohol, drugs and mental illness, but how does the public know about the nature and validity of such claims?  And…. even with valid claims and valid treatment, who determines "fitness for (professional) duty" after treatment? Is alcoholism (according to AA) ever truly cured? What about recurrences of a major mental illness? Are public 'caveats' ever forthcoming about damaged legal professionals who may exit a remission while continuing to work?
 
At the present time, the public has the impression that the system of oversight for "officers of the court" described above is very shaky indeed. It is totally counter-culture to what Americans demand for the policing of other major professions. Its archaic privilege is increasingly questioned and increasingly difficult to justify. The numerical growth of 'pro se' litigants, who are under none of the  professional conventions to handle "officers of the court" protectively, may be the catalyst that cracks open the system, while oversight groups like the overseers struggle to hold onto conventions. Two tracks: "do it yourself" and "follow the guild". One has protective standards; one has none. One has conventions; one has none. Two systems of justice - how  does this impact justice - and the adjudicative process?


MeGAL is working to bring reform to the Guardian ad litem and Family Court systems. We do this through education and legislative process. If you would like to get involved we encourage you to contact us, your state representative or find us on Facebook.

Has Lawyers in Libraries Worked to Bring Access to Justice to Consumers?

May 11 MeGAL wrote to Justice Andrew Mead regarding the tools being used to improve access to justice within the judicial branch and the courts they are charged with managing.  The follow up email had one driving question – while a program may be well intention and yet not achieving much – what is the reason for continuing without re-evaluating the goals of the program itself.

Does the Judicial Branch understand the scope of the problem – who lacks access to justice and why? The Lawyers in Libraries program has been functioning in one form or another for a number of years. This year’s Law Day sparked the questioning of the success of this program as it relates to the consumers of judicial services. Has 10-15 minutes with a lawyer once a year brought about a drop to the numbers who are seeking access to justice.

Our reply back to Justice Andrew Mead:

From: J M Coll
Sent: Thursday, May 12, 2016 1:25 PM
To: Andrew Mead
Cc: Stephen D. Nelson Esq; SenDavid Burns; Mary Ann Lynch***; Day,Avery T; gkesich; jharrison; sdolan
Subject: Re: Fw: Access to Justice: Lawyers in Libraries?

Justice Andrew Mead

Dear Justice Mead,

When any program is well-intended but not achieving much, most people would say that taking stock or re-evaluation is in order.

I would add that it would be money well-spent for whoever is tasked with improving "access to justice", to get some outside, consultative expertise on how better to improve "access justice" with limited  manpower and financial resources. There are many sources who might suggest quality consultative entities, which could be helpful. The NCSC would be one  that is undoubtedly familiar; the US Department of Justice is another. There are any number of universities with a capability of providing consultation on goal determination and designing an intervention. What one is looking for is how to get the answer to a number of important questions:

1.) Exactly who is lacking access to justice in Maine? What are the numbers and demographics of such a population group or groups? What is the nature of their "access" problems? If one can't define the population needing "access to justice" any planned action is wasteful of resources and a blind "shot in the dark". This is an absolutely vital piece of information, if one desires to design a target intervention of any kind.

2.) There is also the matter of defining goals in measurable terms. For most interventions - with a defined population in need- a common aim is to reduce numbers of such a population over a defined period of time, say annually. The design of intervention should be defined  by how best to reach such a populations in need in a manner that is cost-effective, given time and budgetary limitations.

3.) Regular formal evaluation of effort is the 'sine qua non', the backbone of any targeted program. Is it working? Are numbers receding? What "fine tuning" might give even better results?

I firmly believe that everyone in Maine would want to support improved "access to justice". It is a foundational American belief. I'd suggest that it would not be out of place to propose legislation that would allocate money for formal consultation and program design, as mentioned above. I would personally support such legislation and work for it, and I suspect many others would too.

Sincerely,

Jerome A Collins, MD

What has the success of Lawyers in Libraries been to date? We do not know and neither does the Judicial Branch nor the Justice Action Group (JAG). While the program is well intention - it reaches such a limited segment of the population and for such a short period of time that we question the value of this program. There were a fair number of people associated with MeGAL who sought out legal help to see what Lawyers in Libraries could do. While every lawyer that they came into contact with was polite and helpful all of them lacked any experience with handling Family Courts. Many of those who went out ended up talking with the lawyers beyond the 15 minutes allotted - there was limited attendance from those seeking equal justice. All of them were seeking greater access to justice – no one felt that they received an increase to justice. The information provided in the handouts while useful – all could be found through a google search or by looking on the Judicial Branches website.

To date we have not received a response from Justice Andrew Mead or from JAG.

MeGAL is working to bring about reform to our Family Court system. We do this through educating the public and out representatives and encourage you to do the same. If you would like to become involved please contact us at MeGALalert@gmail.com or find us on Facebook.


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Related postings:
2016-05-17 Does Lawyers in Libraries work at bringing Access to Justice to those in Need?

Does Lawyers in Libraries work at bringing Access to Justice to those in Need?

Maine has a lawyer-sponsored program that has been pulled together by various groups called "Lawyers in Libraries". The idea seem to be that as a consumer you could make an appointment to sit down with a lawyer and receive legal help/ advice/ consultation/ referral. This years program had 22 libraries from across the state participate. Most had a volunteer lawyer available for two hours and appointments ranged from 10-15 minutes per scheduled client. In some cases consumers could get more time if no one showed up after your time.

This is one way that lawyers and Maine's courts are trying (Claiming?) to bring Access to Justice to those who need it. In Maine it is estimated that over 113,000 in 2015 had issues with accessing justice of which 17,065 are in Family Courts alone. It is a huge task to bring these people the tools they need to have a fair and equitable "access to justice".

Lawyers in Libraries (L in L) has been promoted for several years now and we wanted to know how effective the program has been with reducing the numbers of unservered populations and bringing access to justice to those in need. We wrote to Justice Andrew Mead the following:



From: J M Coll
Sent: May 11, 2016 9:39 AM
To: Justice Andrew Mead , "Stephen D. Nelson Esq" , SenDavid Burns
Cc: Mary Ann Lynch*** , Avery.T.Day, gkesich, jharrison, sdolan
Subject: Fw: Access to Justice: Lawyers in Libraries?

Justice Andrew Mead
Maine Judicial Branch
Justice Access Group

Dear Justice Mead,

We've been watching with interest last weeks unfolding of the "Lawyers in Libraries" program.

It  has been touted in some quarters as a component of a larger "access to justice" strategy that aims to address the large numbers of Mainers who are excluded from "access", because they go to court 'pro se', or on their own. Our team of observers have looked at the Maine program and have pooled their observational data about six such "L in L" programs in Maine libraries this past week. With all due respect, we have to conclude that the Maine program in its present form, in our view does virtually nothing to improve Maine citizens' "access justice". The "L in L" program is extremely unlikely to lower this state's statistics of those who lack legal support for "access to justice". Let us be more specific in our observations:

1.) The program goals are unclear. Is the program's aim to polish the professional image of Maine lawyers as nice people with a charm "offensive" in a community setting? Does it aim to provide service to unserved populations of Mainers and thereby to reduce 'pro se' statistics? Does it aim to market private legal services to the public and improve the private practices of lawyers who might not yet have a "full practice"? It is hard to measure success or failure quantitatively without specified goals.

2.) The present "lawyers in libraries" program is not a population-oriented approach, which would define the demographics of Maine's underserved populations, target them and aim a intervention, or a series of interventions, at recruiting them for appropriate legal service. The goal would be reducing incidence and prevalence of the problem in the target population. A 'pro se' population in family courts who are 75% 'pro se' (17,065 people in 2015), would be one good example of a legally unserved population. Were one truly wishing to reach this population, one would need to define it demographically, decide where (which locales) best to make contact and how best "to speak" to such a population. One might use a targeted marketing campaign, such as is very common today in many large businesses which want to reach unserved new markets.

3.) From our examination of "lawyers in libraries" in several towns across Maine, we observe that "volunteer" lawyers do not appear in many town libraries. The "L in L" lawyer volunteers (out of 3,100 Maine Bar members) are few in number ,and there is a limited donation of time. In several libraries there is only one lawyer for 2 hours at the end of one day. For example one Maine city of 21.000 population had one 2 hour session scheduled from 5:30 - 7:30 pm for the entire week, a fairly frugal, lawyerly service donation. We have to ask,what miracles of law are accomplished in 10 - 15 minute appointments, over 2 hours, with even the most skilled lawyer or the most fast talking client? Typically volunteer lawyers spoke briefly at the start of the scheduled time, and there are handouts of "legal resources" which list free and low cost services, such as are posted on the Maine Judicial Branch web site. Public attendance in some instances was a total of 3 people, but notices, advertising this program, in several instances, seemed to be last minute postings in the newspapers or the paper's online version. The volunteer lawyers seemed pleasant enough, but because of their areas of special practice, were often less informed in other legal issues beyond their practice interests. They could only explain and provided very general information but avoided any direct legal advice. For those Maine libraries with no program, we wonder why? Is it because of lack of interest on the part of the majority of the 3,100 Bar members? Is it due to negative feeling on the part of Bar members about the value of the program? How is "access to justice" improved by the "L in L" program? Most importantly, does this effort have any impact on the statistics?

4.) We have to say that the "L in L" program does no harm, but we'd ask, does it do any good for the public who seek access? In our opinion, this program has serious problems of focus and design. If it desires to reduce the huge statistical problem of "lack of access to justice", it is embarrassingly inadequate and superficial. To learn from this past week's experience, do any of the program's sponsors plan a post-program evaluation? Besides our assessment, does the "access to justice" committee intend to do any form of program assessment? We suggest, based on our observations, that you need either to re-design this program top to bottom, or scrap it  With regret, we have to say, as the "L in L" program stands at the moment, it does nothing that we can see to improve badly needed "access to justice" in Maine.

Mainers are still waiting for "access to justice".

    Sincerely,

    Jerome A Collins


Within about 30 minutes Justice Andrew Mead replied back:



From: Andrew Mead
Sent: May 11, 2016 10:13 AM
To: J & M Coll
Cc: "Stephen D. Nelson Esq" , SenDavid Burns , Mary Ann Lynch*** , "Day, Avery T" , gkesich, jharrison, sdolan
Subject: Re: Fw: Access to Justice: Lawyers in Libraries?

Dr. Collins -

Thank you for your note. I will pass your comments along to the New Lawyers Section of the Maine State Bar Association. The New Lawyers Section has taken over the administration of the program.

My original vision for the program was to have volunteer lawyers available on a given day--perhaps the first of each month--at every public library in the state. The lawyers would be available to give generalized advice and refer folks to legal services organizations and private lawyers as appropriate. The program would be directed at individuals in the poverty and modest means economic categories, but no one would be turned away from the sessions. The overarching goal is to connect more people with legal representation.

Unfortunately the scope of such a program renders it administratively unfeasible without the creation of a fully staffed organization to run it. Accordingly, the current program, limited in scope as it must be, continues to evolve as a pilot program. The biggest challenge is getting the word out. Most folks who would benefit from speaking with a lawyer simply don't know that lawyers are available to meet with them in some libraries on Law Day.

It is my hope that the program will continue to gain traction as public awareness grows. The lawyers and the libraries continue to be committed to it. I agree that the current Lawyers in Libraries program is a very small initiative in contrast to the enormous need, but we need to pursue every possible avenue to improve access to justice. For the individuals who did connect with legal services as a result of the Lawyers in Libraries, the program was a success for them.

It is my hope that the New Lawyers Section will continue this initiative (which it undertook only very recently) and grow it to the point where public knows that libraries can be the crucial link between folks who need legal representation and the lawyers who can serve them.

Thank you for your continuing interest in access to justice issues.

A. Mead



Lawyers in Libraries was developed as a result of the "Khoury Report" which was commissioned by the Justice Action League (JAG). As part of the recommendations Lawyers would volunteer once a year on Law Day in libraries to offer legal service and in certain circumstances legal advice. This was part of a plan to bring access to justice to a growing number of consumers who were in desperate need of legal help and guidance.

It is not known how effective the Law Day - Lawyers in Libraries is. Simple math shows that for 2015 an estimated 900-1000 could be helped for the time allotment of 15 minutes per client. Is 15 minutes once a year enough time to help consumers who need greater access to justice? Or is this a way for lawyers to find new clients who need legal representation?

MeGAL is working for Family Court reform. In 2015 there were 17,065 people in Family Court who struggled with access to justice. Who for what ever reason could not afford to hire a lawyer or keep one through to the end of their case. If you have had issues with Access 2 Justice (A2J) we encourage you to contact your representatives to let them know. You should also get involved with change and can start by contacting us at MeGALalert@gmail.com or finding us on Facebook.

Will Parents (Pro se) Be Given the Same Educational Experiences as Lawyers - We Asked

We have sent several letters to the Judicial Branch regarding the course which was being offered by the York County and Maine Bar to its members. We asked whether or not the Judicial Branch had any plans to give the same type of educational experience to parents ( especially those who are Pro se ) as they would benefit from the wisdom of lawyers, Guardians ad litem and judges who spoke on April 29, 2016.

The Judicial Branch's response follows. Please keep in mind that this is an un-edited version:























The non-response from the Judicial Branch is in itself a response to the concerns that parents - especially those which are Pro se - continue to be discriminated by various forms of legal entities. That we do not deserve the same knowledge as lawyers, Guardians ad litem and Judges.

In 2015 there were an estimated 17,065 parties who found themselves in Family Court as a Pro se lawyer/ litigant. It would be safe to say that almost all of these people would benefit from the same kind of guidance and education that the privileged lawyers and Guardians ad litem received during the educational session. To be able to learn from judges what you need to do to win your case would have been worth the time.

We encourage you to educate our representatives with the experiences you have had in Family Court. A dysfunctional, adversarial system that has in practice no checks and balances. If you would like to become involved or have a story to tell please contact us at MeGALalert@gmail.com or find us on Facebook.

Judicial Branch is Silent on The New World of GALs for Pro se

Several weeks ago when we learned about an educational experience being offered by the York Bar to its members concerning the new landscape of Guardians ad litem. We asked the Judicial Branch whether a similar experience was going to be offered to those parents who might find themselves in court Pro se. These parents we felt deserved the same kind of knowledge as lawyers - maybe even more so.

Three weeks later and we have still no response from the Judicial Branch - prompting us to send one last piece of correspondence on the matter. This was sent on April 25, 2016:



Mary Ann Lynch, Esq
Maine Judicial Branch

Dear Ms Lynch,

Three weeks ago I wrote you to ask if the Maine Judicial Branch had plans to educate 'pro se' litigants in Maine family courts about "The New World of GALs"? The Maine Bar is providing lawyers with a course of instruction on the new dimensions of this topic on Friday, April 29th. Three Maine judges are listed as participating in this educational offering for lawyers.

It seemed to many people with whom I've spoken that fair play would suggest that the 'pro se' majority (75%- 17,065 people) in family court need educational enlightenment on this matter as well. They are already at a significant disadvantage in court as non-lawyers. Absent education about GALs will further stack the deck against them in family court.

Does the Judicial Branch have any plans to address the educational disparity on the topic of GALs for 'pro se' litigants?

If you prefer not to reply to my query directly, would you consider offering enlightenment to the public on this topic via the Portland Press Herald or Bangor Daily News? It is an important dimension of "access to justice for all".

Sincerely,

Jerome A Collins.
Kennebunkport,Maine


If we receive a response it will be published. It is our feeling though that the Judicial Branch will remain silent. That silence is deafening and speaks volumes as to the very problems we as parents face in court.

MeGAL through education is bringing about reform in our dysfunctional Family Courts. If you are a parent who has had a trying experience in court we encourage you to become involved. You can start by contacting us at MeGALalert@gmail.com or finding us on Facebook.

MeGAL's response to the Judicial Branch on DOJ Letter Concerning Illegal Enforcement of Fines and Fees

The final salvo in the exchange between MeGAL and the Judicial Branch. After this we have not heard back from the Judicial Branch.

From: J M Coll
Sent: Mar 22, 2016 10:38 AM
To: "Mary.Ann Lynch"
Cc: Justice Andrew Mead , "Stephen D. Nelson Esq" , "Avery Day Esq." , Hank Fenton , Sen Burns , Beth Ashcroft , Barry Hobbins
Subject: Re: DOJ letter to State Judges re practices that run afoul of the US Constitution: 3-14-16

Mary Ann Lynch, Esq
Government and Media Counsel

Dear Ms Lynch,

Thanks for your prompt reply to my query about Maine courts' standing with regard to "practices which run afoul of the US Constitution", noted in the US  DOJ letter of 3-14-16. I respect your professional belief that the DOJ letter was intended for all 49 US court systems - other than Maine's, which they did not included. I admire your loyalty to Maine, and your heartfelt belief that "Maine Courts are the way courts should be", to paraphrase a popular marketing slogan for Maine.

You and I had this conversation before, last Spring on the editorial pages of the Portland Press Herald. Your statement of rather similar beliefs was on the PPH editorial page on April 3, 2015; my reply was in a letter to the editor, dated April 16th, 2015, which I include herewith. The public comments that follow the letter are worth reading as well, as they express sentiments contrary to those you are expressing.

2015-04-16 Letter to the editor: More assurances on Maine’s court fees would be welcome    

And once again, I would have to differ with you in public. The DOJ letter expresses concern about the social problems caused by abuse and impoverishment of people who use US courts (excluding Maine you might  claim), as a result of fines and imprisonments that "run afoul of the US Constitution". The letter is about courts which are causing public harm and the 7 points discussed in the letter have applications that can readily be applied to many cases that we know personally, and, yes, here in Maine.

Further, I would ask you, "How do you know that Maine courts are 'off topic' for the DOJ letter - that Maine's courts are not at all what they had in mind when they sent it to all 50  states?" Is there a DOJ certificate that excepts Maine from the intent of the letter? What is your data for your claims of near  perfection?  Have you a window on those Maine courts or a video camera that allows you to bear witness to what actually goes on inside family courts? We do have witnesses to what goes on - lots of them.  And there are recordings. But rather than debate our "truth" versus yours, I would ask, why has there been such strong opposition from the Judicial Branch (and allies) to allowing an evaluation, a legislative  audit or an  OPEGA study of even selected  courts? or a systemic evaluation by out of state experts, or even a simple, inexpensive  "consumer satisfaction survey"? The opposition to notions of any objective assessment is resounding every time we raise the issue. The need for "evaluation tools" is not about "mean-spiritedness" to the Judicial Branch; these, after all, are the universal tools of modern management all over the world. The defensive protection of courts from data-based oversight by you and others appears intellectually dishonest (no court system is "perfect", not even in Maine) and it implies that the public oversight has no role in seeking relief and improvement.

Your remarks about the DOJ letter and your position that Maine is excluded from their concerns, challenge us to approach the DOJ people who wrote the letter and ask them directly, is Maine excluded from their concerns? We'd be pleased to give them some brutal Maine cases and see how the DOJ evaluates their Constitutional cleanliness.

Yours for improving even alleged "perfection".

Jerome A Collins, MD

Kennebunkport, Maine

MeGAL is working for reform of the States Family Court and court vendors through education and legislative action. We encourage you to become involved in the process. To do so please contact us at MeGALalert@gmail.com or find us on Facebook.

Previous emails:
2016-03-27 Reply from Maine's Judicial Branch on DOJ Letter Concerning Illegal Enforcement of Fines and Fees 
2016-03-27 To Maine's Judicial Branch on DOJ Letter Concerning Illegal Enforcement of Fines and Fees

Reply from Maine's Judicial Branch on DOJ Letter Concerning Illegal Enforcement of Fines and Fees

On March 20, 2016 we queried the Judicial Branch on whether or not they were aware of a recent letter published by the Department of Justice.The Judicial Branch responded a day later that they know but - the issues brought forth in the letter did not apply to Maine.

From: "Mary.Ann Lynch"
Sent: Mar 21, 2016 2:52 PM
To: J & M Coll
Cc: Justice Andrew Mead , "Stephen D. Nelson Esq" , "Avery Day Esq." , Hank Fenton , Sen Burns , Beth Ashcroft , Barry Hobbins
Subject: Re: DOJ letter to State Judges re practices that run afoul of the US Constitution: 3-14-16

Dear Dr. Collins:

This is to acknowledge receipt of your letter regarding the recent U. S. Department of Justice March 14, 2016 letter. 

First, an identical letter went to all 50 state courts.  These letters were sent without regard to the state of the law in the individual states.  As a result the public has been seriously misled at least with respect to the law and  fine default procedures in Maine.  

Maine is not among the states or court systems that jail defendants for the non payment of a court fine.  In Maine, a person will only end up in jail if:

1) they are seriously in arrears on fine payment AND they have disobeyed or ignored a court order to come to court and explain why they are in default under 17-A, Section 1304; or
2) The court finds that they have the ability to pay, and intentionally and knowingly refused to pay, otherwise known as an "unexcused default."
An unexcused default finding can only be made after a hearing in court under Section 1304. 

I cannot tell you how much time Maine judges spend working with defendants who are in default of their criminal penalties. The time and resources spent working with defendants on their fines is considerable.  The courts will order payment plans as low as $10/month, and permit community service, where appropriate,  in lieu of fines. 

Frankly, Maine judges are diligent in carrying out the laws enacted by the legislature, which sometimes include minimum mandatory fines that some defendants will have great difficulty ever paying. (Try paying a $1000.00 fine plus surcharges, if you are living on a disability or SSI income of  $800/month.)  The judges use as much discretion as they are allowed by law to work with defendants to come up with individualized payment plans, and still maintain respect for the law. 

It is discouraging to see the US Department of Justice paint all courts with the same broad brush that they have painted Ferguson,  Missouri. One would hope that federal officials would research the facts first, before aiming a broad missive at courts which are working hard to uphold the law.


Mary Ann Lynch, Esq.
Government and Media Counsel
Administrative Office of the Courts
Maine Judicial branch
P.O. Box 4820
Portland, ME 04112

"The administration of justice is the firmest pillar of government" -  George Washington


It should be noted that "unexcused default" seems to be a term only related to the State of Maine. When a search for what a legal definition of the term was done all we could find was related either to the purchase and sale of an item or Title 17.

With the first paragraph after the two line items we are told that the courts take great pains to work with consumers of Justice. While this may be true it has been witnessed just the opposite. We have numerous stories from people which contradict what the Judicial Branch are telling us.

MeGAL is a grass roots group working to educate and promote legislation to reform Family Court and Guardians ad litem (court vendors). You may get involved by emailing us at MeGALalert@gmail.com or find us on Facebook.


2016-03-27 To Maine's Judicial Branch on DOJ Letter Concerning Illegal Enforcement of Fines and Fees

To Maine's Judicial Branch on DOJ Letter Concerning Illegal Enforcement of Fines and Fees

In Family Courts parents are often faced with paying crushing fees for court vendors (Guardians ad litem) and lawyers or face jail time. The Department of Justice has indicated that this practice must stop in all courts as it infringes on the rights of citizens of this country and consumers of judicial services. We present here the first in a series of email exchanges between MeGAL and the Judicial Branch about this topic.

From: J M Coll
Sent: Mar 20, 2016 1:37 PM
To: Mary Ann Lynch*** , Justice Andrew Mead
Cc: "Stephen D. Nelson Esq" , "Avery Day Esq." , Hank Fenton , Sen Burns , Beth Ashcroft
Subject: DOJ letter to State Judges re practices that run afoul of the US Constitution: 3-14-16

Mary Ann Lynch Esq
Maine Judicial Branch

Dear Ms Lynch,

I am in receipt of an important letter from the US Department of Justice, Civil Rights Division, Office of Access to Justice, dated March 14, 2016. It is signed by Vanita Gupta, Principal Deputy Assistant Attorney General, Civil Rights Division and Lisa Foster, Director Office of Access to Justice. The letter is addressed to those responsible for the assessment and enforcement of fines in state and local courts. Its stated aim is to address common practices that run afoul of the United States Constitution due to illegal enforcement of fines and fees in certain jurisdictions, and it speaks to the harm caused defendants by these practices.  Can you confirm that the Maine Judicial Branch has received this letter and is prepared  to act on its specifics.

It is a lengthy letter- and fairly detailed; however, here are a few of the specific issues in very skeletal form:

1.) Courts must not incarcerate persons for nonpayment of fines without first conducting an indigence determination.

2.) Courts must consider alternatives to incarceration for indigent defendants unable to pay fines or fees.

3.) Courts must not condition "access to judicial hearings" on prepayment of fines or fees.

4.) Courts must provide meaningful notice and, in appropriate cases, counsel she enforcing fines and fees.

5.) Courts must not use arrest warrants and license suspensions as a means of coercing payment of court debt when individuals have not been provided constitutionally adequate procedural protection.

6.) Courts must not employ bail or bond practices that cause indigent defendants to remain incarcerated solely because they cannot afford to pay for their release.

7.) Courts must safeguard against unconstitutional practices by court staff and private contractors.

I am including a pdf  link that connects to the original letter from DOJ.

I would add that, in my opinion, the letter needs widespread circulation as a matter of professional and public education.  It also seems to call for immediate action to amend practices, which "run afoul of the US Constitution".

When- may we expect implementation of this DOJ call for "corrective action" from Maine's Judicial Branch?

Sincerely,

Jerome A Collins, MD

Kennebunkport, Maine

MeGAL is working for the reform of our dysfunctional Family Court system and the vendors (GALs) which are used. We do this through education and legislation actions and encourage you to get involved with this process. You can start by contacting us at MeGALalert@gmail.com or by finding us on Facebook.

Part 3 - THE DICE ARE LOADED: A CONSUMER'S PERSPECTIVE

20.  INADEQUATE SERVING INSTRUCTIONS/EXPLANATIONS FOR 'PRO SE' "USERS": Although the 'pro se' litigants are a 75% majority (17,000 people in 2015, they are not accommodated by the courts even on small matters like serving court papers. No one explains that a registered letter receipt requested, doesn't have to be signed - even when served to a court official. No one explains that a sheriff-served paper, although expensive, is the only sure way. There is also a lack of clarity about court fees. As of this writing, it is not clear whether expensive court fees have to be re-paid for a new attempt after failed service. There is also the matter of "grumpy" clerical officials, who are grudging in providing information to majority 'pro se' users, while more obliging to "frequent flyer" local lawyers, who know the ropes. It is a small but significant, symbolic example of a failure by the court system at even its lowest level to recognize the "new normal" of majority 'pro se' litigants.

For a list of issues as we see them with our Family Courts read [PART1] and [PART2]. Family Courts and the vendors (GALs and court experts) who work within do so in a broken system. To change this system we encourage you to contact your representatives and let them know of the troubles you have experienced. Let them know that there are over 17,000 others.

Part 1 - THE DICE ARE LOADED: A CONSUMER'S PERSPECTIVE

As members of the "divorce bar" are fond of saying when divorce and custody judgements are questioned by a "consumer", "Somebody has to win, and somebody has to lose." To which we would ask: "…but what if the dice are loaded?" Winning and losing a parent are very sad decisions to give a child, who needs both parents. Should divorce be played by the divorce bar as a "zero sum" courtroom gamble over children? In the "win or lose" dynamic are children well served, or is it a "championship game" for the divorce bar? Who gets the gold medal? Certainly not the children. Isn't the adversarial model inappropriate in a divorce where children are involved? What is "justice" for such children? What is justice for the parent who loses? Why does the bar never push for reform of this barbaric "win or lose" mode?

Herewith are a few topic headings viewed from a consumer's perspective that are about "broken family court structures" that load the dice against many who use family courts and in favor of those with expertise in "gaming" these courts. Individual divorce and custody cases get ground up for hamburger meat in this game. Our topic list aims to describe the broken family court "grinder". These structural topics (when filled in with cases) ought to explain the need for a legislative audit of family courts or "investigative reporting" by a courageous newspaper. Or both.

1. OUT OF DATE MANAGEMENT: There is no higher level management of the judges, GALs and lawyers who populate family courts, and there no systemic data for a manager to work with for "big picture" oversight of the family court  system. This information lack hides patterns of hard, recurrent data about courts/judges/lawyer/GALs who may present consistent problems to the public. It hides judge/lawyer relationships, and judge/lawyer patterns of outcomes that might suggest coziness, it hides averages for court time for divorce trials (billable hours) and masks  the practices of lawyers who might be considered "frequent flyers" or "contention profiteers".   

2. BROKEN: "Corrective Mechanisms" that don't correct. Protocols for complaints about GALs, lawyer, Judges and appeals challenge the 'pro se' complainant in the extreme.  These take hours to put together, they then go through screening procedures that "screen out" complaints said to be unworthy. But even after screening out "bad" complaints, few actual complaints yield "corrective action" of any kind. How to interpret this? A sign of perfection, or protection? Look at the micro (or non-existent)  numbers of corrective actions in each of these categories. There is also the awkward question: how does one correct a bad Supreme Court decision - or do they never make a bad decision? Guess not.  Get over it!

3. NO REAL MANAGERIAL OVERSIGHT: Oversight, such as it may be, relies entirely on non-lawyer "consumers'" cobbling together a quasi legal complaint and defending it; not professional surveillance of professionals by management. The only way those higher in the Judicial Branch know there is a problem is as a result of a successful complaint from the public. Almost no complaints filter through the various tight screens. Higher ups remain in blissful ignorance of malfunctioning. There is no modern management of defective functioning in this system. Bad practices can fly under the radar and continue to malpractice.   

4. OPACITY OF REGULATORY DEVELOPMENT: Regulations for the family court judicial system are developed "in the closet" of the Judicial Center behind closed doors with no public observation. Unlike legislative deliberative sessions and hearings,there is no transparency of the deliberative process- or of who deliberates (same old, same old committee members?). Why this "opacity"? Secrecy in deliberations will tend to promote 'status quo' conservatism, legal protectionism, rampant legal self-interest and nothing really changes. This is not in the public interest and hard to justify. Regulation development is treated like "top secret" activities.

5. DEFECTIVE VETTING OF JUDGES FOR APPOINTMENT/RE-APPOINTMENT: Every step in this process is opaque and leaves out the public, until near the ceremonial end. It is largely a popularity contest for political elements of the bar. Is a judge liked by small segments of the bar, who work at this task? Why is there no standard, formal testing and grading of a judge's knowledge of the law, knowledge of new laws, new regulations? The legislative reviews are an act of faith, rubber-stamping the bar committee's, (as is the Governor's). They simply sign-off on the bar's "judge- friendly vetting" decisions. The public would be better served if judges were obliged to take a certifying/re-certifying exam that tested their knowledge of the law and regulation, with results made public.  Otherwise, how do we know, how does the legislature know, how does the governor know? In plain English, they don't.

6. ABSENT PROFESSIONAL DISTANCE: The judiciary promotes friendly bench/bar relations,  But how friendly? Cozy lawyer/judge relationships are suggested by certain lawyers always scoring a win with certain judges in family courts. There are reports we hear of local bar members ganging up on a judge who dares to disfavor the more political members. Re-appointment is not in their "interest". There is a need for open statistical data That would show judges, lawyers, outcomes. A legislative audit would sample a few courts where anecdotal data suggest high frequency Judge/lawyer results.

7. INTIMIDATION: Intimidation of lawyers who fight too hard for their clients. A common client observation: "My lawyer is a lion in the office, but acts like a mouse in front of the Judge." Why? Lawyers who advocate too strongly for a client learn to beware of 'sua sponte' complaints of unprofessional behavior or claims of "contempt" (shown by brusqueness?). Maybe you don't fit in family law?  What about a career in bill collecting? What is contempt of court and how does it play-out when a judge is contemptible by any normal standards?   

8. ABUSE OF ABUSE ALLEGATIONS: The child abuse conundrum Lawyers' claims of abuse vs Children's Protective. Claims of child/spousal/other abuse are extremely common in divorce and custody cases, and such claims are used for "winning" decisions and money and generating billable hours. Referrals of abuse claims to Children's Protective are not favored.  They stop billable hours for the divorce bar. Follow the money. The billable hours stop when a referral is made to CP. The preference is to use "court consultants", who are "frequent flyers" with certain judges and certain lawyers.

9. ABSENT ACCESS TO JUSTICE: The 75% access to Justice failure is the core situation that is transforming Family Courts into a broken, unpredictable system in which self-representing people struggle for justice. This is approximately 17,062 people for 2015, using Judicial Branch numbers to calculate 75% of the total. It is the population of 'pro se' users, a "time bomb" that will in the end destroy family courts - with or without reform. 'Pro se' numerical dominance is "the new normal" for family courts, which are struggling to maintain "an old normal" in which lawyers were the interface for the pubic with justice. No more. Judges are at a loss about managing the 75% majority of self-representing litigants. Self-representing parties are just plain lost. It cries for answers. The absence of the old structure leads judges to perform in more high-handed, totalitarian, arbitrary ways and leads to huge problems of badly crafted outcomes. It cries for in-depth study.

MeGAL is working to bring about Guardian ad litem and Family Court reform. There are additional points to "The Dice Are Loaded" which may be found [HERE]. We encourage you to become involved and can do so by contacting us at MeGALalert@gmail.com as well as your state representative. 

Part 2 - THE DICE ARE LOADED: A CONSUMER'S PERSPECTIVE

Part two of the Dice are Loaded

10. WHY NO MANDATORY SERVICE FOR A LAW LICENSE: A tax supported state law school trains students for private practice of law. Students select cases in the law clinic on the basis of what interests them, not randomly or first come, first served. The clinic's clients must be at the dire poverty level (food stamps or equivalent) so as to avoid taking even a minimally paying client from the private divorce bar. Clinic clients, however, are getting quasi amateur services. For all of the public tax support (physical plant, teachers and support staff salaries) there is no public pay back in terms of mandatory public service. Why no obligatory service for students, or for members of the bar? Training for the new normal 'pro se' court lacks a syllabus because the reality of new normal hasn't been recognized. The same might be said of the judge's role training for a 'pro se' court. What is it? May we see a book of instructions, if there is one?

11. JUDICIAL DISCRETION ON STEROIDS: Judicial Discretion in family courts seems to be a creative act, badly in need of clear, consistent boundaries. We are told by legislators, "We make the law, the judiciary re-writes the law 'de facto' using judicial discretion in decisions". Individual judges use rampant discretion in court which the higher ups are unaware of, unless there is a successful formal public complaint. Oversight only exists as the result of a complaint pursued by a consumer, often without a lawyer and with no legal background. 

12. FREE LEGAL SERVICES - PAUPERS ONLY, PLEASE: A basic principle for free legal service seems to be that free legal service mustn't compete with the financial interests of the bar. Only food stamps qualifies, please. There are many not on food stamps who cannot receive 'pro bono' or other services because they haven't utterly exhausted every last penny of their own and their family's financial resources, sold their homes, emptied retirement and college plans and pauperized themselves. Like the rest of the legal system, eligibility criteria for low cost services are not well-publicized and are a near secret. The message to the public seems aimed at discouraging users, if possible. Don't want to take paying customers - even poor ones - from the divorce bar's billable hours.  This is a part of the reason why a committee of the legal profession's attention to the growing 'pro se population' doesn't move off of the dime.

13. KEEPING THE PRESS UNDER WRAPS: Freedom of the press gets tweaked by lawyer-lobby.  6000 lawyers don't like court reform essays, articles, opinions. 'Ex officio' we have been told that editors receive lawyer comment on contributions critical of the family courts, with un-rebutted, self-serving, predictable answers. Consumers may not quote the law impeccably, but they know when practices violate common sense and "legally correct" may not be justice. They know from experience when corrective mechanisms work and when they don't. There is also a political aspect that frequently comes into play.

14. MONEY MACHINE FUELS DYSFUNCTIONAL CONTENTION: The lawyers easy money machine is called divorce and custody. For it to pay maximally it necessitates a keep 'em fighting 'modus operandi". The "contentious divorce" is "Champagne and caviar" for the divorce bar. It is about endless, gorgeous, billable hours, consultants, GALs, Kids First.  BUCKS. The divorce bar blames clients for contentiousness, but it is their "coaching" of clients that cranks them up, eggs them on for continued fighting. I know we can win!  Are you going to let him/her get away with that? It is about billable hours. The contentious divorce ends when the client runs out of money and the lawyer loses interest.

15. SELF-POLICING, A NON-STARTER: Self-policing by the family court legal profession (a formal complaint from another lawyer) is rare among practitioners in the same courts, who are members of the local bar. Don't mess with your buddies. It is less rare when an outsider enters the game and horns in on turf. Lawyers may whisper and mutter under their breath about judges and bad judgements, but don't issue complaints, unless their interests suffer. They know the legal facts; they also know the "facts of life".  

16. EX OFICIO POWER: Want to win your case? Go to the "Godfather". He's expensive, but he has fingers in every pie with power and influence to spare. Certain lawyers play a huge political role in the family court system and get amazing results.

17. THE SWAMP INHABITED BY CONSULTANTS: Court psychological consultants are a piece of work! Often selected because they "deliver" for certain lawyers and judges on whose referrals they depend. Why do courts use the same old, same old and not contract with recognized quality consultants from, say, Maine Medical Center, the Mass General, etc?  It seems to be about control and "predictable" results. Why do the same consultants seem to get recommended again and again by the same lawyers and judges? Too bad, no statistics!   

18. GOLDFISH BOWL THERAPY: Court mandated counseling in which the details are shared with opposing counsel (not confidential) is professionally indefensible. It can never be therapy. When it occurs it is shameful judicial act, public mind rape and a travesty of any accepted therapy. It should be outlawed.

19. RECONCILIATION IS RARE AS A STATED GOAL: Reconciliation between allegedly abusive parents and child is very infrequently  a formal, written goal in family courts once a judgement is made; it is almost always a part of the plan in human services, Children's Protective cases. Why the difference in not requiring  a plan for reconciliation in every case? We'd say one word: Bucks! Keep the motions (bucks) for reconciliation coming in family courts. Don't reconcile till they run out of money.

Hi, stranger, care to gamble the custody of your child in this broken system? Who complains about this sad zero sum game that cheats parents and children? Is this war necessary? Does it do anyone any good? Have the courts, the Judicial Branch, the bar ever studied the impact of this barbarism on child development? Any simple evaluative studies, such as those done in every industry and profession? One court official opined that they are "tacky". Those who advocate change  are called, "Whiners. Bad sports! Radicals who want to destroy our fine legal system!"  

Every one of the items on our list has cases to back it. The structural problems we note do not come out of thin air. They cry for a legislative audit or courageous investigative reporting. Just ask. We can tell you case by case "where the bodies are buried."


MeGAL is working to bring about Guardian ad litem and Family Court reform. There are additional points to "The Dice Are Loaded" which may be found [HERE]. We encourage you to become involved and can do so by contacting us at MeGALalert@gmail.com as well as your state representative. 

The following have been added to the growing list (updated 02/23/2016):

20.  INADEQUATE SERVING INSTRUCTIONS/EXPLANATIONS FOR 'PRO SE' "USERS": Although the 'pro se' litigants are a 75% majority (17,000 people in 2015, they are not accommodated by the courts even on small matters like serving court papers. No one explains that a registered letter receipt requested, doesn't have to be signed - even when served to a court official. No one explains that a sheriff-served paper, although expensive, is the only sure way. There is also a lack of clarity about court fees. As of this writing, it is not clear whether expensive court fees have to be re-paid for a new attempt after failed service. There is also the matter of "grumpy" clerical officials, who are grudging in providing information to majority 'pro se' users, while more obliging to "frequent flyer" local lawyers, who know the ropes. It is a small but significant, symbolic example of a failure by the court system at even its lowest level to recognize the "new normal" of majority 'pro se' litigants.

Please, Give Us, "Access to Justice"!

This week the Maine Bar is hosting their annual meeting. This year the Bar is promoting the idea of Access To Justice (A2J). Their idea of what Access To Justice is different than what we would consider a consumers Access To Justice. Presented here is our letter to the Maine Bar regarding this very sensitive issue of Justice and how consumers are able to access this service:

Stephen D Nelson, Esq.

President

Maine Bar Association

Dear Mr Nelson:

Many members of the public are pleased to learn that the Maine Bar Association has chosen as this year's convention theme, "Access to Justice".  We hope that this uplifting theme inspires your membership to address the growing "Access To Justice" problem of self-representation in Maine courts.  In family courts, the statistic that 75% are 'pro se' means that the 'pro se' litigants outnumber lawyers by a wide margin, and family courts ought to be renamed, 'pro se' courts. The "new normal" in these courts is 'pro se'. Though 'pro se' litigants are the majority in family courts, one would never know it from the power dynamics as attempts to preserve the old ways prevail. And 'pro se' litigants receive 2nd class services (or worse).

I present the following extracts from actual cases for illustrative purposes. They are intended as examples that illustrate the human aspect of "Access To Justice". With a 75% statistic, there are literally hundreds of additional "access to justice" human problems. It needs action from the bar, unless the bar is to limit its legal practice in family courts to those with access to "money". No money, no service - except for limited 'pro bono' charity, which, though worthwhile, doesn't seem to reduce the 75% numbers.

Herewith samples that put a human dimension on the 'pro se'  problems:

1.)  Access to Justice: for many 'pro se' this means inaccessibility of access to 'pro bono"? A case example: one of many.

On several occasions, I sought out legal services that were pro bono, or 'a la carte,' or, in one instance, an hour consult to prepare for a 'pro se' two hour trial in which both myself and my former husband were to be 'pro se', I was told by attorney after attorney that neither pro bono, nor  "a la carte" was an option (not even a FREE one hour consultation).

One highly regarded law office was so bold as to point blank state, Attorney ******* will not meet with you because it would not be "cost effective for her". Cost effective?

2.)  Does "Access To Justice" have to mean bankrupting  clients?

"Once a post-judgement plaintiff and / or defendant has spent every last bit of savings - including all retirement funds- and has liquidated all material assets (as in my case: a home that was once the primary home for our two minor children, all home furnishings, etc....), there will no longer be "access to justice"?

3.)  Does Judicial Role Distortion in 'pro se' cases mean "access to justice"?  Or does judicial improvisation signal the collapse of courts as we have known them?

"In our last trial - as both parties were  'pro se' - the judge did all the questioning. I was unable to cross examine. The defendant told untruths and because the judge did not know the truth from Adam, he had no idea when to challenge a response from the defendant. If I had an attorney, I would have been allowed to challenge the untruths.

A few times I objected and attempted to shed light on what was spoken as truths as being untrue BUT I was not given the benefit to explain the "objections" without presenting as "difficult". Being 'pro se' and without being able to counter defendants claims - there was no access to justice on that day in court. In our first trial - with an attorney present on both sides - "no hear-say was permitted in court."

4.)  Attorney intimidation limits access to justice even for clients who can pay for a lawyer.

'Sua sponte' disciplinary complaints to the Overseers, if an attorney provides too robust a defense, is another factor limiting a client's "Access To Justice". Even those family court defendants who can afford a lawyer may find that their lawyer is intimidated by threats of sanction if a defense is perceived as too robust. In a family court system that is 75% 'pro se', an over-scrupulous concern about how things get done, seems misplaced.  What indeed are the legal standards for a 'pro se' court? Are there any? Selective scrupulosity, using "old normal", standard tools in a "new normal" situation seriously limits "Access To Justice" for clients who can pay, and, looks like a variant of the approach used to control lawyers in Boston in the heyday of the Catholic Church scandals.

Our proposal to the Maine Bar:

We would propose that the Maine state bar seek a legislative mandate to take immediate legal representation responsibility for all 'pro se' litigants in all civil courts, such as the 75% 'pro se' litigants, and that the bar make an equal, fair division of all 'pro se' litigants, to be allocated amongst all licensed bar members, as a condition of receiving a license to practice law in Maine. It would solve the 'pro se'  problem pronto (and the human hardship therein), while research goes on. Alternatively, the bar might decide to turn family courts entirely over to the 75% 'pro se', and establish a separate court for the wealthy, full paying parties.  It is rapidly reaching that point of inflection anyway.

Yours for seeking solutions to 'pro se' "outside of the box"!

MeGAL has been working for Guardian ad litem and court reform. Access to Justice (A2J) is another part of the problem with our Courts where over 50% of the population who consume judicial services are doing so on their own. The Maine Bar Association is having their annual meeting and the theme for this year is Access to Justice. Or is it? If you have had issues with the courts, as a Pro se litigant, represented by a lawyer who fears the courts - we ask that you contact us with your story. We can be reached at MeGALalert@gmail.com or find us on Facebook. 

Further resources:

A2J Canada - Canadian Bar

Canadian Forum on Civil Justice

2013-08-13 Access to justice in Canada ‘abysmal’: CBA Report

2014-02-05 Access to Justice: Help coming for people headed to Canada’s civil and family courts

National Center for Access to Justice ( NCAJ )

Department of Justice - Access To Justice