State Bar of Wisconsin

Section’s Loan Forgiveness Seminar – A Big Success

By Eva Shiffrin, PILS Board Chair

More than 35 lawyers and law students attended the Practice Public Interest (or Government Law) Without Going to the Poorhouse seminar.

Close to 40 law students and attorneys attended Practice Public Interest (or Government Law) Without Going to the Poorhouse Public Interest Law Section CLE seminar on Oct. 27 in Madison. The seminar’s topic was the College Cost Reduction and Access Act of 2007 (CCRAA). This new law affects public interest lawyers, government lawyers, public defenders, and anyone else who is trying to figure out how to pay off student loans. Attorney Mitch from the U.W. Law School and Community Justice Inc. was the lead presenter, with U.W. law student Karen Siettmann, and members of the Public Interest Law Section and Young Lawyers Division boards assisting him.

Participants learned the ins and outs of all loan repayment and forgiveness options, from traditional options to the loan forgiveness benefit under the CCRA. Several participants commented on how helpful the presentation was in identifying when the CCRA would provide a benefit and when other loan repayment options might be a better option. One participant stated: "This was the most comprehensive and helpful explanation of loan forgiveness programs I have seen in the my three years of law school and six years as a public interest attorney."

Read an in-depth article on loan forgiveness in the October 2008 Wisconsin Lawyer magazine.

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New “Low Bono” Legal Assistance Available Now

By Eva Shiffrin, PILS Board Chair

Not everybody can afford legal services. While legal services corporations do a great deal to address the needs of those with low income, the demand far outweighs the supply. In addition, the income limits for accessing these services preclude many families from services who do not have the means to hire an attorney. The modest means panel seeks to address this unmet legal need.

The State Bar of Wisconsin’s Unmet Legal Needs Survey of 2007 found that 11% of Wisconsin’s families live at or below 125% of poverty and 22% live between 125 and 200% of poverty. One hundred twenty five percent of poverty for a family of four is $26,500 before taxes and 200% of poverty for a family of four is $42,440 before taxes. With this kind of income, families are already stretching to pay rent or mortgages, buy groceries. Budgeting for legal needs is out of the question for most of these individuals.

The Modest Means Panel seeks to provide affordable legal services to those individuals and families who are not eligible for legal services, but who cannot afford legal services. Attorneys who agree to serve on this panel are encouraged to provide affordable initial consultations and are required to offer reduced fees to those who fall within 125-200% of poverty.

Public interest attorneys have long recognized the difficulties in providing assistance to this group of individuals. Reduced fee legal services, sometimes called “low bono” legal services, or sliding scale fees, have long been used by community public interest practitioners as a way to extend legal services to this population in need.

The Public Interest Law Section is excited about the State Bar’s initiative. We encourage all who are able to sign up for the panel on the State Bar website. Attorneys who sign up for the modest means panel can ask for coverage by the State Bar’s malpractice insurance.

The referrals for this program will be handled through the State Bar’s Lawyer Referral and Information Service, although, for modest means referrals, there is no fee for the referral service. Only certain types of cases are covered by the modest means panel.

Please visit the Wisconsin State Bar’s Modest Means Program page for more information on this service.

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ADA Amendments Act Update -- Don't Miss Oct. 30 Webinar

By Jodi Hanna, Supervising Attorney, Disability Rights Wisconsin

On September 25, 2008, President Bush signed the ADA Amendments Act into law after identical bills were passed by the Senate (unanimously on September 11, 2008) and the House (by voice vote on September 17, 2008). The ADA-AA overturns restrictive Supreme Court rulings and restores the law’s original promise of protection from discrimination for people with disabilities. The previous court decisions excluded large groups of people with disabilities from coverage, placing workers in the Catch-22 situation of being considered “too disabled” to work, yet not “disabled enough” to be covered by the ADA. The ADA-AA is the result of negotiations and compromise between employee and disability advocates and businesses.

Key provisions of the act state that the definition of disability should be construed in favor of broad coverage and while retaining the existing definition of “disability,” the ADA-AA amends the ADA to further define and clarify three critical terms with in the existing definition: “substantially limits,” “major life activities,” and “regarded as” having such impairment. The ADA-AA changes the ADA to include a non-exhaustive list of major life activities, including caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. The law also expands the category of major life activities to include the operation of major bodily functions. The ADA-AA makes it clear that under the ADA, employers are not required to provide reasonable accommodations for those who qualify for coverage solely by being “regarded as” people with disabilities. In what is arguably the most significant change, the law prohibits consideration of mitigating measures such as medication, assistive technology, accommodations, or modifications when determining if an impairment constitutes a disability.

On Oct. 30, the National Employment Lawyers Association is offering a webinar entitled “Litigating Disability Claims under the ADA Amendments Act of 2008,” which features such speakers as Attorney Brian East and Senator Tom Harkin. Registration material is available at the National Employment Lawyers Association website.

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Court of Appeals Invalidates Department of Health Services Rule

By Mitchell Hagopian, PILS Board Member and Immediate Past Chair, Disability Rights Wisconsin

In a case brought by Disability Rights Wisconsin (DRW) on behalf of a woman with multiple sclerosis, Wisconsin’s Fourth District Court of Appeals ruled on July 24, 2008 that the Department of Health Services (DHS) must follow formal rulemaking procedures before it can impose the so-called “one third of the time” rule in determining eligibility for community based long-term care programs (i.e. Family Care, COP-Waiver, CIP). The case arose out of a change in the way county workers assessed the severity of limitations in persons whose ability to do everyday activities such as bathing, toileting, and just getting around changes from day to day due to ups and downs in their illness.

Prior to 2005, whether a person had a limitation in one of these activities was based on the person’s “worst” day during the month. In other words, if you could not use the toilet even one day per month because of your health condition you would be considered to have a limitation. In 2005, the Department of Health Services, through an instruction to the county workers, changed the standard. Instead, under the new instruction, a person would not be considered to have a limitation if he had trouble with the activity less than “one third of the time.” In other words, a person would have to have trouble toileting herself on at least ten days in a thirty-day month in order to be considered to have any limitation in toileting. The new policy was very troubling for people who have conditions that cause them to have “good” and “bad” days.

Susan Cholvin was one such person. Her multiple sclerosis would cause limitations several times during a month, but the county worker and the administrative law judge who first heard her case did not believe she had enough “bad” days to qualify for help under the “one third of the time” policy. As a result, Ms. Cholvin was thrown off the COP-Waiver program.

Disability Rights Wisconsin took her case to circuit court in Rock County, where the judge sided with the Department of Health Services. DRW appealed the case to the court of appeals. The appeals court agreed with DRW’s argument that the “one third of the time” instruction was a “rule” under § 227.01(13) Wis. Stat. and therefore subject to formal notice and comment rulemaking procedures.

In order for a policy pronouncement to be deemed a “rule” it must meet five criteria: (1) a regulation, standard, statement of policy or general order; (2) of general application; (3) having the effect of law; (4) issued by an agency; (5) to implement, interpret, or make specific legislation enforced or administered by such agency. DHS argued that the “one third of the time” rule was not of general application and did not have the force of law.

The court of appeals rejected the arguments of DHS, finding that the policy was of general application because, although if only affected a subset of applicants, it was applied to every applicant. The court also found that the “policy’ had the effect of law because it could not be disregarded by county workers. 2007 AP 1350 ¶25. Further, it rejected DHS’s argument that the instruction fell within the exception from rulemaking that applied to instructional materials. 2007 AP 1350 ¶29. While the court recognized that agencies may use policies and guidelines to assist them in the implementation of administrative rules, the “one third of the time” instruction went beyond that threshold:

The court found that before adopting such a new eligibility condition the Department of Health Services must go through formal rulemaking procedures – which include opportunities for public comment and legislative review. The court found the rule invalid under Wis. Stat. § 227.40(4)(a). Id at ¶21. Until the rulemaking process is pursued and completed the Department of Health Services cannot use the “one third of the time” instruction. DHS did not request review by the Wisconsin Supreme Court. The decision has been published.

Attorneys Hal Menendez (a PILS member) and Paula Lorant filed an amicus brief on behalf of Legal Action of Wisconsin, the Legal Aid Society of Milwaukee, and the Alzheimer’s Association of Southeastern Wisconsin strongly supporting Ms. Cholvin’s case. The full opinion and be found on the Wisconsin Court website.

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PILS Seeks Nominations for the Dan Tuchscherer Award

By Carlos Pabellon, PILS Board Member and Awards Committee Chair

The Public Interest Law Section of the State Bar of Wisconsin is pleased to announce that it is now accepting nominations for the Dan Tuchscherer Outstanding Public Interest Law Attorney Award. The Dan Tuchscherer Outstanding Public Interest Law Attorney Award recognizes a lawyer who has demonstrated a selfless, lifetime commitment to working in the public interest, both inside and outside the field of law. The award ceremony will be held in conjunction with the State Bar of Wisconsin’s Annual Convention next May. Letters of nominations will be accepted through December 31, 2008.

The nominating criteria for the Dan Tuchscherer Outstanding Public Interest Law Attorney Award are as follows:

1. Lifetime commitment to working in the public interest, either in the private or public sector;

2. Public interest work history; “commitment to serving in the public interest”;

3. Volunteer work; active in the community beyond employment responsibilities (i.e. this means more than having one’s name on a roster but, rather, organizing and attending community events/projects);

4. Selfless commitment to helping others;

5. Work helps community at large, either one client at a time or more “globally.”

All letters of nomination should include a brief description of the nominee’s public interest work and an explanation of how it reflects the criteria listed above. Please send letters of nomination to PILS Board member Carlos Pabellon at 634 W. Main Street, Suite 101, Madison, WI 53703 or email pabellon@gmmattorneys.com.

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Legal Action’s Volunteer Lawyers Project 2008 Fall Training Program

By Patricia Zeeh Risser, VLP Coordinator at Legal Action of Wisconsin

Legal Action of Wisconsin’s Volunteer Lawyers Project (VLP) is recruiting lawyers who want to help Legal Action’s low-income clients achieve equal justice. The Volunteer Lawyers Project offers pro bono opportunities that help poor people protect the safety, stability and health of their families, maintain safe and affordable housing, and secure public benefits that will assure food, medical care and financial support.

To attract new volunteers and support currently active volunteers, the VLP offers free, CLE-approved training every November. The 2008 VLP Fall Training will be held November 4-6 at the Richard T. Anderson Education Center Waukesha County Technical College in Pewaukee, and November 18-20 at the American Family Training Center in Madison. The training subjects are Bankruptcy, Family Law, Elder Law and Unemployment Compensation in Pewaukee, and Consumer Law, Housing, Working with Interpreters and Immigration Issues in Madison.

More information about the agenda and presenters for each of the subjects listed, as well as registration and lodging information.

In addition to the VLP training programs, which include comprehensive manuals with essential forms and sample documents, the Volunteer Lawyers Project supports volunteer attorneys with ongoing technical support, professional liability insurance, a litigation expense fund, case/client screening, scheduling flexibility and special pro bono projects.

Participating in the Volunteer Lawyers Project is an effective way for lawyers to meet their professional pro bono obligation and contribute to their communities. Please contact the VLP for more information about the pro bono opportunities available at (414) 274-3067 (toll-free 888-278-0633, ext. 3067) or vlp@legalaction.org.

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State Bar CLE Thanks Section Members

The State Bar of Wisconsin CLE Books Division would like to thank the following members of the Public Interest Law Section for their contributions of time and expertise over the last four months:

Jessica Hutson (Contract Law in Wisconsin), Mitchell M. Hagopian (Guardian ad Litem Handbook), and Kristin M. Kerschensteiner (Guardian ad Litem Handbook).

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