Monthly Archives: September 2020

Editor’s Corner (The Liberum Veto: A Lesson for Lawyers)


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By: Gus Bequai, Esq.*

           Written laws are like spiders’ webs, and with them only entangle and hold… (Anacharsis)

For historians, it is axiomatic that history repeats itself and great civilizations fall largely from within. In the 17th century, Poland was the most powerful and wealthy nation in Central Europe. It was the Poles under King John III Sobieski, who in 1683 defeated the Ottoman Turks at the gates of Vienna; dealing them a military setback from which they never recovered.

Seventeenth century Poland was also one of Europe’s most diverse and cosmopolitan societies. While predominantly Catholic; within her borders also lived Orthodox Christians, Protestants, Jews, Muslims, Budhists, animists, and morer. Living side by side with the Poles, were Cossacks, Lithuanians, Ukranians, Germans, Russians, Latvians, Estonians, Swedes, Mongols, Gypsies, Turks, Bulgars and Roumanians.

Poland was the envy of both her friends and enemies alike. Her Parliament (the “Sejm”), and not England’s, was viewed as the most democratic legislative body in Europe. Yet, by the late 18th century, Poland had become a failed state and was partitioned by her enemies (Russia, Prussia and Austria). She would not regain her national independence again, until the 20th century.

The debate that lingers among historians to this day is, “what caused Poland’s collapse?” and what are the lessons to be learned. While the answers are many; nevertheless, two key factors stand out: the Sejm’s liberum veto (“free vote”) rule; and a political elite that made use of the liberum veto to manipulate Poland’s political process when it suited its interests.

The Liberum Veto

To check the power of her kings, the Polish Sejm enacted a rule called the liberum veto; which gave every member of the Sejm the right to veto any proposed legislation that came before it. Thus, a single member of the Sejm needed only to shout, Sisto activitatem! (Latin: “I stop the activity!”), to derail legislation on its tracks.

No matter how well meaning, by checking royal power, the liberum veto led to serious political abuses; paralyzing the workings of the Sejm. Bribery, extortion and blackmail became the norm; with most members of the Sejm up for sale. In a span of 200 years, the Sejm held 150 sessions; the liberum veto was used to ensure that no legislation was enacted in 50 of those sessions.    

History Can Repeat Itself

Shakespeare’s view of lawyers aside, the legal profession is one of the oldest and most durable in history. Lawyers drafted the first laws and treaties in history; among these, the Code of Hammurabi, Justinian’s Corpus Juris Civilis, Treaty of Kadesh, Magna Carta, Canon and Islamic law and more. Lawyers have been at the forefront of efforts to advance human rights, civil liberties and diversity.

Lawyers have a history to be proud of; without lawyers, civilization would have long since disintegrated into anarchy. They serve as guardians of the law; from their ranks come society’s judges, administrators and legislators. A modern version of the liberum veto, no matter how well intentioned, cannot be dismissed. If enacted, it would erode the political and social edifices on which American democracy rests.  Lawyers need to be vigilant.

*The views expressed in this column are solely those of the author. They are not representative of the Virginia State Bar, it’s Diversity Conference, or Invictus.

Equal Justice and Legal Services for the Poor: An Elusive Goal

by: Alexander Hewes[1]

        “Equal justice under law is not merely a caption on the facade of the Supreme Court         building, it is perhaps the most inspiring ideal of our society. It is one of the ends for which our entire legal system exists…it is fundamental that justice should be the same, in substance and availability, without regard to economic status.” 

– Lewis Powell, Jr., U.S. Supreme Court Justice

The National History:

        Organized civil legal aid for impoverished citizens in America can be traced to the end and immediate aftermath of the Civil War. The Freedmen’s Bureau, first known as the Bureau of Refugees, Freedmen and Abandoned Lands, was established by an act of Congress on March 3, 1865, two months before Confederate General Robert E. Lee surrendered to Union General Ulysses S. Grant at Appomattox Court House.  It was intended to help millions of former black slaves and poor whites in the South in the aftermath of the Civil War. The Freedmen’s Bureau established schools and offered legal assistance, while also providing food, housing and medical aid.

        The first legal aid society, a private charitable program, was established by lawyers in New York City in 1876 as the Legal Aid Society of New York. Its initial purpose was to defend the rights of German immigrants who could not afford to hire a lawyer. In 1890, a large donation from the Rockefeller Family allowed the organization to expand the reach of its services to include individuals from every background.

        In the following decades, the legal aid movement spread in the urban centers of the United States and, by 1965, virtually every major city had some kind of program. At that time, there were nearly 300 organizations employing over 400 full-time lawyers. Yet, there was no national program. Many legal aid programs were private corporations. Others were sponsored by bar associations, relying heavily on the donated time of lawyers. Some were part of governmental units, usually municipalities. Some were part of other social agencies.

        The federal Legal Services Program began in the Office of Economic Opportunity in 1965, as part of President Lyndon Johnson’s War on Poverty. The OEO created a structure that was based on the civil legal aid model and on demonstration projects that had been operating in New Haven, New York, Boston and Washington, D.C., funded by the Ford Foundation in the early 1960s.  Yet the development and progress of Federal legal assistance programs for the poor has been uneven with differing levels of resistance unrelated to the underlying need to provide services.

        They shared some common characteristics.  First, the resources were impossibly inadequate.   With limited resources and a high number of eligible clients, legal aid generally gave perfunctory service to a high volume of clients.  Going to court was rare.  Appeals were even more rare.  Legal aid had little effect on those it was intended to serve and the client population as a whole.

        As it developed, the federal Legal Services Program took cues from the pioneering work of the NAACP and its legacy of fighting legal battles to win social justice for African Americans that began in 1909.  The architects of the federal legal services program realized that the law could be used as an instrument for orderly and constructive social change as a supplement to what was being achieved by lawyers for the civil rights and civil liberties movements.  

        Clint Bamberger, the first director of the Legal Services Program, told the annual meeting of the National Legal Aid and Defender Association in 1965 that “Lawyers must be activists to leave a contribution to society. The law is more than a control; it is an instrument for social change. The role of [the] OEO program is to provide the means within the democratic process for the law and lawyers to release the bonds which imprison people in poverty, to marshal the forces of law to combat the causes and effects of poverty.”

        A year later, Bamberger told the National Conference of Bar Presidents: “We cannot be content with the creation of systems of rendering free legal assistance to all the people who need but cannot afford a lawyer’s advice. This program must contribute to the success of the War on Poverty. Our responsibility is to marshal the forces of law and the strength of lawyers to combat the causes and effect of poverty. Lawyers must uncover the legal causes of poverty, remodel the system which generates the cycle of poverty and design new social, legal and political tools and vehicles to move poor people from deprivation, depression, and despair to opportunity, hope and ambition.”

        Although many legal aid clients received public assistance prior to the mid-1960’s, no effort had been made to challenge questionable policies adopted by agencies providing such assistance – i.e., no “welfare law” had been developed. Similarly, what became known “housing law,” “consumer law,” “health law,” and the like did not exist.

Virginia’s History

        Virginia’s history of providing legal services to the poor followed an organizational path parallel to national history.  Before 1964, the majority of the legal needs of the poor were addressed by volunteer lawyers or private charitable organizations without state or national coordination.

        As early as 1906, the then-named Associated Charities of Richmond (became the Family Service Society and then Family Lifeline) had a legal department whose mission was to enforce the laws for the protection of women and children.[2]  Local bar associations also maintained legal aid programs, but these were all-volunteer and only provided a fraction of what was needed to address the legal needs of the indigent.  

        Before 1964, the only bar association in Virginia with a formal pro bono program was the Arlington Bar Association which has operated a pro bono referral program since the early 1950s.  The population density in that County generated enough foot traffic to make the program practical but the same demographics obviously did not exist in many parts of the Commonwealth and the rural poor were particularly short-changed on legal services.  This was a likely reason for the shortage of formal pro bono programs before the 1960s.

        Funded by the OEO, at least seven legal services organizations in Virginia were established in the late 1960s and early 1970s.  Yet the organized delivery of legal services to the indigent in Virginia was not a top-down development initiative by the Office of Economic Opportunity or Legal Services Corporation.  The Commonwealth’s first legal aid organization, the Legal Aid Society of Eastern Virginia, was established after the Norfolk Bar Association  applied to the OEO for a grant in 1996 which it used to establish what was then called Tidewater Legal Aid.  A separate example of a ground-up initiative came with the establishment of what is now the Legal Aid Justice Center (LAJC).  The forerunner to this organization was rooted in a pro bono partnership between University of Virginia law students and local attorneys who came together to attempt to meet the unmet legal aids of low income citizens in the area.  They formed Charlottesville-Albemarle Legal Aid, which became a formalized legal aid program in 1967.

        In addition, the time period from 1964 to 1982 also saw the emergence of the first clinical education programs at Virginia law schools.  Although the principal motivating factor behind this development was the students’ need for real-world experience, the clinics had the collateral benefit of providing legal services to indigent clients.  The first such program was the Alderson Legal Assistance Program established in 1968 at Washington and Lee School of Law, which provided legal services to female inmates at the Alderson Federal Correctional Institution (now the Alderson Federal Prison Camp).  The second legal clinic in Virginia was organized by John Levy at William and Mary School of Law in 1976.

        Despite these early initiatives, a 1991 Virginia State Bar and Virginia Bar Association Joint Committee to Study Legal Services in Virginia discovered that 84 percent of the Commonwealth’s poor lacked the benefit of counsel when confronted with a serious legal problem.   Since the mid 1990’s dozens of Virginia law firms have committed resources to the development of programs encouraging and promoting pro bono support, from fully integrated internal projects to fellowships and internships, as well as collaborations with outside groups, bar associations and law schools.

Virginia Current Day.

        Today, there is a plethora of alternative delivery systems for legal services to the poor that are either sponsored, or recognized by the VSB.  The VSB regularly updates its lists of regional and statewide programs that have been approved as official Qualified Legal Services Providers, as well as contact information for their pro bono coordinators. 

        The VSB website also links to the “JusticeServer” which was developed in collaboration with the Greater Richmond Bar Foundation, the Legal Aid Justice Center and Central Virginia Legal Aid Society to leverage the latest technology in providing pro bono legal services to low income clients.  This all-inclusive, state-wide case management and referral system enables private attorneys to accept and work on pro bono cases from their own computers. Each attorney can create a confidential profile, view pro bono opportunities available in their practice area and location, and find the resources to assist with handling the legal matter.

        Also, the VSB provides free webinar pro bono training and the Virginia CLE offers free content for attorneys dedicated to filling the justice gap by providing pro bono representation to their fellow Virginians.  Separately, the VSB maintains a list of Military & Veteran Pro Bono Projects intended to serve veterans.

The Continuing Shortfall

        With this history of accomplishment, it is disheartening to note that when Governor Ralph Northam recognized October 2019 as Pro Bono Month, he reported that more than 80 percent of the civil legal needs of the poor in Virginia go unmet and that one in eight Virginians were then eligible for free legal services from Virginia’s legal aid programs.   It is certain that there is a disparate impact on the rural poor who have even more limited transportation and communication options.  It is clear that much more needs to be done.  Expanded broadband coverage and internet access, coupled with an ethically-guided use of artificial intelligence programs can provide some relief but infrastructure and formal organizations can take things just so far.  Just as Virginia’s history of innovative local leadership has depended on the voluntary efforts of lawyers in each community, so too the still unmet needs of the indigent require more effort from lawyers capable of providing those needed services.

        The VSB’s Rule 6.1 of the Rules of Professional Conduct creates an aspirational goal that Virginia lawyers take professional time – at least 2 percent per year – to do pro bono publico legal services.   With an attorney that generates 1800 billable hours per year, that amounts to a total of 36 hours; hardly a burden.

        While a greater effort is required it is worth pointing out that the needs of the poor should not be used to fuel political agendas of any kind.  If we are going to come close to the standard described by Justice Powell, quoted above, it will require the cooperation of all and a unity of purpose.

[1] Mr. Hewes is a former Trial Attorney with the U.S. Department of Justice; with prior service in private practice and on the Staff of the United States Senate Committee on Banking, Housing and Urban Affairs.  He is an author and lecturer on various legal issues and is currently in private practice in Winchester, Virginia, also serving as a member of the Invictus Editorial Board.

[2] Mary Frances Shelburne, A Brief History of the Family Service Society of Richmond, Virginia, WILLIAM & MARY, 1932, ret. 14 Dec. 2017.

New Members Join the Board of Governors

On June 26, 2020, our Board rotated membership. Carole Capsalis, Providence Napoleon, and Latoya Asia all rotated off the Board after years of distinguished service. All three served as chairs of the Diversity Conference in consecutive terms. Chairs oversee the meetings of the Board, run the day-to-day business of the Conference, and represent the Conference to the Virginia State Bar Council and Executive Committee. We will miss their wisdom, enthusiasm, and dedication to the Conference but we thank them for their leadership during critical times for the Conference and the Virginia State Bar.

Rotating in to begin three year terms are three exceptional attorneys and volunteers.  We look forward to working with them over the next three years.

Brian Wesley, Esq.

Brian Wesley, Esq., of Richmond, is with Thornton and Wesley, PLLC. Brian’s service with the Virginia State Bar began with the Young Lawyers Conference, chairing the Minority Prelaw Conférences in Hampton Roads and Northern Virginia. He served on the Board and was President of the YLC during the 2018-2019 bar year.  He is a graduate of the University of Virginia and the Howard University School of Law.

Debra Powers, Esq.

Debra Powers, Esq., of Fairfax, is a partner at Taylor Hugley Powers, PLLC. She has a distinguished career of service to the bar, serving as chair of the Family Law Section with the Virginia Trial Lawyers Association, past president of the Northern Virginia Chapter of the Virginia Women Attorneys Association, and six years of service on the Virginia State Bar’s Disciplinary Committee. Ms. Powers is admitted in Virginia and Pennsylvania. She is a graduate of the University of Richmond and the University of Virginia School of Law.

Marcus Scriven, Esq.

W. Marcus Scriven, Esq., of Virginia Beach, is a solo practitioner who started his career in San Francisco.  Mr. Scriven has a long record of bar and community service, earning numerous awards over the course of his career. He also serves on the executive board with the Virginia State Bar’s Conference of Local and Specialty Bar Associations. Mr. Scriven is admitted in Virginia, California, South Carolina, Washington, DC, and the U.S. Supreme Court. He is a graduate of Virginia Union University and the Golden Gate University School of Law.

Please provide a warm welcome to our new board members and a major thank you to our outgoing board members.

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