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THE DEFENDER

The Director's Ledge by Michael J. Machen, Esq.

I attended a meeting of The Joint State Government Commission on Wrongful Convictions in August, 2008, in Harrisburg, and the salient issue discussed was whether client interrogations should be taped. Saul M. Kassin, a nationally recognized authority on videotaped confessions, who advocates such taping, noted that some states have gone so far as to pass a statute requiring a tape be made. Among those states are Minnesota, Alaska, Illinois and Maine. The following discussion points resonated loudest from the lectern and the members themselves, sparking a spirited discussion:

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Office of the Public Defender

Volume III, Issue 1 September 2008

Inside this Issue:

Director Machen speaks 2 to Law Students Juvenile Division Update 3

An Open Letter on Public 4 Defender Day On Mandatory Minimum 6 Sentencing Provisions New Procedures for the Release of Information Rule to Permit Juror Note-taking Made Permanent A Matter of Ethics 8 9

When does the taping begin? Is it immediately upon arrest, when the client is brought into the interrogation room, or when the questioning of the client begins? Does the videotaping center on the client; or should the camera include the client and his/her interrogators, thus taking a neutral "equal focus" position? Will the videotaping provide an accurate account of what transpired between the police and the client; i.e. police tactics, length of interrogations, all questions and answers?

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Prosecutors and Defend- 12 ers Incentive Act of 2008 Top 10 Qualities that build Trust Notes from a Summer Intern Pretrial Publicity 13 14

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Additionally, our office has been appointed to the first ever Joint State Government Commission on Services to Indigent Criminal Defendants. This is a huge step for Pennsylvania and a proud moment for our office, as we are but one of the four out of more than sixty Public Defender Offices in the state to be chosen. This is a priority for our office and the first meeting is in October, 2008. Finally, the Allegheny County Bar Association, through Jay Bleckman, President of the ACBA, will meet with County Executive Dan Onorato to discuss their legislative priorities within the next several weeks. It is with great pleasure that I note that the funding for the Allegheny County Public Defender Office is on their list of legislative priorities. This is a first for our office, but just the beginning.

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PA Not Alone in 16 Needing State-Wide Public Defender Funding

"An ounce of action is worth a ton of theory."

Friedrich Engels

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THE DEFENDER

Director Michael Machen Addresses Students From Concord Law School

On Friday, October 12, 2007, OPD Director Michael J. Machen gave a brief presentation to students from Concord Law School, a part of Kaplan University. Concord is unique in this country in that it provides a wholly on-line legal education experience. While the main administrative offices for Concord Law School are located in Los Angeles, California, students and professors can be found all over the country. Some even participate in their classes while living abroad or stationed overseas in the military. A typical Concord JD student attends four years of intense legal study that includes taped lectures viewed at Concord's website, on-line interactive class sessions with a Law Professor, as well as hornbook and casebook readings. Students are evaluated by taking quizzes and writing legal essays, along with the traditional midterm and final exams. After completing the four year program, Concord students are eligible to take the California Bar Examination. Concord also offers a non-bar track program for those students who do not intend to practice law, but want the benefit of a legal education. The Executive Juris Doctorate degree conferred is unique to Concord students. EJD students were also invited to attend Director Machen's talk and participate by asking him questions. Director Machen spoke for an hour and a half on various topics and answered many questions on issues surrounding, among other things: the need to use experts at trial in an age when juries are intimately familiar with television programming like CSI; what kind of experience a law student should try to get if interested in working as a public interest lawyer, especially in criminal defense; and some of the history and background of the Allegheny County Public Defender's office.

Photo courtesy of Michelle Lucas and Larry Gholstein

Director Machen also talked about the need for public funding for criminal defendants in this country in general, and Public Defender's Offices in particular, and the continuing need to protect the constitutional rights of those accused of criminal conduct without regard to the question of ultimate guilt or innocence. Over 50 Concord students attended the live presentation, and the talk remains archived on the Concord website so that all students will be able to listen as it is convenient. The talk was moderated by former Assistant Public Defender and Concord Professor of Law, John Ciroli, Esquire. For more information about Concord Law School and Kaplan University, check out their informational website at http://info.concordlawschool.edu/.

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JUVENILE DIVISION UPDATE

Mark Waitlevertch Since the last newsletter, there have been a number of developments and changes regarding the Juvenile Division and juvenile practice within Allegheny County. We continue to be major players in the statewide organization, the Juvenile Defenders Association of Pennsylvania. Georgene Siroky and Mark Waitlevertch serve on the Board of Directors of the Association, and Mark also serves as vice-president and chairman of the training committee. The JCJC training will be held in Harrisburg in early November and a number of our staff will be presenters at this two-day long CLE focused on Juvenile practice. Our office also is continuing to join the effort of addressing disproportionate minority contact issues in Juvenile Court with the work of the MacArthur Foundation. Recently, a forum was held that analyzed the statistical trends in the county concerning detention, charging, diversion and placement, and discussed whether, and how, disproportionate representation exists. The group's next step will be to acknowledge and to address these decision points as they relate to race and the juvenile justice system. Administrative Judge Clark has created and implemented an electronic filing system for juvenile records. Attorneys can now file all motions electronically from their desktop and instantaneously give opposing counsel notice without the need for paper filings. The system is not yet mandatory but is being used by the Juvenile Division. I also want to welcome our two newest attorneys to the Juvenile Division, Rhiannon Sisk and Nikki Wilson. Both are doing a great job and have adjusted well to the madness that is Juvenile Court. Finally, on the legislative side, we are waiting and watching to see how the new Adam Walsh legislation will be implemented in Pennsylvania. Our friends at the Philadelphia Defender Center are taking the lead on this initiative. The law will eventually impact both juveniles and adults. The law will have an impact on registration guidelines and mandates for sexual offenders. As the law develops, and as I receive news as to its form, I will be getting the word out to the rest of the office.

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THE DEFENDER

AN OPEN LETTER ON PUBLIC DEFENDER DAY

Harry J. Cancelmi, Public Defender, Greene County And President, Public Defender Association of Pennsylvania

March 18, 2008 Re: 45th Anniversary of Gideon v. Wainwright & Public Defender Week

Dear Leaders, Editors, and Pennsylvanians: During this week that began with a day of parades celebrating a man, first a slave, who became the first bishop of Ireland; a week that includes a Jewish celebration recorded in the scroll of Esther marking the day a just king voided an unlawful decree ordering the annihilation of a people; a week that ends with the Christian holy day of the resurrection that followed one of history's ugliest trials; falls another anniversary day of a great moment in the history of the United States constitution. This week marks the 45th anniversary of the landmark decision of the United States Supreme Court, decided on March 18, 1963, in Gideon v. Wainwright. By this decision, the unanimous Court held that the right of an accused defendant to counsel is a fundamental right, and that due process requires that an indigent accused have a lawyer provided by the state. The reasons to dedicate this anniversary to the public memory are manifold. First, that an uneducated, poor, fifty year old man, accused of a petty theft, denied appointment of legal counsel, and imprisoned after being forced to represent himself, caught the attention of the United States Supreme Court in a handwritten petition, resulting in the single greatest change in the history of the United States criminal justice procedure, demonstrates the greatness of the American legal system. Second, in 1969, by statute, the Pennsylvania General Assembly established the Office of Public Defender in each county in the Commonwealth of Pennsylvania. Every Office of Public Defender is staffed by dedicated lawyers and support personnel solely devoted to the task of assuring that everyone has access to equal justice, whatever one's financial station in life, in fulfillment of this constitutional mandate. Third, the citizens of Pennsylvania and of the United States of America are reminded that our freedoms and liberty will best endure when justice, fairness and the rule of law protect

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AN OPEN LETTER ON PUBLIC DEFENDER DAY

all of us regardless of race, creed, color, or financial status.

(CONT.)

Fourth, Gideon calls to our attention that meaningful fulfillment of its promise requires not just the establishment of a Public Defender's office, but establishment of an office that is properly staffed by competently trained defenders, adequately funded, and independent from the often fickle winds of politics. And finally, all citizens should know that the Commonwealth of Pennsylvania is the only state in the United States that provides no state funding for adult indigent defense. The entire budgetary burden of the county public defender is born by the county and its taxpayers. We look forward to citizens and political leaders joining the public defenders in Pennsylvania to reflect on the Gideon decision and its promise of equal justice. Very truly yours, The Public Defender Association of Pennsylvania Harry J. Cancelmi, Esquire [email protected] President

"Keep the faith; for without faith there is no hope, without hope there is no progress, and without progress civilization cannot endure." Dan DeLisio

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THE DEFENDER

ON MANDATORY MINIMUM SENTENCING PROVISIONS

Kirk Henderson

Kirk Henderson of the Appellate Division of the Allegheny County Office of the Public Defender recently published a law review article that argues that mandatory minimum sentences are unconstitutional unless the predicate facts for it (e.g., visible possession of a firearm or a certain quantity of drugs) are found by a jury beyond a reasonable doubt. The full argument is set out in "Mandatory-Minimum Sentences and the Jury: Time Again to Revisit Their Relationship," 33 UNIVERSITY

OF

DAYTON LAW REVIEW 37 (2007).

The article notes that the United States Supreme Court held in McMillan v. Pennsylvania, 477 U.S. 79 (1986), that a mandatory-minimum sentence may be imposed when a judge has found certain predicate facts by a preponderance of the evidence. In McMillan, the case concerned Pennsylvania's mandatory-minimum sentence for visible possession of a firearm. Fourteen years after McMillan, the Court started to back away from this principle in Apprendi v. New Jersey, 530 U.S. 466 (2000), by requiring that any fact that raised the statutory maximum for a crime must be found by a jury beyond a reasonable doubt. Two years later, the Court reaffirmed McMillan in Harris v. United States, 536 U.S. 545 (2002), by holding that predicate facts for a federal mandatory-minimum sentence could be found by a judge by a preponderance of the evidence because the statutory-maximum sentence remained unchanged. Five justices -- a majority of the Court -- however, found McMillan and Apprendi to be logically inconsistent with each other. Two years after that, the Court extended Apprendi by holding in the case of Blakely v. Washington, 542 U.S. 296 (2004), that facts which increase a sentence's starting point in a compulsory-guidelines scheme must be found by a jury beyond a reasonable doubt. It reached this conclusion even though the statutory maximum-sentence remained unchanged. The following year in United States v. Booker, 543 U.S. 220 (2005), the Court applied Blakely to the federal guidelines and determined that the appropriate remedy was

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to strike the portion of the guidelines that made them mandatory. Then, in Cunningham v. California, 549 U.S. 270 (2007), the Court found that when three sentences are possible and the middle-term sentence is required absent the finding of additional facts, an upperterm sentence may not be imposed unless a jury has found the necessary predicate facts beyond a reasonable doubt. irrelevant. The core principle in these post-Harris cases from the United States Supreme Court is this: if a fact fixes a sentencing range by increasing its starting point and, thus, limits a judge's discretion in what sentence he or she may impose, that fact must be found by a jury (and not by the judge) and it must be found beyond a reasonable doubt (and not by a mere preponderance of the evidence). Whether the absolute statutory maximum for the offense increases or stays the same is irrelevant for constitutional purposes. The Pennsylvania Supreme Court has not yet considered this question, but Superior Court has twice rejected an attack on Pennsylvania's mandatory-minimum sentences based upon Apprendi, Blakely, and Booker (though not unanimously). The Court's holding was based upon the maximum sentence not increasing, a theory discredited in Blakely, Booker, and Cunningham. Courts and other policy makers may be concerned that requiring mandatory minimum sentences to be proven to a jury also will require juries to find aggravating factors which can be used at sentencing. Blakely and Booker, this fear is misplaced. For sentencing guidelines that have survived For example, Pennsylvania's guidelines are Again, whether the maximum sentence changed was

advisory, which makes them constitutionally distinct from a mandatory sentence. The United States Supreme Court, thus, will have to again revisit the role a jury is to play when the state seeks to impose a mandatory-minimum sentence. The Court's most recent cases have all but required that these facts must be found by a jury beyond a reasonable doubt and not by a judge by a preponderance of the evidence. The Court

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THE DEFENDER

NEW PROCEDURES FOR THE RELEASE OF INFORMATION Marty Aronson, Investigations Division

Several years ago, then Legal Assistant Jared Barker created a HIPPA-compliant Release of Information form specifically for the OPD. After Mr. Barker completed the Release form, it was distributed throughout the OPD for use as needed. The Investigation Division (which is usually tasked with Record Retrieval duties) eventually discovered a problem with the release form as written. The problem was that the Hospitals and other Facilities in Allegheny County refused to accept the OPD Release of Information form even thought it met all HIPPA requirements. The different Hospitals or Facilities preferred their own respective Release of Information forms be used. This, of course, negated the usefulness of the single request form. The Investigation Division soon realized that it was easier to deal with the Hospitals and Facilities if they received their own respective Release of Information forms. To make the process of getting the necessary information more efficient, the Investigation Division began gathering specific Releases of Information forms from the numerous Hospitals and other Adult and or Juvenile Facilities (D&A Treatment, Mental Health Treatment, Jails, Schools, etc.) and storing them in a file drawer back in the Division. A few months ago, it was discovered that the OPD was still at times using the old OPD Release of Information forms. At that time, several Investigators decided that it was time to update the office's Releases of Information and standardize the process. Thus, Investigators Robert Karl and Anita Merlino suggested compiling a Computer database of all the Release of Information forms. Investigators Marty Aronson and Randall Olsen began making phone calls to all of the Hospitals and other Facilities in order to obtain the most up-to-date Releases of Information possible. These Hospitals and other Facilities then either e-mailed or faxed the preferred Releases of Information to Investigator Aronson. In the near future, the entire collection of Releases of Information will be scanned electronically into the OPD Shared Drive (S:), along with a Contact List, for the entire Office's benefit. This should make it easier, and more efficient, to obtain the necessary information needed to help our clients.

Justice is conscience, not a personal conscience but the conscience of the whole of humanity. Those who clearly recognize the voice of their own conscience usually recognize also the voice of justice. ALEXANDER SOLZHENITSYN

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RULE TO PERMIT JUROR NOTE-TAKING MADE PERMANENT

Victoria H. Vidt, Appellate Division

On August 7, 2008, the Pennsylvania Supreme Court amended Rules 644 and 646 of the Pennsylvania Rules of Criminal Procedure to make permanent the provision that jurors may take notes during trial. As in the provisionary incarnation of the Rules, jurors are only unilaterally permitted to take notes when a jury trial is expected to last for more than two days. When a trial is expected to last for less than two days, the presiding judge may permit the jurors to take notes for their own use during deliberations. Jurors still shall not take notes during the judge's instructions at the end of trial. These notes are stated to be "merely . . . memory aids, not evidence or the official record." Pa.R.Crim.P. 644(B)(3). Moreover, the notes are not required to be taken, and may not be taken from the courtroom. The court will provide materials to the jurors in appropriate cases for the taking of notes, and shall collect and store them for the jury as necessary. Jurors may then review their notes during deliberations. Importantly, the notes are confidential, may not be reviewed by the parties or the Court, and are destroyed immediately upon the discharge of the jury. The R ul e pe rmit t ing n ot e -ta king wa s originally passed in 2005 on a temporary basis. The Pa. Supreme Court adopted the rule for three years, "for the purpose of assessing whether juror note taking in criminal cases is beneficial to the system of justice in Pennsylvania." Pa.R.Crim.P. 644 cmt.

The recent action by the Court simply made permanent the previous provision. Specifically, the Committee Report, recommending that the change in the Rule be made permanent, stated that the Rule has found favor with the bench, bar, and public. In addition, Criminal Rule 646, relating to Material Permitted to be in the Possession of the Jury, was amended to specifically permit jurors to take and retain notes taken during testimony about a defendant's confession at trial. In 2007, the Committee was alerted to an unreported Allegheny County Common Pleas case in which the trial judge refused to permit the jurors to take notes during the testimony of a police officer relating a confession made by the defendant. The trial judge's position was based upon Rule 646(B)(2) that states the jury may not have in its possession for deliberations a copy of any written or otherwise recorded confession by the defendant. The trial judge interpreted the otherwise recorded language to include notes taken by jurors. The Committee looked at the reasoning behind the ban included in the Rule and concluded that the primary concern was that a defendant's confession not be of such overpowering authority that it would outweigh other evidence at trial. However, juror notes of such testimony do not rise to this level of impact. Thus, the notes are now deemed permissible. The Comment to Rule 646 is thus clarified to permit juror note taking.

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THE DEFENDER A MATTER OF ETHICS By Richard H. Lindner, Pittsburgh, PA Basic (But Important) Stuff and a Heads Up

Diligence and Communications

In this inaugural ethics column for The Defender newsletter, I will start with a review of two basic professional conduct provisions that criminal defense attorneys (and lawyers in general) frequently violate; and I will conclude with a "heads up" on a matter that has proven to be a "trap for the Although a variety of communication duties are unwary." imposed upon attorneys throughout the RPC, Rule The "FAQs By Consumers" section of the 1.4 is the linchpin provision that focuses on the Pennsylvania Supreme Court Disciplinary m a n d a t o r y c o m p o n e n t s o f r e a s o n a b l e 1 Board website includes several references to communication between a lawyer and client. The the respective duties of a lawyer to be Comment to Rule 1/4 includes further elaboration diligent and communicative in representing under the headings of "Communicating with clients. (Note: Alleged violations of these Client," "Explaining Matters," and "Withholding ethical duties often go "hand-in-hand.") Information." Among the examples of practices that are clearly prohibited by the Rules of Profes- Disciplinary precedent in Pennsylvania reflects sional Conduct (RPC), the Board includes: that "first-time offenses" involving lack of "Serious neglect of a client's case or a diligence and/or insufficient communications will client. Examples would be a lawyer's failure ordinarily result in private discipline, as long as to file papers or documents with the court no aggravating circumstances exist. In some within time periods prescribed by law, or instances, such matters may even be disposed of unreasonable failure to communicate with through dismissal with a warning letter, especially clients on a timely basis." In regard to a where substantial mitigation is established. question about whether a lawyer has to return all of the telephone calls received In the absence of misrepresentations or other bad from a client or answer all of the client's faith conduct by the attorney, disciplinary cases letters, the Board replies: "A lawyer must in Pennsylvania involving a pattern of neglect and promptly comply with reasonable requests inadequate communications have resulted in for information and must keep the client discipline ranging from private reprimand to 2 informed about the status of a matter suspensions of one year and a day. Ordinarily, regardless of whether the client has in- the level of discipline increases commensurately quired about the status, in order for the _________________________________________ 1 Included in this Rule since July 2006 is a provision client to make informed decisions. This requiring a lawyer in private practice to inform a new client does not mean that every call must be in writing if the lawyer maintains inadequate (less than returned; the responsibility is a general $100K/$300K) professional liability insurance coverage. one."

2 Attorneys suspended for more than one year must file a petition for reinstatement and establish their fitness at a hearing.

The duty to act with reasonable diligence and promptness in representing a client is found in Rule 1/3/ The Comment to that Rule provides important guidance about fulfilling the duty of diligence. The Comment also notes that "Perhaps no professional shortcoming is more widely resented than procrastination. . . ."

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with the number of cases neglected and the extent of the attorney's prior disciplinary history. For a brief survey of disciplinary precedent relating to recidivistic neglect, see paragraph #44 of the Joint Petition in Support of Discipline on Consent in the case at No. 26 DB 2006 (Meehan), which can be found on the Disciplinary Board's website. A public censure was imposed in No. 26 DB 2006, where the respondent failed to file Notices of Appeal in two criminal matters and had previously received an informal admonition and a private reprimand for similar misconduct. More severe discipline has been imposed where the neglect and communication delinquencies are aggravated by misrepresentations by the attorney and a history of prior public discipline. See, e.g., ODC v. Duffield, 644 A.2d 1186 (Pa. 1994), in which disbarment was ordered. How can you avoid violations of Rule 1.3 and Rule 1.4? Recommended preventive measures include: 1) Maintaining a good calendaring/tickler system to ensure that you are aware of and comply with all deadlines and do not miss court dates, appoint ments, etc.; 2) Managing your caseload so you are not overburdened; 3) Promptly responding, personally or with the help of staff, to reasonable requests for information (keeping in mind that nonlawyers are not permitted to provide legal advice); 4) Remembering that a lawyer must generally abide by the client's decisions concerning the objectives of representation, and must consult with the client as to the means by which they are to be pursued; and 5) Keeping a log of telephone contacts with each client (and others), as well as copies of written and electronic communications, to establish, if challenged, diligence and communications. * * *

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. . And Now the "Heads Up" If you are having a formerly admitted attorney (i.e., disbarred, suspended or on inactive status) assist you in your practice, carefully review Rule 217(j) of the Pennsylvania Rules of Disciplinary Enforcement. That Rule imposes various regulations and restrictions that must be followed. Included in the Rule is a requirement that both the supervising attorney and the formerly admitted attorney must provide written notice to the Board of such employment or engagement (even if the formerly admitted attorney is acting as an independent contractor). In addition, the rule prohibits a suspended or disbarred lawyer from providing law-related activities for any firm or lawyer with which he/she was associated on or after the date of the misconduct that led to the loss of the license.

Attorney Lindner served as a prosecutor with the Office of Disciplinary Counsel in Pittsburgh for five years before moving into private practice in September 1986. Since then he has concentrated in legal ethics and disciplinary law. If readers would like to suggest topics for future columns, please submit your suggestions by email to [email protected]

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THE DEFENDER

JOHN R. JUSTICE PROSECUTORS AND DEFENDERS INCENTIVE ACT OF 2008

OR ... WILL PUBLIC DEFENDER ATTORNEYS SOON HAVE HELP IN REPAYING STUDENT LOANS?

The John R. Justice Prosecutors and Defenders Incentive Act of 2008 was passed to encourage individuals to enter into and remain in criminal justice careers by setting up a system of loan repayment benefits to relieve the high burden of law school debt. All Public Defenders who are continually licensed attorneys, employed full time, and are employed by the Allegheny County Office of the Public Defender will qualify under this act. Also included are attorneys who are supervising, training or educating other staff engaged in defending indigent defendants. Loans that are made directly to the student/borrower (i.e., not to parents of the attorney) will qualify under the act, within certain parameters. How the system will work: The Attorney General of the United States will set up a program through the U.S. Department of Justice that will make direct payments to the holder of the loans on behalf of the borrower. A borrower is qualified only if he or she is a prosecutor or public defender as defined by the statute and is not in default for any loan that is to be forgiven. The borrower will agree:

1. The borrower promises to remain employed as a prosecutor or a public defender for at least three years, unless involuntarily discharged. 2. If the borrower leaves voluntarily before the three year commitment is complete, he or she must repay any benefits received to the Attorney General. 3. If the borrower owes money to the Attorney General because of ending employment early, the government may use whatever means necessary to seek recovery. 4. The Attorney General may waive the right to recover money in certain very limited circumstances. 5. The repayments of loans are subject to the availability of funds pursuant to government appropriations. The amount paid per borrower will not exceed $10,000 per year or $60,000 in total. Priority for enrollment in this program will be given to those least able to repay their loans, but there will be fair allocation between public defenders and prosecutors throughout the country. The initial term will be for three years, but once the first term is completed the borrower and the Attorney General can enter into a new agreement. The statute (continued on page 14)

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Top 10 Attorney Qualities & Characteristics that Build Trust

Brian Hammer, Esq. The Likeable Lawyer, © 2004-2007 (used with permission). www.likeablelawyer.com

Just about every aspect of law practice involves a lawyer having a vision for what he or she wants to accomplish. This could be on behalf of a client, oneself, the firm, one's community, or otherwise. Once the objective is clear, the lawyer's next task is to attempt to influence, persuade and lead others toward taking voluntary action in support of the lawyer's vision. Whether a jury argument, contract negotiation, mediation, gaining a new client, or leading staff or anyone toward the result envisioned by the lawyer, people are far more willing be led, influenced and persuaded by someone they trust. Think of trust as a metaphorical bank account. Every interaction we have with another is going to result in either a deposit to or a withdrawal from that account. It is important to realize that the deposit or withdrawal is not necessarily based on actual trust, but rather on how the person on the other end of the interaction perceived the interaction. The following are the 10 most popular trust-building responses: The Top 10 Attorney Qualities & Characteristics that Build Trust: Honesty and Candor: Lawyers consistently pick honesty as the most important quality in developing trust. And not only honesty in fact, but also expected is honest disclosure and candor. Reliability: A close second is expressed as: "follow through," "doing what one says," or "keeping one's promises." Reliability is absolutely required to maintain trust. What is expected is following through on one's commitments, and within a reasonable time. Competence: The third constant in the trust equation is competence and expertise. A corollary to this is that people trust those who are willing to admit when something is outside their area of expertise. Treats Others with Respect: This is multi-faceted, however, because what lawyers are talking about here is demeanor, talking at other people's levels, staying curious about others, and thinking about others as well as oneself. A Good Listener: In general, a good listener actively gives another their undivided attention, and listens at least twice as much as they speak. Acknowledging Other Perspectives and Views: Lawyers (and we can assume others) trust lawyers who are willing to openly and freely acknowledge opinions and interpretations other than their own. This characteristic is often linked to humility. Reasonable and Professional: Sometimes hard to define, but easily identified, acting "reasonably" and "professionally" builds trust. I'll leave it at that. Willingness to Admit Weakness: Although lawyers love to advocate their position, not every case is a winner, not every point righteous. Trust is built when a lawyer admits weakness as well as states strengths. Willingness to Accept Responsibility: Many lawyers, when confronted with bad news, a difficult conversation, or having made a mistake, will defend, blame, justify, rationalize, deny, or argue. Although some do this under the mistaken belief that this will protect reputation and trust, lawyers consistently report that trust is actually built when we admit mistakes and take full responsibility. Positive Reputation: Positive reputation is like inheriting a trust account with a positive balance. There are no one-time deals. What we do today will be remembered and talked about. This can help or hurt us profoundly and often in unexpected ways. A positive reputation is one of the greatest assets any person can have. It benefits not only career and success, but also contentment and esteem.

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THE DEFENDER NOTES FROM A SUMMER INTERN Max Petrunga

Interning at the public defender's office brings with it the mental and emotional highs and lows one might experience working at any law firm specializing in any of the various legal fields. The PDO, however, gives one the opportunity to study one of the most cutthroat, socially relevant, and certainly sexiest areas in the legal spectrum: criminal law. At the Public Defender's Office, interns stand behind the soldiers fighting for those who no one will fight for, arming them with the tools they need to "fight the good fight" in the interests of fairness and government accountability. Interns have the opportunity to do as much or as little as they choose working at the Public Defender's Office, executing tasks as simple as copying case files to ones as complex as writing appellate briefs or drafting motions to suppress. The experience and knowledge an intern at the Public Defender's office will gain simply from working one summer in the downtown office is more than they will get out of one year sitting in criminal law class. In my short time working for the PD's office, I received a crash course in the two foundational areas of the legal field, constitutional law and criminal procedure. Though not having studied either of these areas in school as yet, the tasks I have been assigned in my six plus weeks at this office have taught me so much about topics that I still considered foreign at the end of my first year of law school. In the times when I am not working on a research or writing subject for one of the attorneys, I have had the opportunity to watch criminal cases and listen to appellate arguments. Throughout it all, I have had the chance to gain an appreciation for an area of the law that was one of my least favorite subjects throughout the school year. Now -- after spending a summer at the public defender's office writing motions and doing trial research -- criminal law, and especially the area of criminal defense, is not only my favorite subject, but the one area that I will feel most comfortable and confident in practicing after graduation.

LOAN REPAYMENT FOR PUBLIC DEFENDERS

(continued from page 12)

is not retroactive; i.e., a borrower cannot seek to recover money from the A.G. for payments already made toward repayment of his or her student loans. Since the intent behind this Act is to recruit and retain qualified attorneys to work in public service as prosecutors and public defenders, Congress will receive reports on the impact of the Act on recruitment and retention after the first three years of this program. The Act authorizes an appropriation of $25 million during fiscal year 2009 and necessary sums for five years following. Congressional appropriation must be approved each year during the budget process for this program. Adequate funding to realize the full benefits of the Act is "authorized" but not guaranteed. Furthermore, the A.G. is authorized to issue the necessary regulations to implement this Act. It is therefore unclear when it will be possible for eligible attorneys to apply for loan repayment assistance. This article contains excerpts from a news release issued by the National Legal Aid & Defender Association (NACDL).

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PRETRIAL PUBLICITY

Glenn Steimer

It's been an interesting summer at Pretrial Services (the one at the Public Defender's Office -- not the guys at the former Bail Agency, et al, who appropriated the name). The main theme is "change," as professional turnover in the Office this year is at the greatest pace as I've seen in my 25 years at the PD's. One-half of Pretrial attorneys have been in the Office less than nine months. The good news is that we continue to be blessed with excellent talent and enthusiasm. We salute Adam Hill (Captain, JAG, US Army Reserve) as he returns from an 18-month tour of duty in Iraq. Adam received the Bronze Star, among other honors, for his combat zone performance, and has been named one of only five attorneys to receive the Younger Federal Lawyer Award this year at the Federal Bar Association convention in Huntsville, AL on September 20, 2008. We also salute Barry Wingard (MAJ, JAG, Air Force, PA Nat'l Guard) and wish him Godspeed as he begins a 12 month tour of defending enemy combatants at Guantanamo Bay, Cuba. The Expedited Disposition Plea (EDP) program at Pittsburgh Municipal courts has been enhanced by the addition of Legal Assistant Simone Temple. Simone will aid Hart Hillman, who has been operating a one-man show, to assure our clients are not in the "Rush to Judgment" program. Simone works in the little office across the hall from the main courtroom, so stop in and say hello the next time you're in City Court. In other pretrial section news, we are working to consolidate conflict information and open access among our pretrial, trial, and intake attorneys and staff to the conflict database we maintain on the shared "K" drive (Pretrial Conflict Referral file). Also, we are planning to replace our tape recorders with new digital recording devices, so that in the future, we can store and exchange audio files of preliminary hearings in our soonto-be-improved Legal Edge database system.

"It is the spirit and not the form of law that keeps justice alive." Justice Earl Warren

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Office of the Public Defender 542 Forbes Ave. 400 County Office Building Pittsburgh, PA 15219 412-350-2403 Comments and submissions should be directed to the Editor-In-Chief, Victoria Vidt, at [email protected]

PENNSYLVANIA NOT ALONE IN NEEDING AN INCREASE IN STATEWIDE PUBLIC DEFENSE SPENDING

Victoria H. Vidt

This past June, the National Legal Aid & Defender Association (NLADA) published a report entitled "A RACE TO THE BOTTOM: Speed & Savings over Due Process: A Constitutional Crisis", which evaluated the state of Public Defense representation in Michigan. The report notes that Michigan ranks 44th in the nation for public defense spending, spending only $7.35 per capita. Because of this lack of adequate funding and a failure to adhere to national standards, the Executive Summary of the Report concludes, "the state of Michigan fails to provide competent representation to those who cannot afford counsel in its criminal courts. The state of Michigan's denial of its constitutional obligations has produced myriad public defense systems that vary greatly in defining who qualifies for services and the competency of the services rendered. Though the level of services varies from county to county ­ giving credence to the proposition that the level of justice a poor person receives is dependent entirely on which side of a county line one's crime is alleged to have been committed instead of the factual merits of the case ­ NLADA finds that none of the public defender services in the sample counties are constitutionally adequate." (Excerpt reprinted with the permission of the National Legal Aid & Defender Association.) Despite the U.S. Supreme Court's decision in Gideon v. Wainright establishing that states are constitutionally required to provide for public defense, Michigan's current system (like that in Pennsylvania) requires counties to use their own budgets. With many counties at their breaking points, Michigan courts increasingly value speed over quality, leading many advocates in the Ottawa County criminal justice community to describe the system as providing "McJustice." The report found that counties across the state failed to meet the vast majority of the American Bar Association's Ten Principles, which are considered the national standard for indigent defense. NLADA's conclusions were reached after an extensive year-long study of indigent defense services in ten representative counties in partnership with the State Bar of Michigan and on behalf of the Michigan Legislature. See the report in its entirety at http:// www.mynlada.org/michigan/michigan_report.pdf.

We're on the Web! http://www.county.allegheny.pa .us/opd

"True peace is not merely the absence of tension: it is the presence of justice." Dr. Martin Luther King, Jr.

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