FINAL REPORT

Equal Justice America Disability Rights Clinic

John Jay Legal Services

Pace University School of Law

June 30, 2003

 

I.            Introduction

            Completing its third year of operation, the Equal Justice America Disability Rights Clinic at Pace University School of Law continues its dual mission of training future lawyers and providing free legal services to low income disabled persons of all ages. It has become an integral part of the Law School's Clinical Program located at John Jay Legal Services and its Health Law and Policy Program.

            The Health Law and Policy Program provides Pace law students with the opportunity to gain specialized knowledge in the rapidly expanding field of health law.  A Certificate in Health Law and Policy is awarded to those students who demonstrate proficiency in the field by taking a prescribed number of required and elective courses relevant to the practice of health law and related social and economic policy issues.

            Pace Law School's clinical offerings enable students to gain proficiency in lawyering skills while representing clients pursuant to a Student Practice Order issued by the Appellate Division, Second Department of the New York State Supreme Court.  Under supervision of clinical faculty, students enrolled in clinical courses may perform all lawyering functions normally reserved to lawyers admitted to practice.  In addition to the Equal Justice America Disability Rights Clinic, clinical offerings are available in criminal defense, securities arbitration, and the prosecution of domestic violence in cooperation with the Manhattan District Attorney's Office. 

II.        Equal Justice America Disability Rights Clinic 

            The Equal Justice America Disability Rights Clinic provides students with the opportunity to learn and apply lawyering skills as well as the substantive law relating to the rights of disabled persons in a highly controlled and intensively supervised legal practice environment.  For most students, it is their first experience with law as lawyers. 

            In a weekly seminar, students learn and practice lawyering skills such as interviewing, counseling, negotiation, fact investigation, and conducting administrative hearings.  The learning of these skills is integrated with relevant substantive law, including eligibility for the government benefit programs available to disabled persons (Social Security Disability, Supplemental Security Income, Medical Assistance) and the planning tools available to disabled persons and their families (guardianships, wills, special needs trusts).  The seminar also provides the opportunity for students to present issues and choices from the cases they are working on and benefit from the critical reflection of their colleagues.  Ethical issues are discussed as they arise in individual cases with particular emphasis on the complexities of working with clients of diminished mental capacity.  Students learn how to read and interpret medical records and work with medical personnel to describe a client's medical condition using legally relevant terminology.  Students also learn how to work with other helping professionals, such as social workers, doctors, nurses and advocates, to identify and meet clients' non-legal needs.  Readings from an excellent text[1] for clinical students are supplemented with readings directly relevant to disability law.  A copy of the syllabus for the Fall, 2002 semester is attached.  During the spring semester, in addition to their individual caseloads, all students worked collaboratively on a particularly challenging case.  This group effort enabled the Clinic to handle a case that could not have been managed by one or two students and gave the students the opportunity to learn about and put into practice the very important lawyering skill of collaboration.

            Clinic students, either individually or in teams, have primary responsibility for the conduct of their assigned cases.  The student lawyer is responsible for planning each lawyering activity, reviewing the plan with the Clinic Faculty Supervisor, conducting the activity and finally, reflecting on the experience and the usefulness of the preparation.  Throughout the year, each student engages in client interviewing and counseling, fact investigation and witness interviewing, legal research and analysis, and drafting a variety of legal documents and instruments.  Most students have the opportunity to appear before a court or administrative tribunal.

            For the 2002-2003 academic year, the Clinic was offered only as a two-semester course.  This change was in response to our experience that one semester (14 weeks) was too short a time for students to master the building block lawyering skills and go on to apply them meaningfully on cases involving actual clients.  Students still have the option of taking the Clinic for between three and six credits each semester.  The three credit option is especially appropriate for part-time and evening students, who may be working full-time in addition to attending law school.  All students participate in the seminar and each student's case load is tailored to his or her interests and time constraints.  For example, a student who is not available during normal working hours will be assigned to cases which involve transactional work only, which can be performed during the evening hours and weekends.  Other students with more flexible schedules are assigned cases which may involve day-time appearances before courts or administrative tribunals.  Students enrolled in the Clinic for three credits are expected to devote eight to ten hours per week to clinic responsibilities.  The time commitment for students enrolled for six credits is 15-20 hours per week. 

            During the 2002-2003 academic year, a total of six students were enrolled in the Clinic.    One student is working over the summer to handle matters which were not completely resolved at the end of the academic year.

            The cases handled involved a variety of legal issues faced by disabled persons and their families.  Clients were referred by several social service agencies with which we have formed alliances during the past four years, including Westchester ARC, New York Legal Assistance Group, DIHR (Dignity, Independence and Human Rights, a non-profit advocacy serving the developmentally disabled, their families and providers), Westchester Independent Living Center, Westchester Putnam Legal Services, Service Office of White Plains, Richmond Community Services, Visiting Nurse Service of New York, Westchester Residential Opportunities and New York Assistive Technology Advocacy Project.  Several former clients have returned to us for additional assistance as they developed new legal needs.  All of the clients are low income. They are unable to pay for the legal help they need and were unable to secure representation from other sources of free legal services.

Social Security Cases

Comments to the Appeals Council were submitted on behalf of two clients who had received unfavorable decisions after hearings before a Social Security Administration Administrative Law Judge.  In each case, the student attorney identified errors of law and fact made by the Administrative Law Judge and wrote a brief discussing those errors and urging reversal.  Decisions in these two cases are pending.

Students handled applications for waiver of Social Security overpayments for two clients.  In each case, the client was charged with an overpayment of benefits. Such overpayments may be waived by the Social Security Administration only if the overpayment was not the beneficiary's fault and repayment would be a hardship for the beneficiary.  In each case the student attorneys ascertained that the overpayment was the result of error by the Social Security Administration and worked with the client to demonstrate that repayment would create a hardship.  Decisions in these cases are pending.

Lifetime and Estate Planning

Students prepared wills for two elderly clients, who, though of very modest means, wanted to choose who would receive their property after death.  The clients were also counseled on the desirability of appointing others to make decisions for them in the event they became incapacitated during their lifetimes.  One client had already made these arrangements.  The students drafted a power of attorney and health care proxy for the other client.

Guardianships

We worked with four families of disabled adults who needed legal authority to make financial and other decisions for their family member.   In each case the family members were extensively counseled about the options available to them and how to manage their relative's funds without jeopardizing their eligibility for government benefits. 

After extensive counseling, one family decided to delay legal action since their relative wanted to maintain his independence and all of his needs were being met through informal means. 

We are assisting the brother of a mentally retarded woman who recently moved from a group home to a nursing home.  The sister's personal allowance had accumulated and her brother will ask the court's permission to use that money to prepay his sister's funeral.  Once he becomes his sister's guardian, our client will also be able to participate fully in making medical decisions for his sister. 

We are also assisting a former client who wishes to appoint a new standby guardian for her two disabled daughters.  The standby guardian who was appointed in the original proceeding has moved out of the area and our client wants to make sure that someone is authorized to take care of her daughters if something happens to her.

The students' major collaborative project involved assisting the mother of a young disabled adult who had received a modest structured settlement.  The funds are not enough to pay for the medical and other services the client's son needs, but preclude eligibility for Medicaid.   The students researched the options available to the mother and counseled her extensively on the responsibilities she would have as her son's guardian and trustee.  The students have drafted a supplemental needs trust and are preparing to obtain approval from the Surrogate's Court for the establishment of the trust and the appointment of our client as her son's guardian.

We assisted a mother who had been appointed her son's guardian resign from that position. Our client did not have the ability to manage her son's funds and was victimized by family members and friends.   Last spring, the students prepared an accounting for the client and a petition asking the Supreme Court for permission to resign as guardian.  The Court appointed a new guardian for our client's son who has taken steps to secure needed health care and other services.


III.  Plans for the Future

Over the summer, one student is assisting with ongoing cases on a volunteer basis.

Eight students have enrolled in the Clinic for the entire 2002-2003 academic year.  We will continue to offer high quality representation to disabled persons and their families being served by cooperating social service agencies.  Moreover, we anticipate that the Clinic’s graduates will continue to use the skills they developed to effectively represent disabled clients once they become practicing attorneys. 

[1] Stephan H. Krieger, et al., Essential Lawyering Skills (Aspen Law & Business, 1999).