Fiscal Year 2006 Annual Report on the Operations and Accomplishments of the Office of the General Counsel

[Excerpt] The Equal Employment Opportunity Act of 1972 amended Title VII of the Civil Rights Act of 1964 (Title VII) to give litigation authority to the Equal Employment Opportunity Commission and provide for a General Counsel, appointed by the President and confirmed by the Senate for 4-year term, with responsibility for conducting the Commission\u27s litigation program. Following transfer of enforcement functions from the U.S. Department of Labor to the Commission under a 1978 Presidential Reorganization Plan, the General Counsel became responsible for conducting Commission litigation under the Equal Pay Act of 1963 (EPA) and the Age Discrimination in Employment Act of 1967 (ADEA). With the enactment of the Americans with Disabilities Act of 1990 (ADA), the General Counsel became responsible for conducting Commission litigation under the employment provisions of that statute (Title I; effective July 1992). The mission of EEOC’s Office of General Counsel (OGC) is to conduct litigation on behalf of the Commission to obtain relief for victims of employment discrimination and ensure compliance with the statutes that EEOC is charged with enforcing. Under Title VII and the ADA, the Commission can sue nongovernmental employers with 15 or more employees. The Commission’s suit authority under the ADEA (20 or more employees) and the EPA (no employee minimum) includes state and local governmental employers as well as private employers. Title VII, the ADA, and the ADEA also cover labor organizations and employment agencies, and the EPA prohibits labor organizations from attempting to cause an employer to violate that statute. OGC also represents the Commission on administrative claims and litigation brought by agency applicants and employees, and provides legal advice to the agency on employment-related matters

The Constitutional Failure of the Strickland Standard in Capital Cases under the Eighth Amendment

Criminal defendants are guaranteed the right to effective assistance of counsel under the Sixth Amendment, but the Supreme Court\u27s decision in Strickland has given appellate courts overly broad discretion to determine exactly what constitutes ineffective assistance of counsel. Murphy reviews the right to counsel and discusses the crucial role of counsel in capital cases throughout the trial and appellate processes

Implications of Gideon v. Wainwright on American Society

“Your Honor, I request this Court to appoint counsel to represent me in this trial,”1 stated defendant Clearance Earl Gideon before the Judicial Circuit Court of Florida. The court replied, “Mr. Gideon, I am sorry, but I cannot appoint counsel to represent you in this case. Under the laws of the State of Florida, the only time the court can appoint counsel to represent a Defendant is when that person is charged with a capital offense. I am sorry, but I will have to deny your request for counsel to defend you in this case.”2 Before 1963 there was no standard in American state courts requiring counsel as an essential fundamental right. Gideon v Wainwright is a landmark case in Supreme Court history because it was a vital step in the fight for the right to legal counsel. The court unanimously ruled that all state courts were required under the Sixth Amendment, of the United States Constitution, to provide counsel in all criminal cases for defendants who were not able to afford counsel.3 Gideon overruled a twenty year old Supreme Court decision in Betts v Brady by establishing that due process as incorporated in the Fourteenth Amendment obligated the states to furnish counsel in every case. Gideon v Wainwright has helped to remove vulnerabilities and ambiguities in the criminal justice system. It further protects American society by helping to provide an egalitarian system of administering justice, setting a clear standard for state courts to follow and allowing room for future developments in the right to counsel

Validating the Right to Counsel

This Essay, written as part of a Symposium celebrating the 50th Anniversary of Gideon v. Wainwright, focuses on the elaboration of the Gideon right in the context of ineffective assistance of counsel litigation. First, I describe how ineffective assistance of counsel claims came to dominate and define federal habeas corpus litigation, changing the structure of state post-conviction rules in reaction to the new prominence of ineffective assistance of counsel claims at the federal level, expanding to consider assistance of counsel during plea bargaining, and raising complex questions for post-conviction courts. Despite the ubiquity of ineffective assistance of counsel claims, the constitutional test is shot through with a prejudice analysis, as well as with a set of strong substantive blinders: judgments that only certain types of failures by counsel will be regulated. Second, I ask whether the approach towards judging effectiveness of defense counsel could be “validated” by social science evidence, or at least be better informed by it. The bar has increasingly engaged with science and social science to provide improved standards for effective defense representation. In turn, social scientists might more closely study the effectiveness of defense lawyering across stages of the criminal process. Over time, this work may help to validate the right to counsel

Housing Justice: What the Experts are Saying on New Yorkers' Right to Counsel in Eviction Proceedings

There is growing momentum for establishing a right to counsel in New York City for low-income people who face losing their homes in legal proceedings. The Right to Counsel NYC Coalition formed in 2014 to advocate for the right to counsel and its ranks have been steadily growing. New York City's political leadership has been outspoken on the importance of counsel in eviction proceedings and is taking major concrete steps to expand the availability of counsel. These include greatly increased funding for civil legal services and the City Council's passage, on May 27, 2015, of Intro 736, which establishes a first-ever Office of the Civil Justice Coordinator. Most importantly, the New York City Council and the de Blasio Administration are considering legislation that would make New York City the first jurisdiction in the United States to establish a right to counsel for low income people who face losing their homes in legal proceedings. The legislation, Intro 214, introduced by Councilmembers Mark Levine and Vanessa Gibson and co-sponsored by a wide majority of the members of the Council, would (with anticipated amendments) guarantee counsel to households below 200% of federal poverty guidelines in both eviction and foreclosure proceedings

Engaging Outside Counsel in Transactional Law Clinics

This article examines the plurality of objectives and methods by which transactional law clinics collaborate with outside attorneys to competently represent their organizational clients on a wide range of legal issues. Some transactional law clinics rely on outside counsel as informal legal advisors or consultants; others collaborate with outside counsel for the development of community projects or referral of legal work; many transactional law clinics engage outside counsel as “local counsel” when assisting a client in other jurisdictions or internationally; still others engage outside counsel more formally to assist in student supervision of client work. For some, the idea of a clinic working with outside counsel poses a credible threat to clinical pedagogy, clinical faculty status, and the permanent integration of clinics into the law school curriculum. To others, collaborating with outside counsel is a part of everyday client representation, and may be necessary for ethical and professional responsibility reasons. While identifying and discussing the import of these concerns, this article asserts the benefits of collaborating with outside attorneys for law school clinical programs and proposes a framework for deciding whether and how to collaborate with outside attorneys. Specifically, this article sets forth a deliberate and systematic decision-making process for the clinical law professor’s use. The decision-making process proposed is context-specific and dependent on the objectives of the clinical law professor. This article further recommends proactive steps that a clinical law professor can take to facilitate the clinical law professor’s objectives if she decides to engage outside counsel, such as entering into a Memorandum of Understanding to solidify roles and responsibilities of all parties involved in the collaboration. While this article examines collaboration with outside counsel primarily through the lens of transactional law based clinical programs, our discussion provides helpful guidance to law school clinical programs generally

Custody: Kids, Counsel and the Constitution

Fifty years ago, the United States Supreme Court in In re Gault held that children have the constitutional right to traditional counsel in cases where their physical liberty interests are at stake. As a result, children are provided counsel during the adjudication phase of delinquency proceedings in order to ensure protection of their rights. Gault did not, however, extend the automatic right to traditional counsel to other contexts in which children most frequently appear in court: family law cases. This Article explores whether a child’s right to traditional counsel should be extended to children in the private custody context. The article reviews cases that have explicitly expanded children’s rights since Gault, both children’s cases expanding their rights in various contexts and adults’ cases with implications for children in the family context. In addition, it reviews current inconsistencies in practice, rules and standards related to children’s attorneys. It concludes that children’s constitutional rights require traditional client-directed advocacy by attorneys in custody matters, and recommends a role of counsel that protects constitutional rights while ensuring consistent and ethical advocacy by children’s attorneys

The Effective Assistance of Counsel: Chance or Guarantee?

This Comment reviews the historical development of the right to effective assistance of counsel for criminal defendants as defined by the Supreme Court, and discusses the various standards applied by lower federal courts. This Comment next examines United States v. Decoster, which provides the most comprehensive judicial analysis of the right to effective assistance of counsel at this juncture in time. The standards applied by the New York State courts are also analyzed. Finally, the author recommends uniform guidelines for evaluating claims of ineffective assistance of counsel

The Duty to Investigate and the Availability of Expert Witnesses

To assess the likelihood that the proposed rule will assure better representation for criminal defendants, this Article proceeds as follows: Part I provides a general review of the effective assistance of counsel standard. Next, Part II focuses on the specific duty of defense counsel to investigate. Part III then examines the constitutional right of indigent criminal defendants to have expert assistance at government expense. Part IV proceeds to examine proposed Rule 707 and argues that it will not accomplish its purpose unless criminal defendants and their counsel have access to expert resources that match those relied upon by the government. Finally, Part V concludes by asking an overarching question that every judge and indigent defense lawyer ought to ask: Can defense counsel have a fair opportunity to investigate, appropriately assess, and challenge forensic evidence and testimony without the assistance of expert testimony

The Independent Counsel Statute: A Legal History

Priester et al provide a comprehensive legal history of the independent counsel statute from its inception in 1978 until its apparent last hurrah in 1999. They also explore the role of the independent counsel in the history and practice of the government\u27s evidentiary privileges