SCOTUS rules there is no automatic right to lawyer in US civil court cases

By Agence France-Presse
Monday, June 20th, 2011

WASHINGTON (AFP) – The US Supreme Court ruled Monday that states did not have an automatic duty to provide counsel in civil courts in the case of a divorced father who was jailed for failing to pay child support.

By a majority 5-4 vote, the justices found that while the South Carolina father's rights had been violated because he was not given free counsel, US states did not have to provide such advice in all civil contempt cases.

The case was being highly watched and had become emblematic of what civil rights groups have called a trend towards "debtors' prisons" in America.

In the case before the Supreme Court, Michael Turner had been ordered to pay $51.73 a week in child support. But he had regularly fallen behind, and spent short spells in prison.

On his fifth infraction, the South Carolina family court sentenced him to six months in jail. But on his release he was $5,728 in arrears, and was then sentenced to 12 months in jail.

Turner appealed arguing his constitutional rights had been violated as he had not been given access to free counsel -- as is normal in criminal cases -- to argue that he had been unable to pay the funds due during his jail term.

In Monday's majority decision, the court ruled that a constitutional amendment "does not automatically require the State to provide counsel at civil contempt proceedings to an indigent noncustodial parent who is subject to a child support order, even if that individual faces incarceration."

It found that such a requirement could put the other parent at a disadvantage if they could not afford a lawyer creating "an asymmetry of representation that would alter significantly the nature of the proceeding."

Instead, recognizing that ability to pay is key in many child support cases, it called on the government to ensure safeguards were put in place, to significantly reduce the risk of an erroneous deprivation of liberty."

The ruling triggered a sharp response from the Constitution Project, a bipartisan group working for reform of the justice system.

The ruling "undermines the fundamental fairness of our justice system, putting Americans in danger of losing their liberty simply because they cannot afford a lawyer," it said in a statement.

"Michael Turner was incarcerated for one year because of his failure to pay court-ordered child support. Although his inability to pay would have constituted a legal defense to incarceration, Mr. Turner was unable to prove his inability to pay to the court.

"With this decision, the Supreme Court has effectively endorsed the expansion of the unjust use of debtors' prisons in America," it added.

Facebook Used by Courts to Find Those Who Are ‘Only Online’

By Heather Smith - Bloomberg Media - June 07, 2011,

June 7 (Bloomberg) -- Two years after an Australian lawyer caused a stir by sending a foreclosure notice via Facebook, the practice of online legal service is spreading as a means for courts to keep their dockets moving.

Courts in New Zealand, Canada and the U.K. have adopted the Australian example to avoid having cases stall when people can’t be located and served in person. Lawyers said the U.S. may not be far behind in using the world’s most popular social- networking service.

“There are people who exist only online,” said Joseph DeMarco, co-chair of the American Bar Association’s criminal justice cyber crime committee, and a lawyer at New York-based DeVore & DeMarco LLP. Being able to serve documents by social- media networks would be a useful tool, he said.

While Facebook Inc. is under regulatory and legal scrutiny in countries including the U.S., South Korea and Germany for failing to protect its 694 million users’ data, privacy advocates said that serving court notices by mail or in person often already provokes privacy complaints. Therefore using Facebook doesn’t raise any new issues.

“There are going to be privacy concerns, but in some respects they’re almost inescapable,” said Mark Rotenberg, president of the Electronic Privacy Information Center in Washington. Someone “is going to be subject to legal service, even though they may not be happy about it. But if they are properly notified the law’s primary concern is addressed,” whether the notice arrived via Facebook or not.

Reliable, Secure

The Palo Alto, California-based company may find legal papers served via its system a welcome recognition of the security of its internal messaging function.

Following the 2008 foreclosure case, spokesman Barry Schnitt said the company was pleased to see the Australian court validate Facebook as a reliable, secure and private communication medium, the Associated Press reported. Andrew Noyes, a Facebook spokesman, declined to comment on its recent use as an alternative means of delivering court documents.

“It seems only logical now that tools like Facebook or Twitter be used” to contact people who can’t be traced using traditional means, said Daniel Hamilton, director of Big Brother Watch in London, noting such efforts don’t violate personal privacy. “Now is it desirable? No.”

The judge in the Canberra case required lawyers to serve a foreclosure notice on the couple at their home address and a secondary address, as well as via Facebook, said Archie Tsirimokos, a managing partner at Meyer Vandenberg Lawyers who represented creditor MKM Capital.

Calls, Faxes

Since then, courts have grown more lenient in approving the use of Facebook. In March, Hilary Thorpe, a lawyer in East Sussex, England, persuaded a British court to allow her to serve a woman solely through her Facebook account, after showing that calls, faxes and visits had failed to track her down.

The people in both the U.K. and Australian cases were successfully notified in the eyes of the court, the lawyers said. Tsirimokos said that “within a day” of sending the notice, the recipient’s privacy settings in the Australian case were tightened, showing the debtors got the notice. MKM won a court order and then seized and sold the house.

Thorpe, who sent the notice via Facebook’s private message system, said “it was a matter of minutes for the debtor to respond to the e-mail,” allowing the case to move ahead.

U.S. lawyers say it would be helpful if their courts allowed the practice, and privacy experts don’t see it as a concern because U.S. court documents are already public.

Unethical Friending

The challenge would be to collect enough proof to convince a court the accountholder is the right person and the page is checked often enough to ensure it’s a fair path of notification, DeMarco said. This would need to be done without violating ethics codes that would prevent lawyers from “friending” the target under false pretenses to get past security settings.

Not everyone with a Facebook page visits the site regularly, as seen with statistics comparing the number of users, tracked by the website Socialbakers.com, with the number of visits, tracked by ComScore Inc. Of the 150 million U.S. users, there were just over 145 million unique visitors there. In the U.K., Facebook’s third-largest market with 29.5 million users, there were 27.8 million visits, according to ComScore.

“Nothing on its face in New York state or federal law precludes it,” DeMarco said.

There are countries, like France and Germany, where electronic delivery isn’t allowed in any form. French law requires delivery in person.

“It wouldn’t be admissible procedurally to send a message by Facebook,” said Matthieu Bonduelle, head of France’s Magistrates’ Union.

English court rules permit electronic document service, said Danvers Baillieu, a technology-law specialist in London.

“As far as the law is concerned, it’s just a method of delivery,” he said. “The precise form of technology is neither here nor there.”

Bad Publicity Forces Lawyers Out of Anti File-Sharing Cases

Bad Publicity Forces Lawyers Out of Anti File-Sharing Cases
Written by enigmax on April 10, 2010

A British law firm, which only recently entered the file-sharing settlement letters business, has withdrawn due to masses of bad publicity. Tilly Bailey & Irvine, who tried to rewrite history on its Wikipedia page to remove its connection to this work, say that they fear the rest of their business could be damaged.

Following the likes of Davenport Lyons and more recently ACS:Law, lawyers Tilly Bailey & Irvine (TBI) made their first steps into the file-sharing settlements market this year.

Since TBI has been around for some 170 years, appeared to be a traditional law firm with previously good reputation, but was now publicly representing porn-industry clients in a controversial practice, TorrentFreak earlier asked the company the following question:

“Taking into consideration that when operating almost identical schemes both ACS:Law and Davenport Lyons became the subject of SRA investigations, coupled with the Lords labeling this type of scheme “legal blackmail“, are Tilly Bailey & Irvine concerned about tarnishing their hard-earned reputation?”

TBI declined to answer this and the rest of our questions but were quickly labeled by the UK Lords discussing the Digital Economy Bill as “new entrants to the hall of infamy” and their activities labeled “an embarrassment to the rest of the creative rights industry”.

The pressure continued to build when settlement letter recipients wrote complaints to the Solicitors Regulation Authority (SRA) so it didn’t really come as a surprise when we discovered TBI had been trying to re-write history by modifying their Wikipedia page recently.

At the time we wondered if this meant the company had abandoned its action against file-sharers. That question has now been answered by UK consumer group Which?

In a letter sent to the SRA on April 1, TBI wrote: “We have been surprised and disappointed at the amount of adverse publicity that our firm has attracted in relation to this work and the extra time and resources that have been required to deal solely with this issue.

We are concerned that the adverse publicity could affect other areas of our practice and therefore following discussions with our clients, we have reluctantly agreed that we will cease sending out further letters of claim.”

Deborah Prince, head of in-house legal at Which? said that she is really pleased that TBI has seen sense and left this arena.

“Hopefully, other law firms thinking of going down a similar route will begin to realise that although this work can generate vast financial rewards for law firms and their clients, it can also bring a lot of adverse publicity simply because the practice is inherently unfair and unethical.”

Consumer group BeingThreatened.com, who have worked relentlessly to assist those sent letters by TBI, ACS:Law and Davenport Lyons, also welcome the news, but want TBI to go further.

“We are cautiously optimistic that it marks the end for the innocent people who have been in touch with us to complain of the accusations. However, we believe that an apology is owed to those individuals, and would encourage TBI to come forward and say sorry,” they told TorrentFreak

“They’ve already taken the difficult step of admitting to their error, this extra step would serve to restore some confidence that the legal system is not merely there to be abused for making money through volume litigation against the innocent and unaware.”

With this announcement by TBI, only ACS:Law remain in this type of business in the UK, so are they concerned about damage to their reputation? Absolutely not. We’ll go into more details in our report next week.