On April 15, 2013, I was thankfully in Palm Springs with my family for a wedding. I say “thankfully” because my husband is an ultra-marathoner. He’d wanted to do the Boston Marathon, but we had to attend my cousin’s wedding clear across the country. Being three hours behind, I woke up to the unbelievable. Just like on 9/11, at first I couldn’t process the images I was seeing. And then red. We all saw red. I yelled to my then nine-year-old son to leave the room.
“That’s blood on the pavement on Boylston,” I said.
I hated this feeling on 9/11. And I hated this feeling on 4/15. This feeling of the world crashing. Of incapacity. Of the deepest empathy for others you can feel—and yet, the competing certainty you are helpless to help anyone. Later, Fox, CNN, all of them, kept showing pictures of Martin Richard, the boy who died. A boy. My son cuddled close on the couch. I wept. We went home after the wedding, and life went on as life goes on, and work got busy as work gets busy. And I remained unhelpful.
A few months later, on June 13, 2013, the Boston Bar Association reached out to the Pro Bono committee at Ropes & Gray seeking assistance for a bombing victim with her One Fund application. I’d need to meet the victim in person in Salem, New Hampshire, the very next day; she couldn’t converse on the phone given her hearing loss from the bombing. Being from New Hampshire and suddenly remembering that awful feeling of incapacity, I snapped at the request, hopeful I could do something. Plus, she was only in Salem. Salem doesn’t require a plane ticket or visa or passport like a lot of my regular work. It was literally the least I could do.
Gretchen greeted me kindly at her husband’s office in Salem. She leaned in with her ear to listen to my “hello,” and then turned to lean into my face to shake my hand.
“You’ll need to speak slow so I can read your lips,” she said.
I started thinking about my mother in these initial minutes with Gretchen. Trying to explain what I do for a living to my mother, who for as long as I can remember denied having a hearing problem, used to dissolve into a mess of loud words. A mismatch of understanding at a raucous family dinner table.
“What?” she’d squawk loudly, even though she sat to my caddy-corner left. Her face would scrunch and her eyes would close.
“….[blah, blah, blah…..] E-Discovery….terabytes….computer forensics…”
“Oh, Never. Mind,” she’d give up, shaking off her obvious annoyance—at herself, at me, I never understood.
The family conversation would go on around her, interjected here and there by her “What’s” until she’d give up, leave the table, and do the dishes. I don’t think I noticed any of this until now, in retrospect, after working on a Boston Bombing case.
The One Fund application was actually pretty straightforward. Filling it out, I figured, would be very unlike the work required to craft a preservation plan for firewall logs and ten databases in a data breach case. I figured I’d be in and out in half-an-hour. And yet, it was not until hours later when we finished the application. We spent hours talking, loudly, slowly, repeating phrases, reading lips, undergoing translations of English to English, organizing a labyrinth of medical records and, mostly, distilling a very emotional account into a sterile, one paragraph blurb on her objective, physical injury. For Gretchen, a human with a real problem larger than simply saying “hearing loss,” it took a while to uncoil the events of April 15th and how they changed her life, physically and emotionally.
Gretchen had already been diagnosed before the Marathon with hearing loss in both ears, the right side suffering from profound loss; the left, also functioning at a deficit, was considered her “good ear.” So, in moving through the thick Boylston crowd with her fifteen-year-old, she worked hard to focus on keeping her son close to her side.
The first bomb exploded, crashing the air. She turned her “good ear” toward the blast, unsure of what was going on. Then, the second bomb ripped through the screaming crowd and this is what did her in. Now both ears were damaged.
I wanted the One Fund deciders to know how hard it was to be left out of conversations with your own sons. To hear wind instead of words. Ringing instead of crisp birdsong. I wanted them to “see” this invisible injury. One that now, after the blasts, left Gretchen unable to differentiate peripheral noise, unable to hold conversations with multiple people, left her with increased tinnitus and multiple sounds running constant in her head: crickets, faucets, wind, ringing. Noises. Constant noises. Not distinct voices. And how voices too, they were all different. Even her husband’s. Even her own. I wanted them to understand that now, Gretchen could no longer enjoy any music, could not separate the different notes. I tried to imagine working, driving, cooking, running without the tinkling of the piano, the hypnotic waves of a cello, the thud-thud of motivating Hip-Hop, or the soul-soothing guitars of folk. I wanted everyone to understand how Gretchen could never escape it—because it was always there, absolutely there, yet invisible to everyone else.
But, given the triage nature of the One Fund application—necessary to distribute funds ASAP to those in serious need—we had work to do. In other words, we had to say how the sector of the hard drive was physically damaged, objectively prove it, and seriously distill, almost avoid, the frustrating, very real emotional side of how business stops when computers break. As I explained this to Gretchen, and her husband handed tissues for her tears, and as I put her jumble of medical records in chronological order and in the best objective light, I watched her chin quiver and her fists clench. I watched her retreat to her inner world.
I thought of my mom.
Gretchen was approved by the One Fund for Category D and received the pre-set distribution of funds. She is thankful for the donations. And certainly we all agree the focus of the Fund should continue to devote resources and charity to those most critically injured and those who suffered loss of life. As for hearing loss victims, this too is a lifetime cost. And a lifetime burden. There is no cure. And it’s not going away.
A few months ago, the Boston Bar Foundation’s Society of Fellows asked me to address how helping a Marathon victim impacted me. It impacted me professionally and personally. Professionally, I am sure I am just a pin in the hard drive, but I do have a pulse and I have a new knowledge on an invisible injury. Personally, I hope I’m a better daughter. How happy I truly am now to see my mother engaged and smiling, sitting with us at the table, wearing her hearing aids. I am better able to understand what she has gained.
Shannon Capone Kirk is a Chambers-ranked E-Discovery Counsel at Ropes & Gray and Professor at Suffolk Law. Shannon’s international practice manages electronic data in litigation.
Facilitating the “Fresh Start”: Representing Pro Bono Bankruptcy Debtors Through the Volunteer Lawyers ProjectPosted: January 7, 2014
by Meg McKenzie Feist and Megan B. Felter
Our potential client is visibly nervous as we show her to the conference room where we will hold an initial meeting to discuss her financial situation. She looks alternately at us, the view out the window, the stack of invoices and bills she has brought with her, and her cell phone, which vibrates periodically to announce yet another creditor collection call. Following introductions, we ask simply, “What brought you here?” She is taken aback for a moment, obviously unused to the opportunity to offer her story without interruption. With some encouragement, however, she reveals the events and circumstances that brought her to our offices. Listening carefully, we realize that finances are but one aspect of the difficulties in her life, which include mental and physical disabilities and a history of having been physically abused. Unable to work, she relies on government benefits and feels powerless beneath the weight of her debts. By the end of the initial meeting, we have gathered the information necessary to determine whether we can represent her on a pro bono basis to consider debt relief, potentially through bankruptcy. As we walk her to the elevators and shake her hand goodbye, it is clear that she already feels a sense of relief. The rest is up to us.
The Volunteer Lawyers Project
Our experiences advising needy individuals on a pro bono basis with respect to their debt relief options under federal bankruptcy law have been deeply rewarding. In the greater Boston community, there exists a great need for lawyers to volunteer this service. Congress enacted bankruptcy laws to provide “honest but unfortunate” debtors with a “fresh start” from burdensome debts. For individuals who cannot afford a lawyer, however, this relief may be beyond reach. The Volunteer Lawyers Project (VLP) of the Boston Bar Association (BBA) facilitates access to justice by pre-screening and referring qualified individuals to a volunteer lawyer. The lawyer advises the individual in considering bankruptcy relief typically under Chapter 7, which is a court-supervised procedure by which a debtor receives a discharge of debts after his or her “non-exempt” property has been liquidated to pay creditors.
Individuals in Need
A volunteer lawyer can usually expect a pro bono case to have certain common features. First, most clients have very limited, often fixed, income. Some may be relegated to sporadic or part-time work after having lost a more stable job. Others may be forced to live on government benefits after becoming unable to work due to disability. Second, most clients have very limited assets. Typically, they do not own their homes and instead rent, sometimes with the assistance of a federal housing program. Although some clients own cars, many instead rely on public transportation. Indeed, in many cases, a client’s only assets may be clothing and household goods (e.g., bed, television, table, small appliances). These limited assets will likely be deemed “exempt” in the bankruptcy—that is, the client will be entitled to keep them instead of being forced to sell them to pay creditors. Finally, credit card debt is a common feature of most pro bono cases. Unsurprisingly, clients with limited income often use credit cards to make purchases when they do not have sufficient cash. Some clients may feel forced to use credit cards to pay for groceries at the end of the month or to cover unexpected expenses, such as car repairs. When a client misses a monthly payment, late charges and interest can quickly turn a modest balance into an unmanageable burden.
How Can Lawyers Help?
A volunteer lawyer may be able to assist a low-income debtor in finding a way out of overwhelming debt. At the initial meeting with the potential client, the lawyer must remember that the individual likely feels demoralized by his or her financial problems and anxious from creditors’ collection efforts. In many instances, the lawyer can help the situation initially simply by listening respectfully to the individual’s story.
The first step in any potential pro bono engagement is for the lawyer to check conflicts. Mindful of the high likelihood that a volunteer lawyer belongs to a law firm that in unrelated matters represents financial institutions who are creditors in the potential client’s bankruptcy case, the BBA in 2008 issued an ethics opinion analyzing conflicts in the unique context of bankruptcy. The opinion has served to encourage the participation of attorneys from large law firms in the VLP program and should be reviewed by attorneys seeking pro bono bankruptcy opportunities.
Once retained, the lawyer helps the client determine whether bankruptcy is appropriate and, if so, what type of relief is needed. At the outset, the lawyer must explain the benefits and burdens of bankruptcy. While the central goal of bankruptcy is to obtain a discharge of debts, bankruptcy also provides the benefit of the “automatic stay,” which is a federal injunction against all collection activity that takes effect when the petition is filed. The stay provides a debtor with a much needed “breathing spell” while dealing with his or her financial affairs. On the other hand, once a client obtains a Chapter 7 discharge, he or she is prohibited from obtaining additional Chapter 7 relief for the next eight years. Additionally, the bankruptcy filing can remain on a client’s credit report for up to ten years. Finally, some debts (e.g., taxes and student loans) are difficult to discharge in bankruptcy.
The lawyer must also counsel the client in selecting the appropriate type of bankruptcy relief. Under Chapter 7 of the Bankruptcy Code, a debtor’s “non-exempt” property is liquidated to pay creditors. In contrast, under Chapter 13 of the Bankruptcy Code, a debtor has the opportunity to protect his or her “non-exempt” property from the reach of creditors by paying defaulted debts over time through a repayment plan funded by the debtor’s excess income. Typically, a low-income debtor will opt for relief under Chapter 7 because the debtor does not have any “non-exempt” property to protect or because he or she does not have any excess income to fund a repayment plan.
Finally, the lawyer should be sensitive to the client’s non-legal concerns. For an individual debtor, the moral implications or social impact of walking away from debts may weigh as heavily in his or her decision as anything else. While there are no easy answers to these concerns, the lawyer should not underestimate their importance and should engage with the client in addressing them.
Following the decision to file bankruptcy, the lawyer helps the client complete and file the petition, which details the client’s assets, liabilities, income, expenses, and other financial information, and accompanies the client to the Section 341 meeting of creditors, at which creditors and the bankruptcy trustee are given the opportunity to ask the client questions before the bankruptcy court enters any discharge order. The lifespan of a typical Chapter 7 pro bono case is three to four months from initial interview to discharge.
An Enriching Experience
In our experience, helping low-income debtors obtain a “fresh start” in their financial lives through debt relief is its own reward. While we are happy to serve the community in this manner, we have also found that pro bono representation enriches our own experiences and careers. Particularly for developing attorneys, pro bono representation provides an opportunity to increase substantive legal knowledge, to sharpen client counseling skills, and to gain exposure in the local legal community. We are grateful for the VLP’s resources and support, which have afforded us these opportunities.
The BBA provides training for lawyers who would like to represent pro bono clients in Chapter 7 bankruptcy cases. For more information on opportunities with the VLP, please visit www.vlpnet.org.
Meg McKenzie Feist and Megan B. Felter are associates in the Finance & Restructuring Group at Choate, Hall & Stewart LLP in Boston.
by John R. Baraniak, Jr.
“What were you thinking?” As adolescents, we heard this from our parents. As parents, we ask our teenagers the same thing. Whether a young person’s poor choices are rooted in the brain’s incomplete development, as some scientists believe, or are the product of peer pressure, the reality is that teenagers sometimes make bad decisions. Most of us can recall making a bad decision or two ourselves when we were young.
The difference between then and now, however, is that today the repercussions can be much more serious. In the wake of Columbine, Newtown, and similar school-related tragedies, superintendents and principals understandably are concerned about school safety and sometimes jettison students whose misbehavior in the past would have been punished much less severely. Lest they be second-guessed for not acting forcefully enough, school officials are now more likely to exclude students from school, either suspending them for long periods or expelling them. In turn, the excluded students either fall impossibly behind in their studies or are unable to obtain any education whatsoever. Their lives are permanently altered. A high school diploma and college are now beyond their reach, and prison is a distinct possibility.
The numbers are staggering. During the 2009-2010 school year in Massachusetts public schools, 34,291 students were excluded from school for at least one day, 5,200 of them for 10 days or longer, and 219 of them expelled, including many permanently denied access to a public education. According to this data, from Keep Kids in Class: New Approaches to School Discipline, 2012, Massachusetts Appleseed Center for Law and Justice, these excluded children were disproportionately male, poor, Black and Hispanic, and special education students. The impact of exclusion can be devastating. An excluded child is more likely to eventually drop out of school and “placed at greater risk for delinquent behavior and subsequent incarceration when placed unsupervised on the streets of the community for days or weeks at a time.”
In response to this growing crisis, the Charles Hamilton Houston Institute for Race & Justice at Harvard Law School, led by Professor Charles Ogletree; the Center for Law and Education; and Choate Hall & Stewart, LLP, formed a unique collaboration four years ago in an attempt to break this “school to prison pipeline.” Since the collaboration began, Choate attorneys – litigators and non-litigators – have represented, pro bono, dozens of students facing exclusion in an attempt to return them to school and in many cases, to ensure that they receive the special education services to which they are entitled under the law. Many of these cases involve students with emotional or behavioral disabilities who are grossly under-serviced and then excluded for conduct that flows directly from their disabilities.
The cases can be emotionally challenging. The clients, young kids, are particularly vulnerable, and their parents are often without the financial means or experience to effectively advocate for their children. These parents often are unable to miss work to meet with school officials, face language barriers, and struggle under the weight of their child’s complex diagnosis. It’s easy to relate to their desire to want the best for their children. Will the child receive the services to which he is entitled? Will he be punished for his disability? Will he be permitted to finish high school? Go to college? Be able to support himself and live independently? The stakes could not be any higher.
One particularly memorable student was LB, an eighth grade honors student with an unblemished record who was excluded from school for an entire year because he took a pocket knife away from another student who was using it to threaten one of LB’s friends. LB’s offense? He didn’t immediately turn the knife over to school officials, but instead planned to do so at the end of his lunch period. The school cited its “zero tolerance” weapons policy as grounds for the exclusion of this model student. It made no difference that LB didn’t bring the knife to school and didn’t threaten anyone with it. In implementing a “zero-tolerance’’ weapons policy, it was enough for school officials that LB had “possessed’’ the weapon, even if only for a short time.
When I first met LB and his family, I was struck by how desperate he was to return to school. His entire family showed up at my office. His parents were from South America and spoke only limited English. Both worked long hours to support their family. LB’s older sister was in the honors program at UMass Amherst and had taken the semester off to tutor LB to make sure he did not fall behind while excluded from school. The family was committed to sending their children to college so that they could have a better life, and now this incident threatened to destroy LB’s future.
LB fought the suspension in federal court, and won. We chose federal, rather than state, court because federal law was more fully developed in school discipline cases. Federal District Court Judge Dennis Saylor, in granting LB’s motion for a preliminary injunction, ruled that the one-year suspension was so grossly disproportionate to any wrongdoing LB committed that it was not rationally related to any legitimate state purpose and therefore offended the U.S. Constitution’s guarantee of substantive due process. LB was reinstated in school, and his record was expunged. This was one of the first decisions in the country invalidating a zero-tolerance policy on constitutional grounds. The school district agreed to drop its inflexible zero tolerance policy and to give principals the discretion to decide future cases on their individual facts. Apart from these impacts, however, the decision was hugely important to LB and his family. He returned to school, his spotless record intact, and continued in the honors program. Their relief was palpable.
One of my partners had a similar experience, representing a 13-year-old Puerto Rican youth who had been out of public school for over five months. This client was a capable student with serious ADHD and emotional needs manifested through attention seeking behavior, panic attacks, and anxiety. Remarkably, the school did not carry over his Individualized Education Plan (IEP) from elementary to middle school and failed to provide special education programming and services to help him address his disruptive ADHD behavior for which he was routinely reprimanded. As a result, he dreaded going to school and missed a substantial number of days. He was constructively expelled from school, and he spiraled into severe depression. Choate appealed to the Bureau of Special Education Appeals the school’s failure to provide this student with the services to which he was entitled. We were able to obtain a very favorable settlement, placing the student in an alternative, therapeutic school and on an IEP that provided the special services he needs. The student thrived at his new school, and his demeanor entirely changed. Formerly a withdrawn, sullen boy reluctant to leave his house, he has transformed into an engaging teenager who is happy to go to school and participate in activities.
In another example, Choate represented a high school senior in an appeal to the superintendent of schools of his expulsion. The student had been accused of inadvertently bringing an unloaded pellet gun to school. According to the school’s allegations, the student was returning the pellet gun to a friend and had placed it in his coat pocket and forgotten about it when wearing the coat to school. At school, the pellet gun allegedly fell out of the student’s coat pocket and was discovered by a teacher. The student was expelled. At the appeal hearing, the firm successfully argued that the facts alleged, even if true, did not warrant the severe sanction of expulsion and pointed out various laws and policies school officials arguably had violated in handling the matter, including publicizing the student’s name. My colleagues were able to convince the superintendent to vacate the expulsion and permit the student to graduate with his class and to participate in the graduation ceremony. The student’s future college plans, temporarily derailed, are back on track.
In these cases, the children’s future prospects were vastly improved by zealous advocacy on their behalf. I’ve witnessed first-hand the difference merely having legal representation makes for these students – formerly dismissive and seemingly autocratic school officials, faced with the prospect of procedural and substantive due process and statutory challenges to their exclusion decisions, become much more amenable to finding a way to get the student back into school and back on course.
Principals and superintendents have a tough job safeguarding our children and our schools. But they also have an obligation to help all students, not just the well-behaved ones. Often it is the problem student who needs the school’s help the most. Teenagers will continue to make bad decisions. The response, however, cannot be simply to exclude them from school, sacrificing educational opportunity and young lives in the name of school safety. The student, his or her family, and society as a whole will be better off if everyone works together to ensure that students are excluded only as a last resort out of a genuine safety concern and not out of blind adherence to rigid school policy.
John Baraniak is a partner in the Securities Litigation, Major Commercial Litigation and Government Enforcement & Compliance Practice Groups at Choate, Hall & Stewart LLP in Boston and co-leader of the firm’s Pro Bono Program.