Oregon State Bar Bulletin — DECEMBER 2005

In the Trenches
A glimpse at some real-life pro bono cases in Oregon
By Janine Robben

"Real Army" soldier Jessica Eichler was in Iraq, working on heavy equipment and watching out for roadside bombs, when she lost contact with her husband and little boy.

"I tried to call home several times over four or five months, and I kept getting that my phone was disconnected," says Eichler, now 25, who had left her husband and son at her home base in Germany when she was deployed to Iraq in 2003.

Mail wasn’t any better.

"Some weeks the mail trucks were blown up, and we weren’t receiving mail for months," she says. "Not a letter. Not a phone call. Nothing. I was just beside myself in Iraq, fighting for my own life, and terrified that something had happened to them."

Unable to get compassionate leave from the Army to return to Germany, Eichler did the only thing she was allowed to do. She called her mother in her home town of Forest Grove and begged her to find her son.

And she did.

How that happened is an amazing story. But it’s only one of many amazing stories in which Oregon lawyers — working "pro bono," or without compensation for the public good — have helped other Oregonians recently in ways both large and small.

Portland lawyer Richard Barton, who handled Eichler’s case through the bar’s pro bono Military Assistance Panel, estimates that it would have billed out at $30,000, money Eichler didn’t have.

"Jessica’s special, and her son Tony is special," says Barton, an Army veteran and long-time litigator who recently retired from private practice. "I wonder how many other stories played out in other jurisdictions that didn’t have our program.

"I’m sure there are lawyers, in St. Andrew and legal aid clinics all over the state, who have helped women just like Jessica without attention for their labor," he says. "As a lawyer with only retained cases, it was a wonderful experience."

Pro Bono usually under-reported
How many Oregon lawyers have shared Barton’s experience is — in a profession that lives by its timekeeping — surprisingly nonquantifiable.

That’s because only five percent of bar members currently report their pro bono hours to the bar, according to Pro Bono Program Developer Debra Cohen Maryanov.

The OSB defines pro bono to include charitable and public service activities as well as the direct provision of legal services to the poor. Oregon bar members are encouraged to perform 80 hours of pro bono work annually. (Making a comparable financial contribution also counts; trying to claim credit for work you expected to get paid for — but didn’t — does not.)

In 2004, the same year that Barton represented Eichler, Oregon lawyers and law students reported almost 100,000 hours of pro bono work, of which over 19,000 were direct legal services to the poor that counted as billable time. "At an hourly rate of $150," says Maryanov, "these (billable) services would be valued at more than $2.8 million."

Military Assistance Panel takes on Family Law
When Jessica Eichler’s mother went looking for help for her daughter, an attorney directed her to the bar’s pro bono Military Assistance Panel.1

Started in December 2003 as a cooperative endeavor of the bar, the Oregon Military Department and the Oregon Department of Justice, the project is one of 12 certified pro bono programs for which the bar’s Professional Liability Fund provides liability coverage for volunteers without primary coverage of their own.

The project initially was geared towards helping military service personnel and their families get the basic debt, employment and other relief to which they are entitled under federal law.2 But soldiers like Eichler have changed its face.

"There’s a great need for help with family law issues," says Kay Pulju, the bar’s communications and public services manager, who also serves as the panel’s head.

"Now, as deployments lengthen and soldiers return, we’re getting more calls about divorce. It’s really sad, but if you think about it, I guess it’s not surprising given all the stress these families are under."

Pulju says she sometimes gets direct requests from soldiers in Iraq and Afghanistan.

"I’ll be going through my e-mails, reminders about this meeting and that meeting, and then there’ll be an e-mail from a soldier in Baghdad," says Pulju. "Think of where they are, what they’re doing, and then add in legal problems back home. We get some pretty desperate calls for help."

"Desperate" is exactly how attorney Barton describes Eichler when he opened her case on Dec. 29, 2003.

As Eichler eventually discovered, her husband and their son Anthony, then three and one-half, were no longer at the American base in Germany. In fact, her husband had taken Tony, thousands of dollars that Eichler had inherited from her grandfather, and her combat pay (which had been deposited into their bank account at the base), and returned to his Mexican-American community in Los Angeles.

"Her husband had done a preemptive strike and taken their child and all their money," says Barton. "So she didn’t have any money, she didn’t have her son, and the Army wouldn’t let her leave Iraq. She was desperate."

What then ensued was, for Barton, a legally challenging, intercontinental race to prove that Oregon had more right to decide where and with whom the boy would reside than did California.

By the time Barton finally was able to schedule a custody hearing in Oregon, Eichler and her son had not seen each other in a year.

"(The husband) showed up with the boy," says Barton. "That was a positive sign. She was in her beret, her green Army skirt, with all her campaign ribbons from Iraq. She looked like a million bucks. When that boy saw his mother, he ran to her and was stuck to her like Velcro. It was my most rewarding experience in many years as a lawyer."

Barton, who got Eichler full custody of her son, later handled her divorce as well. ("When all was said and done, he couldn’t understand why I couldn’t call home every day," says Eichler of her former husband’s decision to leave while she was in Iraq.)

She also has — courtesy of Barton — an order for child support and another order for $37,000 for her inheritance, travel from Germany and other costs.

Eichler, who now works with heavy equipment on Portland’s Swan Island, later wrote Barton a heartfelt letter of thanks.

"Thank you for putting my life back in order," she wrote. "I may have gone to war for my country, but you went to war for me, and that means so much more."

A ‘Love Story’ in reverse
You know the commercial where the husband gets his wife to Rome and shouts, "I love this woman!" in front of hundreds of startled but amused strangers before presenting her with a diamond ring?

That — with the sexes reversed — would be Tracy Acuna and Portland lawyer Paul Conable, another Military Assistance Panel volunteer.

"We love him," says Acuna. "I saw him the other day in the grocery store and told him so."

Acuna says she and her husband, Anthony, would be "absolutely homeless" if Conable hadn’t stepped in to deal with their mortgage lender and other creditors while Anthony Acuna served two tours in Iraq and six weeks in New Orleans with the Oregon National Guard.

"We would have lost everything," says Acuna, who says her family’s income dropped by 70 percent when her husband had to leave his job as a hospital emergency room technician to serve as a medic in Iraq.

Anthony Acuna served a total of 22 months in Iraq, during which time his wife took care of their children, was a full-time student at Portland Community College, and tried to fend off creditors.

Anyone who knows Tracy Acuna knows she’s no shrinking violet.

"Military families, for the most part, are programmed to go with the flow, to not complain," she says. "I’m not a good military wife."

In fact, she’s perfectly capable of cussing out creditors, citing the terms of the Soldiers’ and Sailors’ Civil Relief Act to them — "You can’t sue a service member when he’s over in Iraq getting shot at," she says — and telling them they would get her home over her dead body.

But when it appeared that creditors might actually be willing to do that, Tracy Acuna asked the military’s Judge Advocate General’s office for assistance.

"They said they couldn’t help, but could refer me to (Conable’s law firm) Tonkon Torp," she says. "They put me in touch with Paul."

Says Conable, "I’ve put in approximately 200 hours (on the Acunas) in the last 18 months. I’ve been able to do that because Tonkon has been very generous with my time." (Tonkon partner Dan Skerritt, who served as a judge advocate general during the Vietnam conflict, was an early supporter of the Military Assistance Panel.)

According to Tracy Acuna, Conable’s support even included having the couple appear at a press conference to talk about the pressure they were receiving from creditors.

"I just wanted these people to quit threatening me, so I could function," says Tracy Acuna. "We got to tell our story, instead of people thinking we were just lame."

While Conable got the Acunas the debt relief they needed to stabilize their finances and their lives, Conable says he got something from his pro bono experience as well.

"This experience was highly satisfying, but also highly nerve-wracking," he says. "Not to sound melodramatic, but people were depending on you to protect their house.

"Tracy’s got an indomitable spirit," he continues. "She’s just a fighter. What these people have gone through, compared to the little bit of help I provided, is very humbling. For every one person who gets help, how many more are losing their houses?"

Helping the asylum seeker
While Barton and Conable were helping their clients keep their children and their homes, Portland immigration lawyer Teresa Statler was trying to help another pro bono beneficiary to literally hang onto his life.

As a volunteer for the bar-certified pro bono program Sponsors Organized to Assist Refugees, or SOAR, Statler this year helped a young asylum-seeker from the African nation of Togo to convince U.S. immigration authorities to let him stay in Portland.

"Let’s just say he was a student activist in Togo and had some problems because of that," says Statler, an intense, crop-haired sole practitioner who received the case from SOAR because she — like residents of the former French Togo — speaks French.

"He’d been beaten; he was in the hospital about a month; he’d been in hiding," says Statler.

Then, somehow, he was able to get a student visa from the U.S.

After he had completed his studies here, Statler’s client contacted SOAR to ask for help in applying for asylum: permanent residence in the United States based on persecution, or a well-founded fear of persecution, if he returned to his native country.

As with Barton’s representation of Eichler, the case posed some significant problems.

First, the grounds for protection of "asylees" and refugees (persons seeking protection from outside the United States) are limited to persecution that is the result of the applicant’s race, religion, nationality, social group or political opinion.

"Sometimes, the law is quite harsh," says Statler. "Asylum cases don’t fix every bad thing in the world, i.e., civil war. You have to show that you, specifically, are being targeted because of one of these five reasons."

Second, the asylee’s request generally must be filed within one year of his arrival in the United States. In this case, Statler’s client already had been here about 11 months, so the clock was running.

At the same time, getting histories from applicants for asylum often requires gentle, time-consuming fact-finding on the part of their lawyers.

"People come in and tell me these things," says Statler. "It’s like something you read in a book. I had a man tell me about being tortured in the ‘ghost houses’ (security buildings) in Sudan. He’d suffered terrible torture; the American government handed him asylum on a silver plate. These people are opening up these things to you, and you are writing them down on a piece of paper. You need to be patient, painstaking. It can be draining; I can only take so many asylum cases at one time."

Nonetheless, she does keep taking them.

"It’s just a very thin little letter," she says of the notification her clients from Togo, Sudan and other places — often in French-speaking Africa — receive from the Asylum Office of Citizenship & Immigration Services if their applications have been accepted. "But sometimes it just brings tears to your eyes."

"My husband was in the Peace Corps: Mali," says Statler. "I’ve never been to Africa myself. But if you can’t go there, help people here. Think globally, act locally. That’s what I’m doing. I think asylum cases are the heart of immigration law."

Affordable housing
At the same time that Statler was helping her client from Togo, another bar member with a Peace Corps connection was turning a little pro bono molehill into a most-satisfying legal mountain.

Retired Ashland attorney David Berger is a long-time member of the Oregon bar. He spent most of his career as a plaintiffs’ antitrust lawyer — "against price-fixing," as he puts it — in Seattle. Then he and his wife retired to Ashland, where they had built a house after serving in the Peace Corps in Jamaica in the early ’90s as a transition from active practice.

Berger worries about the effect the influx of new residents like him and his wife is having on Ashland.

"I want to see more low-income housing in Ashland," says Berger. "We really need it. I don’t want it to become an enclave of the rich and retired."

So Berger was happy when Debra Lee, executive director of Jackson County’s Center for NonProfit Legal Services (another bar-certified pro bono program) asked him for help.

The center itself had been asked to provide legal representation to nine families who had been chosen to buy affordable housing through a government-sponsored, "sweat-equity" land-trust program.

"I think we did have a copy of the land lease, which was quite lengthy, and there were nine families involved," says center housing unit attorney Debbie Mayer. "So we asked for help from David Berger and Medford attorneys Robert Grant and Darrel Jarvis. Bob and Darrel gave crucial input to the project, but David was my primary contact."

According to Berger, "It was contemplated, by almost everybody, that we’d take a quick look at the documents and rubberstamp them."

But, he says, "I’ve got this anal complex about documents being spelled correctly and being correct. Then our clients had some issues, we had serious negotiations about different things and it just sort of ballooned from there. What looked like three to four hours of work for each of us became more like 300 to 400 hours of very complex work."

For example, says Berger, the documents called for the contracting entity to lease some major tools to the new homeowners for a monthly fee from each. But Berger says that one of his clients, who is a carpenter, pointed out that the homeowners could purchase the same tools, and get title to them, for the same amount they’d be paying each month to lease them.

"With this information, we were able to negotiate a substantial reduction in the monthly lease amount," Berger says.

Another client, he says, was a disabled woman who offered to have her son perform her 30 hours of "sweat equity" in the construction of the houses. "No way could she do that," he says of the physical labor requirement. "But they (the entity) wouldn’t accept her son."

Over the course of the negotiations, says Berger, some of the original nine families decided to drop out and were replaced by others.

Now those nine families — none of which, to Berger’s knowledge, has ever owned a house before — are about to get homes at a cost of less than $120,000, in a community where the average house-purchase price is $329,000.

One of them is Berger’s carpenter client, who is the single parent of two young children.

"He was vociferous in his thanks and appreciation," says Berger, adding, "It was a rewarding project in several respects. It’s always psychologically rewarding to get the other side to see your point of view.

ENDNOTES

1. For information on the Military Assistance Program, see www.osbar.org, and click on the forms library. Or call (503) 620-0222, or toll-free in Oregon, (800) 452-8260, ext. 408.

2. I.e., the Soldiers’ and Sailors’ Civil Relief Act of 1940, which provides for reduced interest rates, protection from eviction and delay of civil court proceedings for active duty military personnel, and the Uniformed Services Employment and Reemployment Rights Act of 1994, which was enacted to help returning military personnel with employment issues.

ABOUT THE AUTHOR
Janine Robben is a frequent contributor to the Bulletin. She has been a member of the bar since 1980.

Editor’s note: A training session for Military Assistance Panel volunteers tentatively is set for January. Watch the Bulletin, Bar News and OSB website for updates. Additional information about this and other pro bono opportunities also is available at www.osbar.org.

2005 Pro Bono Roll Call/Pro Bono Challenge
Please spread the news about the great things lawyers do for their community: Participate in the 2005 Pro Bono Roll Call and the 2005 Pro Bono Challenge by reporting your pro bono hours online at www.osbar.org/ probono or downloading the form, which is available on the website. The deadline to report your 2005 pro bono hours is Jan. 31, 2006.


2004 Pro Bono Challenge Winners
In coordination with the OSB Pro Bono Roll Call, the Oregon New Lawyers Division sponsors an annual Pro Bono Challenge. 2004 winners were recognized for contributing the most hours of direct legal services to the low-income clients in each Challenge group: Active Member, Active Pro Bono, Active Emeritus, Law Student, Law School and Law Firm (small, medium and large).

Law Student Winner: Emma Miller, Lewis & Clark Law School.

Law School Winner: University of Oregon.

Small Firm Winner: LavisDiBartolomeo P.C.

Mid-Sized Firm Winner: Lindsay, Hart, Neil & Weigler.

Large Firm Winner: Davis Wright Tremaine.

Active Pro Bono Winners: Roslyn Lipton Tucker.

Active Emeritus: Walter D. Nunley.

Individual: Robert D. Newell.

Total Pro Bono Hours: 79,445.

Total Legal Services To Poor: 19,000.

© 2005 Janine Robben


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