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Judges and Judiciary

Aug. 18, 2015

Court legal services program appears to violate ADA

Adults with developmental disabilities are receiving deficient legal services in limited conservatorship proceedings. By Thomas F. Coleman

Coleman tom web

Thomas F. Coleman

Legal Director, Spectrum Institute

1717 E. Vista Chino A7-384
Palm Springs , CA 92262

Email: tomcoleman@spectruminstitute.org

Loyola Law School

Spectrum is a nonprofit organization advocating for reforms in California's conservatorship system and in state guardianship systems throughout the nation.

By Thomas F. Coleman

A legal services program operated by the Los Angeles County Superior Court does not
appear to comply with Title II of the Americans with Disabilities Act. Adults with
developmental disabilities are receiving deficient legal services in limited conservatorship
proceedings.

The court operates a Probate Volunteer Panel (PVP) from which attorneys are appointed
to represent clients who have intellectual and developmental disabilities. It is responsible
for the deficient performance of these attorneys because the court approves who gets
on the list, appoints them to specific cases, reviews and approves their fee claims,
and mandates them to attend court-approved training programs.

Yet the court has been willfully indifferent to the failure of attorneys to provide
effective assistance to these clients and has knowingly allowed deficient training
programs to operate for many years.

Conducting my own investigation using the court's computers, I discovered that mandatory
procedures to protect the rights of proposed conservatees are frequently waived. Optional
procedures that would increase the likelihood of a just result often are not utilized,
even though they could have been without exceeding the court's time guidelines.

In short, proposed conservatees are not afforded the process they are due. Cases are
rushed through the system. Shortcuts are used. Steps are missed. Efficiency, not quality,
seem paramount to both the court and the attorneys it appoints.

In the 18 cases I looked at of one specific attorney, services that could have been
performed but were not include: (1) objecting to the lack of an investigation by a
court investigator and the lack of an investigator's report even when no investigator
was involved; (2) reviewing school records for clients who were enrolled in school;
(3) interviewing any staff members at these schools; (4) reviewing the regional center
report in several cases; (5) interviewing the doctor who submitted the medical capacity
declaration in any of the cases; (6) interviewing any of the relatives, other than
the custodial parents, who were identified in the petition; (7) reviewing the most
recent Individual Program Plan or any clinical evaluation reports in the regional
center files in any of the cases; (8) asking for an expert to be appointed under Evidence
Code Section 730 as authorized by law in any of these cases - especially in cases
where the right to make sexual decisions was retained by the client upon recommendation
of the attorney; and (9) developing an ADA accommodation plan for clients.

An evaluation of 25 additional cases handled by six other attorneys who represented
proposed limited conservatees shows a similar pattern of waiving procedural protections
(court investigator reports and regional center reports) and failing to take advantage
of procedures that were available and that would have increased access to justice
and a fair result - many of which could have been utilized without exceeding the presumptive
12-hour limit for attorney services (per the general order of the presiding judge).
This pattern was known to and ratified by a judge.

Title II of the ADA and Section 504 of the Rehabilitation Act place an affirmative
duty on state and local courts to ensure that litigants with cognitive and communication
disabilities receive access to justice. This is especially so when the litigants are
forced to participate in legal proceedings. The duty is amplified, and requires the
court to take action on its own motion, when the court is aware that these involuntary
litigants have mental or emotional difficulties that impair their ability to participate
in legal proceedings in a meaningful manner unless they receive accommodations.

Under circumstances such as those associated with limited conservatorship proceedings,
the court must provide accommodations, and modify usual policies and practices, to
ensure access to justice for these litigants. For all practical purposes, the only
accommodation the court provides to these litigants is a court-appointed attorney.

Having provided such an accommodation, it is the responsibility of the court to ensure
these attorneys are properly trained to represent clients with intellectual and developmental
disabilities. But my research suggests the court has failed to do ensure proper training
of these attorneys.

Proposed conservatees lack the ability to know when their attorneys are performing
in a deficient manner, and lack the ability to complain and demand a new attorney
- so it is the responsibility of the court to put various quality assurance controls
in place to ensure these attorneys are giving the clients access to justice. The court
has not done so. Judges are rubber stamping the fee claims and ignoring the deficiencies
evident in the reports submitted by the attorneys to the court.

There is a clear pattern of ADA violations by court-appointed attorneys, by the legal
services program operated by the court, and by the training programs mandated by and
implicitly approved by the court. The Los Angeles Superior Court is ultimately responsible
for these violations.

  <p/> 
  <b>Thomas F. Coleman </b><i>is the legal director of Spectrum Institute, a nonprofit education and advocacy organization
     promoting justice and equal rights for people with intellectual and developmental
     disabilities. You can reach him at <a style="color:#123f72;" href="mailto:tomcoleman@spectruminstitute.org">tomcoleman@spectruminstitute.org</a>. The Spectrum Institute filed a class action complaint with the U.S. Department of
     Justice against the Los Angeles Superior Court over these issues.</i> 
  <p/> <!-- Court legal services program appears to violate ADA   -->
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Ben Armistead

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