Wednesday, July 23, 2008

Is it Legal Assistance - or Legal Resistance!

I commend the Congress for their efforts in bettering the benefits and protections enjoyed by our service members and their families. The new Servicemembers Civil Relief Act (SCRA), increased Servicemembers Group Life Insurance (SGLI), increased Death Benefit, and broader medical coverage for Reserves and National Guard, and new legislation is introduced in every session.

The drawback is that all this legislation is only as good as its implementation in the real world scenario. It is complex, and not well understood by its intended beneficiaries, not to mention civilian attorneys, judges, and the military personnel clerks. This can be seen from the recent articles on a recalled Army national guardsman losing all of his personal property in a storage facility, and the recent article in the AARP newsletter concerning the death gratuity and SGLI payments. Enacting more benefit legislation is akin the providing more bullets without also the gun to shot them. That gun is an available, knowledgeable, trained military legal assistance attorney.

I have worked with these issues for many years, and from 1997 to 2005 was the regional director of the Navy Legal Assistance program in the southeast United States and Guantanamo Bay, Cuba as a civil service attorney. I have taught at the services’ Judge Advocate General’s schools for over 20 years, as well as training civilian attorneys in volunteer programs, such as the American Bar Association’s programs during Desert Storm and now in Iraqi Freedom. I am a retired Navy Reserve Captain, Judge Advocate, with 38 years enlisted and commissioned service.

Over and over I would see the mistakes made in servicemember’s estate plans due to the member and personnel clerk’s misunderstanding and/or lack of knowledge of the complexity in coordinating SGLI proceeds with the member’s will, the use of a trust for minor children, a guardianship, or a custodian under the Uniform Transfer to Minors Act. Now the amounts are much higher, $400,000 and $100,000 death benefit. An enourmous amount for an 18 year old. I have been involved in cases where the lack of coordination or the ignorance of a certain beneficiary designation has caused problems. At this time there is complex litigation in the Federal District Court for the Northern District of Georgia due to the Army's failure to provide a will for a soldier that created a necessary children's trust for the SGLI.

We need to provide competent estate planning for our servicemembers and their families. The answer is not to force specific beneficiaries, but establish a program that all of our servicemembers will receive competent estate planning advice which can only be done by attorneys.

SCRA protections are ignored, or (again) misunderstood. Even with the mandatory training given to our servicemembers, it doesn’t “stick”. The act is not well understood by members of the civilian bar, most judges, and it hasn’t had any effect on the administrative agencies, which have been subject to it only since December of 2004. In the time I was with the Navy as the regional director our legal assistance program took on 12 cases in which the Child Support Enforcement attorneys entered default judgments of paternity against the member. When these judgments were vacated under the SCRA, and the member had the opportunity for DNA testing, 9 of the 12 were excluded as the father!

Servicemembers and their families are faced with high interest rates on credit cards and mortgages, and presently many are facing foreclosure. The SCRA provides relief in this area, but many banks are not cooperative. Many families are aware that a predeployment interest rate can be adjusted down to 6%, but many are NOT aware that a court may reduce your entire monthly mortgage payment for the duration of your active duty. Here, again, it takes a knowledgable legal assistance attorney to provide assistance, and in this case, to take the matter into court.

We need to provide in-court representation to ensure the protections of the SCRA are followed.

There is a misconception that the Department of Justice or the Federal Trade Commission should enforce this statute, however the majority of cases lie in the local and state courts, and should be handled by legal assistance attorneys under an in-court Expanded Legal Assistance Program. The Civil Rights Division of the Department of Justice does have an arrangement to act on SCRA cases, however it would be quicker if a legal assistance attorney would act immediately.

The Family Care Plans, mandated for single parent or dual parent servicemembers, to provide care and custody of minor children when the parent(s) is deployed. The intricacies of the Uniform Child Custody Jurisdiction and Enforcement Act, and the state procedures are not for the faint hearted! Our young servicemembers and personnel clerks just cannot handle these complex legal issues; they require attorney representation. There have been horror stories involving custody disputes once the custodial parent is either mobilized or deployed, and they find out that their Family Care Plan documents just don’t work! Then complicate it even more by attempting to avail of the protections of the SCRA before the local judge who has never heard of it!

I could go on and enumerate many more issues such as consumer scams targeting the military, military pension division, and the Uniform Services Employment and Reemployment Rights Act. All the legislation in the world will not fix these and give protection to our military and their families without also providing the method of implementation or enforcement. We cannot rely on personnel clerks or other non-attorneys, if we do so it is endorsing the unauthorized or unlicensed practice of law. Mobilization and deployment is done rapidly, and then servicemembers leave the area – these circumstances do not work well for civilian attorney representation.

The various services’ Legal Assistance Programs attempt to provide these services, however they are hamstrung by the enabling statute, Title 10, United States Code, Section 1044, as it provides that the service secretaries may provide legal assistance, as resources permit. The program has been in being for the past 60 or more years, but as it is not an entitlement, not funded, and without sufficient manpower it is sporadic at best.

The American Bar Association and the Judge Advocates Association have supported mandatory legal assistance for many years. While I was the Chair of the ABA Standing Committeee on Legal Assistance (LAMP) in 1990 a resolution supporting mandatory legal assistance was adopted by the ABA. One reason was the Air Force changing its approach to legal assistance, and almost going to the level of providing no services except basic wills. Add to this that each of the services have a different program providing different levels of services; you cannot go from one military legal assistance office to another and get the same treatment or services. There needs to be a coordinated Department of Defense policy mandating the services to be offered uniformly across the Armed Forces, at least to our active duty personnel and their families, so that you receive the same services regardless of the branch or location.

Our military legal assistance attorneys do a great good, and there are the 3 service law schools that provide excellent training in the application of the military nuances to state substantive law. These services cannot be adequately provided by the civilian bar – there are just not enough military to provide a client base for the average attorney to make it worth the while to keep trained in the implementation of military legal assistance. The practice of law is not like the Delta Dental program as there is no Federal statute directing how to fill a cavity!

The legal assistance attorney manning level must be raised, and this area of the military practice has to be made career enhancing, instead of your initial 6 month to 1 year tour, else all the statutes, protections and benefits that congress creates are for naught.

More importantly, there needs to be a public outcry from servicemembers and their families to amend Title 10, United States Code, Section 1044 making legal assistance services a mandatory entitlement. All the complex statutes and other benefits are meaningless if the military members and their families do not have competent legal counsel and representation.

No comments: