South Carolina Lawyer
SC Lawyer, July 2007, #5.
Public Interest Issues for the Private Practitioner
South Carolina Lawyer July 2007 Public Interest Issues for the Private Practitioner By Clanitra L. Stewart, with contributions by Susan Berkowitz Disclaimer: This article is for educational purposes only. It is not intended to be applied to a specific set of facts and is not an exhaustive list of program rules, options or legal arguments for attorneys or other advocates.
Private attorneys may find themselves addressing issues that were previously thought to be within the sole purview of pro bono and public interest attorneys. In the past, it was rare to find a criminal defense attorney with an intimate knowledge of subsidized housing regulations or a personal injury litigator well versed in welfare policies. However, as individuals with fewer financial resources find private representation in legal matters, a thorough attorney must be knowledgeable of not only the law surrounding the immediate legal issue, but also related areas of the law that may affect a client's life.
As daunting as it can be for a veteran attorney to face the prospect of learning an entirely new, or previously-avoided, area of the law, the frustration is minor compared to that of defending against a Bar complaint or a malpractice claim! In order to give your clients accurate and comprehensive legal assistance, you will need to know how the course of your representation in substantive area of the law may affect a low-income client's life with respect to another area of law. With that in mind, we invite you to sit down, roll up your sleeves and delve into the following hypothetical situations involving a few areas of public interest law that are essential knowledge for the well-rounded practitioner.
Hypothetical #1: The Criminal Defendant
A client hires you for representation in a criminal case that involves allegations of drug activity. Through the course of your representation, you determine that your client receives one or more types of federal assistance. In deciding how to best represent your client, what facts should you consider?
Understandably, the primary concern for most lawyers in this case would be to defend their client against the immediate criminal charges. However, depending on the type of charge against the client, the client and the client's family may also face the loss of essential public assistance. We address these types of assistance one by one:
Public and subsidized housing
The most common types of federal rental housing assistance that a criminal attorney may need to become familiar with are Public Housing, Section 8 Project-Based Housing and the Housing Choice Voucher Program. Each of these programs provides rental assistance to low-income individuals or households. The Public Housing and Project-Based Section 8 programs require a tenant's household to live in a particular rental unit in order to receive assistance, while the Housing Choice Voucher Program allows the tenant to access private-market rental units and still pay no more than a small amount of money as the tenant's share of the rent. The federal regulations for these three programs address what happens when a tenant or a member of the tenant's household is accused of drug-related criminal activity or other criminal activity, some of which need not occur on the rental premises to negatively affect a tenant and the tenant's family.
Public housing regulations state that part of a tenant's responsibility while in public housing is to ensure that neither he nor any member of his household engages in drug-related criminal activity on or off the premises or any criminal activity that "threatens the health, safety or right to peaceful enjoyment of the premises by other residents." 24 C.F.R. § 966.4(f)(12)(i) (2006). Note that this requirement includes more than just drug-related activity - it also includes any criminal activity that poses a threat to other tenants. Note also that the tenant is as culpable for drug-related activity outside the housing premises as the tenant is for drug activity thereon. 24 C.F.R. § 966.4(f)(12)(i)(B) (2006). In fact, federal regulations require Public Housing Authorities (PHAs) - the agencies that administer Public Housing - to terminate the lease of any household in which a household member engages in the aforementioned criminal activities or in which any household member is convicted of a felony. 24 C.F.R. § 966.4(l)(2) and (3) (2006).
The regulations for the Section 8 Project-Based Housing Program and the Housing Choice Voucher Program contain similar provisions. Under the Housing Choice Voucher Program, "drug-related criminal activity or violent criminal activity or other criminal activity that threatens the health, safety or right to peaceful enjoyment of other residents and persons...