Courts need to follow the rule for certified interpreters

I would like to add another wish to that expressed by Chief Justice Drowota. "Rule 6 is for all lawyers" (Tennessee Bar Journal, Jan. 2003). The Chief Justice wished aloud, "If we could just get every lawyer in the state to read the rule... ." My wish is that we get every lawyer and judge to read Supreme Court Rule 42, implemented by order dated April 25, 2002, which deals with the standards for court interpreters. Rule 42 requires all courts to use "State certified court interpreters" unless the court makes a finding in open court "that diligent, good faith efforts to obtain the certified or registered interpreter, as the case may be, have been made and none has been found to be reasonably available." Rule 42, Section 3(c). Since this rule was implemented and since the Administrative Office of the Courts has come out with a list of State Certified Interpreters who have passed both written and oral exams in the target language and criminal background checks, I have personally witnessed courts continue to use non-credentialed "interpreters" (I use the term loosely) even after being reminded of the new rule. I have seen "interpreters" who were former border patrol agents who knew enough Spanish to say "manos arriba" and little else.

Cooks from the local Mexican restaurant, college kids, individuals who supplemented their interpreter duties with duties as bailbondsman and labor broker. One court continues to use a bilingual individual who has never even taken the required English language legal terminology exam and who claims to be certified on his business card when in fact he is not and who routinely speaks with defendants outside of the courtroom in direct violation of the ethical standards for interpreters (Rule 41). All this with the full knowledge of presiding judges, defense attorneys and prosecutors. I have been confronted mostly with outright hostility when I remind courts of Rule 42 and the requirement for "certified" interpreters. This is uncalled for. If we truly aim to achieve Access to Justice for all, then we need to ensure that the Supreme Court mandate for competent, professional, and ethical interpreters is followed.

- Jerry Gonzalez, Nashville

'Don't pick our charities for us'

The article published in the January 2003 edition of the Tennessee Bar Journal (vol. 39, no. 1), entitled "Rule 6 is for all lawyers" necessitates a response. The article was basically an interview with Chief Justice Drowota addressing the obligations for pro bono service under the new rule. A response is warranted for two reasons. One, as an attorney in private practice in Tennessee for the past 28 years, I have expended a world of time in free or partially paid free legal services, some intended and some just because clients didn't pay. And to some degree I am a bit tired of hearing extended harangue about the obligation of practicing attorneys to provide free services. The bottom line is, in private practice for one reason or the other, we regularly provide considerable free or reduced fee services. Many times it is because I think a person needs my help, and I chose to help. Other times it may be a case that is a weak case and would be handled on a percentage and is a long shot, but I think it's the right thing to do, and I may represent someone for an extended period of time knowing the likelihood of making a fee is limited. I think such action is not limited to me, but is fairly common among the trial bar and particularly plaintiff's practitioners. Yet we are regularly told we are not doing enough, and we are generally told that by people who are drawing a salary rather than depending on a fee from individual cases to pay for their overhead and provide a living for their families.

The second reason I felt compelled to respond is that the article cited a case wherein an attorney claimed before the Supreme Court that the fee provided on a criminal appointment case was unconstitutional, and that attorney is me. The case was incorrectly labeled as State vs. Huskey, while it was appropriately Huskey vs. State; however, that designation may be part correct because when I argued the case in front of the Supreme Court, I was made to feel as though it was State vs. Huskey.

Appointment system is unconstitutional

Chief Justice Drowota merely references the case and brings out the point that Justice Harbison, who wrote one of the two opinions in the Huskey case, stated in substance that it was simply a lawyer's obligation that comes with his license to practice. But there is a lot more to it, and I would suggest to you that the appointment system is in fact unconstitutional. At the time of that case, we did not have the statewide public defender system. Attorneys in private practice such as myself spent a significant amount of practice time handling appointed cases, the fee for which would not nearly cover our overhead while we were handling the cases. I filed the suit against the state to either force the state under the Tennessee Constitution to pay just compensation for the services of private attorneys whose services were taken by court order or in the alternative, force the state to establish a public defender system. The case was ideal for that purpose. It was a first-degree murder case and involved, under my appointment, hours which totaled basically three solid months of work. The trial itself was two weeks in length. For my total of three months of service, which is one-fourth of a year's practice time, I was approved a fee of $500 for the trial level work and $500 for appellate level, but the state only paid me the $500 for the trial level and never paid the $500 appellate level until after I sued them. It figured out to about $1.30 an hour as I recall; my overhead as you might anticipate as a sole-practitioner was considerably more than $1.30 an hour. The court records reflect that the state paid the court reporter at state-approved rates, $4,700 to type the transcript of the case for which the state paid me $500 to try.

"Particular services" doesn't apply to lawyers?

Suit was filed under the Fifth Amendment to the U.S. Constitution and also under the Tennessee Constitution. The U.S. Constitution prevents a taking of one's property without just compensation. The Tennessee Constitution is much more on point. Article 1, Section 21 of the Tennessee Constitution prohibits the state not only taking of property, but of a citizen's "particular services," without just compensation. The Tennessee Supreme Court had in an earlier decision defined "particular services" as those services that required special skill and training and could not be performed by members of the general public. That sounds to me like a lawyer's services are "particular services." I would respectfully suggest that the Supreme Court was in error in the Huskey case. It simply was not ready to bite the bullet on that issue and certainly not for the benefit of lawyers who are not the most popular group. To the Supreme Court's credit however, it did right after that decision, in its report to the legislature strongly imploring them to take some action to correct the problem because the court couldn't continue to demand the services from the practicing bar at the level of the current practice. And shortly thereafter the public defender system was established.

Those who began practice since the establishing of the public defender system probably cannot appreciate the dilemma the bar faced under the former system. While we have received relief by the public defender system, the problem is now again arising in the area of Juvenile Court, particularly in the area of termination of parental rights cases or removal of custody wherein the courts have determined the parties are entitled to legal counsel. Generally two parents and a guardian ad litem are involved and so there are generally two or three or sometimes more lawyers appointed and these cases go on forever, sometimes until the kids are grown. I fear that as this area of practice expands, appointments associated therewith will become a similar burden on the practicing bar as did formerly the criminal appointments. I do not wish this letter to be interpreted as opposing public service, but I think there is a big difference between voluntary pro bono work versus mandatory services directed by the state through the courts. The former rules in effect at the time of the Huskey case did not justify such mandatory service and even the current Rule 6, although stronger in that area, talks about voluntary service and points out that the rule is not mandatory. But even if the rule was mandatory, can a court rule trump a provision of the Constitution? Like I told the Supreme Court in oral argument when Justice Harbison advised that it was just my obligation as an attorney to provide free services, that I would gladly compare my charitable contributions with any member of the court, but I reserve the right to pick my own charities and not have them pick for me.

The Supreme Court held in the Huskey case that a lawyer's services are not particular services as contemplated by the Constitution. That provision of the Constitution is still there and the services of a lawyer like the services of a doctor or dentist, etc., are particular services requiring particular skill or training and that Constitutional provision doesn't go away. The law is what the highest court says it is until another court recognizes the error of the prior decision and changes it, as has happened many times in our legal history.

Eureka! A solution to the TennCare and budget crises

If however, the Honorable Supreme Court still contends that lawyers' services like that of other professionals are not particular services, then eureka, I have, through the interpretation of the Supreme Court, found a solution to the state's TennCare and budget crises dilemma. The medical, pharmaceutical and dental professions require special training and education to perform their services just like lawyers, but if our Supreme Court does not consider them to be particular services under the Constitution, then our TennCare and in turn, our budget crisis can be solved the same way that the courts would solve our need to provide legal services to the poor. Merely appoint the doctors. Determine the number of people who are qualified for TennCare and assign so many of them to each general practitioner or specialist, and the same with hospitals. Health care will be provided the same way as providing legal care, on the back of the private practitioners. I realize that we have programs in which doctors provide services at a reduced rate under agreements with TennCare, etc; but that is an agreement, a voluntary contract. This would be just like the court appointment for legal services, an appointment and a token fee would be provided. It would be, if you will, the medical profession's "pro bono" service in appreciation for their license to practice.

If in fact that should happen, I have a feeling the medical profession will be knocking on the door of the Supreme Court begging them to reconsider their opinion in the case of Huskey v. State.

In closing, and to some extent to cover my head, let me make it clear; I respect the Supreme Court and have the greatest respect for Chief Justice Drowota, but as a citizen and as a practicing attorney, I reserve the right to protect my constitutional rights as well as those of my clients. On behalf of myself and those members of the bar, how few they may be, who agree with me, we provide free services. We do it more often than you realize, but let us pick our own charities, don't you pick them for us.

- Robert L. Huskey, Manchester