Story by: Casey Gwinn and Gael Strack
Francisca felt his hands around her neck for the first time when she was pregnant with her first child. The small town they lived in on the southern border of the Mexican state of Durango had a police chief who had been friends of her husband’s family for 20 years. There was no legal support or protection available for her from her rage-filled husband. While he had abused her before, this was the first time his rage crossed the line to homicidal conduct. As he raged at her with both hands around her neck, his words penetrated deep into her soul. “Perra!” (“Bitch”). “Coño!” (“C-nt”). “Es hora de morir!” (“It is time to die”). Minutes later, when she regained consciousness, he was gone. She had urinated during the assault and her throat was so sore she could hardly swallow. She knew she had to get away, but how? Who would help her? She had no money. No one would believe her. She had a new baby on the way. And he promised he would never hurt her again. So, she stayed.
After her son, Diego, was born, the violence continued. He didn’t “choke” her every time he hurt her, but it was his “go-to” assault when his rage reached a fevered pitch. It was always her fault for real or imagined wrongs that she committed against him. When her son was two years old, she had no choice but to run. One night while her husband was at a business meeting, she packed and fled to the United States. She had a residency card from living in the United States in middle school and high school with her sister, who lived just outside of San Diego, California. Her sister welcomed her without questions. She could see a pathway to a new life with her son was possible.
Two months after arriving in San Diego, her husband hired an attorney and filed a civil action against her for removing her son from Mexico without any court order. The legal action was authorized under The Hague Convention. It provides for an expeditious method to return a child abducted by a parent to the child’s country of “habitual origin.” Francisca had no financial resources, and her husband’s resources were unlimited. She contacted San Diego County’s legal aid program and was told there was a six-month waiting list for pro bono assistance. Days later, she walked into a free legal clinic sponsored by Thomas Jefferson School of Law in San Diego, operated under the leadership of Adjunct Professor Lilys D. McCoy. A law student told her of the Center for Solo Practitioners, a legal incubator/accelerator program of Alliance for HOPE International (Alliance; allianceforhope.com). The program, created in partnership with Thomas Jefferson School of Law, was one of the first legal incubators focused on survivors of domestic violence and their children.
Weeks later, Lee Vernon, an attorney with the Alliance’s Justice Legal Network, agreed to take her case, and the Alliance agreed to pay him a “low bono” legal fee of $1,500 to provide legal assistance to Francisca. Alliance develops and pilots local initiatives in San Diego to assist victims of violence, and then promotes replication of its evidence-based models across the United States and around the world. Its flagship programs include the Family Justice Center Alliance (multi-agency, multi-disciplinary collaboratives), the Training Institute on Strangulation Prevention (focusing on non-fatal strangulation assaults), and Camp HOPE America (the first camping and mentoring initiative in the country for children exposed to domestic violence). Lee Vernon needed an expert on domestic violence and strangulation assaults and was able to tap Casey Gwinn, the Alliance’s president, to donate his time to testify for Francisca. In the absence of any evidence, police report, or medical documentation to substantiate her abuse in Mexico, Francisca faced a difficult burden of proof to win her Hague case in the San Diego Superior Court. But she had expert legal representation from a young, experienced family law attorney who was operating his solo practice out of the offices of the Alliance.
Two months later, Francisca lost her case, and her husband was able to obtain a court order to return Diego to Mexico. The trauma in the courthouse when Diego was turned over to his father was profound. Diego was only three years old as he was pulled from his mother’s arms and whisked away with his father. But the court record created in San Diego allowed Francisca to go to Mexico and win custody of her son less than six months later. Within a year, she had legally returned to San Diego with permanent custody of her son.
Meeting the Needs of Clients and New Lawyers
Francisca’s pathway to justice, safety, and hope was made possible by a dynamic legal incubator, one of many now proliferating across the country. The model is straightforward. Law schools build partnerships with a local legal service provider or a social service agency, or they develop their own support program for newly graduating sole practitioners. The goal is simple: help them to succeed in a solo practice and challenge them to provide pro bono and low bono legal services for those unable to otherwise have access to justice.
The first “incubator law firm” (ILF) was established at City University of New York School of Law in 2007 under the visionary leadership of Professor Fred Rooney. Today, there are more than 70 incubator law practices in more than 35 states. Nearly 75 percent of the incubators have been launched in the last five years. ILFs are sponsored by law schools, bar associations, bar foundations, law firms, or community-based nonprofit organizations.
These new ILFs are meeting profound and overwhelming needs for access to justice by the poor, the disenfranchised, and even those in lower to middle income brackets who still cannot afford essential legal assistance and services. The traditional models of salaried public benefit lawyers, student-led legal clinics, and pro bono legal assistance have been unable to meet the growing needs of tens of thousands of people. Interest in the model from new law school graduates has burgeoned as only 60 percent of law school graduates are able to find employment practicing law.
The ILF model has provided a pathway for many young and new lawyers who have a passion for justice that they cannot fulfill in traditional law firms. The desire of millennial generation attorneys for independence rather than the traditional hierarchical partner/associate law firm structure has found fulfilment in the ILF model—allowing young attorneys to get trial experience much faster than law firm practice would allow. ILFs have opened the door to innovative law practice where attorneys can pursue for-profit practice while still engaging in social justice practice at the same time. Attorneys such as Lee Vernon are able to help domestic violence survivors, cover their costs with a low bono legal fee paid by the Alliance, and charge paying clients $250 per hour and more to sustain a solo legal practice. The freedom of solo practice has also met the goals of many young attorneys, including young mothers who want to have a work/life balance with flexible schedules, travel, and health and fitness time while they build a successful law practice. Women participating in local legal incubators have reported less sexism and sexual harassment and less “glass ceilings” or unequal compensation schemes than they often had experienced in traditional law firm structures.
In 2016 the American Bar Association’s Standing Committee on the Delivery of Legal Services Survey found there are a variety of organizational sponsors of ILFs. Many were sponsored by law schools (41). Some were sponsored by local bar associations (8). Other models included leadership from bar foundations (2), legal aid organizations (11), nonprofit organizations (8), courts (1), private firms (2), access-to-justice commissions (1), and law libraries (1). Only one was focused on domestic violence/sexual assault survivors as of 2016—the Center for Solo Practitioners, sponsored by Alliance for HOPE International and Thomas Jefferson School of Law.
As the ILF movement evolves across the country, most incubators require their participants to provide pro bono service hours. In some, pro bono hours provide a discount from market rate rent for their office space. In others, pro bono hours are required simply to be a member of the ILF. The beauty of the models that are developing is the diversity of legal practices that can be included: family, immigration, housing, consumer, personal injury, workers’ compensation, and criminal defense. The sponsor(s) of the ILF are then able to offer training to the selected participants in substantive law, trauma-informed legal practice, practice management, ethics, client development, marketing, branding, staff retention, technology, and community outreach.
Barbara Hart, in her evaluation of the ILF movement, identified other resources provided to participants by the ILFs, including: mentoring/shadowing by experienced lawyers (96 percent); networking (online and in person, 89 percent); private meeting rooms (85 percent); case referrals, office supplies, and CLEs (85 percent); legal research, firm mailbox/address, and case management software (70 percent); administrative support and free office space (54 percent); and subsidized office space, stipend/financial contribution, malpractice insurance, and bar dues (12 percent).
The ILF model is not a panacea, and simply its creation does not ensure long-term success or sustainability. Multiple ILFs have closed since their inception, primarily due to loss of start-up funding or changed leadership at a law school or other sponsoring organization.
From Incubators to Accelerators and Beyond
The ILF model has also evolved in multiple jurisdictions. In San Diego, the Center for Solo Practitioners is a one-year program in which the Alliance provides a discounted cubicle, private client interview rooms, training in trauma-informed legal practice, and shared meeting spaces to participants recruited and screened by Professor McCoy. The Center for Solo Practitioners soon found that, after the one-year “incubator” program, many participants did not want to leave their co-located office space within the Alliance. To meet the strong desire of attorneys to continue to work in a multi-disciplinary community, the Alliance created a legal “accelerator” model, allowing attorneys to stay for an additional three years if they were willing to pay higher rent (though still discounted) for a private office and were willing to commit not only to 25 pro bono hours but also to take one “long-cause” or “contested” matter on behalf of a domestic violence/sexual assault survivor for a low bono rate of $35 per hour capped at $1,500. The second iteration of the incubator model is called the Justice Legal Network (JLN).
The Alliance’s Center for Solo Practitioners and JLN are not the only programs focused on battered women or sexual assault survivors. There are two other operating programs and a number of others under development. The Family Law Fellowship of the Eastside Legal Assistance Program (elap.org) in King County, Washington, operational since April 2014, provides family law representation to victims of domestic violence below 200 percent of poverty guidelines. This ILF is a one-year program that offers all the resources above other than office space and stipends/financial contribution. The New Solo Practitioner Incubator of Monterey College of Law (montereylaw.edu/plp-underway) in Monterey County, California, operational since September 2014, provides restraining order, small claims, collections, unlawful detainer, and guardianship representation for families of four persons with income between $31,900 and $76,560. Participant attorneys are charged $350 per month for the one-year program, but assistance does not include low bono compensation or paid or free office space.
The Alliance is now advocating for the creation of more ILFs and “accelerator” incubator models in family justice centers and local domestic violence and sexual assault agencies across the country. The potential for incubator and accelerator models is vast and still largely untapped. Family justice centers and community-based organizations have the potential to provide the expertise and training for incubator and accelerator attorneys at little or no cost. Such expertise can then be applied to support low-income survivors of trauma, violence, and abuse, but it can also benefit attorneys with their paying clients.
The Alliance provides regularly scheduled MCLE-approved, mandatory trainings for all the JLN attorneys in five areas: (1) trauma-informed interviewing; (2) risk assessment and safety planning; (3) the Adverse Childhood Experiences (ACE) study and its importance in trauma-informed legal practice; (4) lessons learned from prosecutors about proving domestic violence and sexual assault allegations in civil practice; and (5) using personal injury cases to provide compensation to domestic violence and sexual abuse survivors.
At present, the Alliance is beginning to test the potential of suing batterers and abusers, seeking personal injury compensation with JLN attorneys. Two current cases being handled by JLN attorney Nicholas Moore have the potential to not only provide substantial recovery to domestic violence survivors but may provide funding for ongoing expansion of the JLN framework. As the Alliance seeks to expand the JLN framework, expansion initiatives include: hiring research attorneys to assist JLN attorneys with pleading development, legal research, and trial memos; and instituting a JLN practicum to train law students to support the work of JLN attorneys with case screening and legal research. The Alliance is also experimenting with identifying therapists and forensic experts to support JLN attorneys in their personal injury cases. The need for forensic experts and mental health professionals in trauma cases (including strangulation cases) is acute. The therapist would operate a private practice, just as the JLN attorneys, but also donate mental health assistance for JLN clients and provide expert testimony as needed. Forensic experts (nurses and doctors) could provide case assessments and expert testimony. Mentoring would be offered by Casey Gwinn and Gael Strack, both experienced former prosecutors and the senior attorneys in the JLN.
The synergies of nonprofit organizations and incubator and accelerator attorneys are almost unlimited. Most recently, the Alliance’s expertise in non-fatal strangulation assaults has opened the door for consulting contracts with families seeking justice after the death of a loved one under suspicious circumstances. The Alliance’s team of experts and JLN attorneys are now beginning to offer fee-based, private consulting services to evaluate suspicious cases where local law enforcement or coroners have ruled a suspected homicide as “cause of death undetermined.” Two such recent cases examined by the Alliance team have resulted in murder charges being filed against the victims’ partners.
Extending the Pathways to Justice and Hope
Whether an ILF is created to serve victims of domestic violence and sexual assault or is created to help a diverse constituency of underserved, low-income people seeking access to justice, the model has been proven to be viable, sustainable, and scalable. Successful development and sustainability require leadership, vision, and investment from the lead school, organization, or agency. It also requires competent and passionate attorneys. Thousands of traumatized and hurting people in this country need access to justice. Legal aid organizations and public interest law programs do tremendous work. Pro bono programs at private law firms continue to make a difference for thousands, but the scope of services and the overwhelming demand means pro bono services will never be adequate to the need. Incubators offer increased capacity without the need for funding salaries and benefits of public interest attorneys. It also allows for expertise that many law firm–based pro bono attorneys do not have. The only question is whether visionary legal minds across this country will embrace proven incubator and accelerator models to provide more pathways to justice and hope for so many still in need.
Posted on February 27, 2019 at 8:23 am