The Dirty Laundry Goes Public

Harsh words to the Executive Director; it is all out in the open now. Let this post be the official start to the 'slow clap' for the openness and candidness with which the clinic lawyers, Amina, Richard, and Mary have handled this issue... Thanks to whoever sent this in...


November 24, 2006

To the DLS Community

This letter is written in response to the letter, which was sent to all of you by the Executive Director on November 23, 2006.

1. The Executive Director states: “Mary and Richard have terminated their retainers with the clinic in the course of a disagreement about the credit student requirements”. In fact, the criminal review lawyers did not terminate their retainers with the clinic because of a disagreement about credit course requirements. This fall, all four clinic lawyers, Amina Sherazee, Claire Hepburn, Richard Litkowski and Mary Misener had very grave concerns about the management of the clinic by the Executive Director. In particular, the lawyers were concerned that the Executive Director was systematically blocking repeated attempts by staff and students, including the students on the Executive, to undertake a meaningful examination of the allocation of public resources in the clinic and the areas of law which we practise. We all believed that such an examination was urgently needed to improve our capacity to take on criminal files. We all believed that the criminal file moratorium was undermining our community service and preventing many students from gaining a meaningful educational experience. We were also concerned that the moratorium was harming the credit course. Rather than meet with us collectively to openly explore alternative methods of allocating our resources and apportioning file work among us, the Executive Director took the position that a file moratorium and changes to credit course requirements were the answer. We were concerned about the management style of the Executive Director. Initially, both Amina Sherazee and Mary Misener approached the Executive Director individually and then together about the credit course and the moratorium. The Executive Director permitted us to speak and then she dismissed us without engaging in any discussion and without giving any indication of what her views were or what, if anything, would be done. We made repeated requests to have all four lawyers meet with the Executive Director about our concerns. She refused to meet with us collectively. She took the position that, while she would be happy to meet with each of us individually, she would not attend any meeting where more than one lawyer was present. We put our concerns about the credit course and the management of the clinic in writing and sent a memo to the Executive Director and to the Dean. We received no response. We set up a meeting with the Dean. One day before the meeting was to occur, the Dean’s office cancelled our meeting. We each received a letter from the Dean informing us that the course is entirely within the jurisdiction of the Executive Director. The Dean expressed her disapproval of our “unprofessional tone”. She informed us that each of us would be contacted to attend an individual meeting with the Dean and the Executive Director “to ensure that DLS remains a professional working environment and provides our students with positive clinical experiences”. In response, Richard Litkowski and Mary Misener resigned and Amina Sherazee demanded an immediate public apology from the Dean.

2. It is true that we have serious concerns about the credit course. Even before the course started, we expressed our concern to the Executive Director that many of the credit students would not have enough civil files. When we reviewed the mid-term assessments, we identified many students who needed to take on more substantive work. Let’s be clear about the purpose of the mid-term assessment. It is not a grading tool. No one who is assessed below the required number of files at the mid-term point fails. The mid-term assessment is designed to alert the student and the lawyers if the student does not have enough substantive file work. In past years, we have always successfully found enriching work for students. No one has ever failed the course. Our practice has been to meet with any student who was below the course requirements and to work with them to find active files. This year, some students who were below the requirements came to us for more work. They were assigned cases which challenged them and from which they learned a great deal. Other students did not come to us. Instead, after we completed the mid-term review, the Executive Director instructed us to re-assess all of the credit students and to give them credit for work which has never received credit in the past. For example, students were now to receive credit for administrative tasks such as opening and closing files and for attending set dates and writing routine letters. We objected to such a fundamental change in the course for a number of reasons. First, we believed it was unfair to students who were already doing the substantive work required to pass the course. Second, we believed that it would rob those students who were not yet meeting the course requirements of the opportunity to experience meaningful legal work. Finally, we did not wish to participate in a fiction where we were to state that students were meeting the same requirements, which have been met by all the students who have taken the course since its inception, when they were not. Ultimately, it is not up to us whether the course is fundamentally changed. But surely our views should be considered in any review of the course. And if the course is changed, it should be done openly and officially.


3. The Executive Director states that we served over a thousand clients last year. This is true. Many of these clients come to us only for notaries. We also carry a healthy file load. For example in February 2006 (before Lisa Cirillo took a leave of absence) our active file load was: 237 criminal, 77 POA and 176 civil files. Our caseload is on track despite the fact that one of our civil review lawyers, Lisa Cirillo, took a 6-month leave of absence this summer. The reason our file numbers are still healthy is that the criminal review lawyers took on an enormous amount of work throughout the summer. Each criminal lawyer is retained to provide only 8 hours of review per week. Each lawyer provided many many hours in excess of his or her retainer. We were happy to step up to assist. But we quickly became aware that the burden of keeping the clinic on track was falling unfairly upon criminal review. Our suggestion to move review of University Affairs from Mary Misener to the Executive Director, a lawyer with a wealth of experience in administrative law, was summarily rejected by the Executive Director. When Claire Hepburn offered to take over UA review the Executive Director would not permit it. Claire was earning a weekly rate of $1082.25 while each criminal review lawyer earned $599.50. On her own initiative, Claire cut back her paid hours due to a lack of work while the criminal lawyers working well beyond their retainers. The Executive Director refused to move a summer student who joined the clinic in July, out of UA and into an area supervised by Claire Hepburn , despite Mary Misener’s request not to burden her with additional work.

3. The Executive Director points out that criminal law funding has increased 70% over the last five years as if to say that we are whining about nothing. Statistics can be manipulated to support almost any proposition. Here is one: each criminal lawyer’s income from the clinic has increased by 100% from the $15 000 each was paid annually for review during the 1990’s. It should be clear to all of you that none of the lawyers is here for the money. The issues at stake are these: using our resources most effectively to meet community needs and to enhance student education, ensuring that resources match demand, ensuring that all lawyers are treated fairly and with respect, and, most importantly, being able to discuss all of these matters in an open and collegial working environment.

4. The Executive Director addresses the criminal file moratorium. We have had criminal file moratoriums in the past. We have these moratoriums because the demand for our criminal law services is so huge. When there are no more students to take on a criminal file, we have to turn away potential clients until a student caseworker becomes available. The current moratorium was imposed by the Executive Director as a “solution” to the fact that clinic resources do not adequately support the criminal division. This directive required a cutback in the number of cases we took on. The lawyers expressed strong objection to it on principle because they were offended by the idea of stopping willing students from assisting needy clients. However, we were reassured by the Executive Director that civil files would flood in to fill the gap. Civil files did not flood in to fill the gap. We all would like an open examination of resource allocation and our areas of practice.

The Executive Director asserts that the Executive has been involved in repeated discussions about criminal law resources since last summer and that Mary Misener has participated fully and that all ideas have been considered carefully and exhaustively. The facts are these: to the contrary, the Executive Director has systematically blocked all efforts taken by lawyers and student Executive members to have a meaningful examination of our resources, of our case selection and of other potential sources of revenue to support the clinic. In her capacity as criminal review lawyer representative, Mary Misener raised the issue of criminal law resources at the clinic’s annual planning meeting in July 2005. Ms. Misener pointed out that the demand for criminal law services was pressing, that the cases were challenging and highly educational and that 16 hours of review was not adequate. She also raised the possibility of criminal lawyers not reviewing University Affairs. She suggested that one way to open up more criminal review hours would be to move UA review, which involves administrative law, to another lawyer or to the Executive Director. The Executive began a lengthy preliminary discussion of resource allocation and areas of practice and discussed ways to secure more funding for the clinic. The students were very enthusiastic and keenly interested in considering all ideas. In particular, the student executive members were interested in advocating for additional funding from the law school to support the criminal law section of the clinic. The Executive Director told them that going to the law school for additional funding would backfire and would undermine her significant efforts to enhance our position at the Faculty. It became clear that these issues were large and important ones which required more time for examination than the meeting would permit. A temporary criminal file moratorium was imposed. No task force was struck. Nothing further was done.

Immediately after that 2005 Annual Planning meeting, the Executive Director met privately with Ms Misener. She stated that Ms. Misener had ambushed her at the meeting. She accused Ms. Misener of manipulating the students into soliciting funds from the law school for her own economic benefit. She stated that, as their supervising lawyer, Ms. Misener had significant power over the students and that she was abusing that power by complaining about her compensation and hours of work to them. She directed Ms. Misener not to discuss with any student, including the students on the Executive, her hours of work, the amount of her compensation, or the areas of law which were assigned to her for review. The Executive Director took the position that hours of work, levels of compensation and areas of a lawyer’s practice were all personnel issues.

The 2005 criminal moratorium was very brief. The criminal lawyers decided that it was wrong in principle to turn away needy clients when there was a willing student to take the case and lifted it. They continued to work beyond their retained hours.

At the 2006 Annual Planning meeting, Ms. Misener, on behalf of both criminal lawyers , raised the issue again. By now, the work imbalance had only worsened because of Ms. Cirillo’s leave of absence. The criminal lawyers took the position that although they had been prohibited from discussing their retainers or their hours, issues of resource allocation and areas of practice were appropriate for discussion by the Executive at an annual planning meeting . They took the position that these issues had policy dimensions that were very appropriate for “annual planning”. Accordingly, on behalf of the criminal division, Ms. Misener again raised the need for the Executive to examine resource allocation. She pointed out that resources were allocated based on, at best, a 50%-50% civil-criminal model—even if every civil file were substantially more complicated and time consuming than criminal cases. She pointed out that in reality criminal files significantly outnumbered civil. The student members of the Executive again expressed their concern and their keen interest in ensuring that the criminal division was properly supported. The student Executive members expressed their desire to explore additional avenues of financial support for the clinic. It was decided that a “mini task force” would be struck to examine areas of practice and resource allocation. The Executive Director made it very clear that fundraising and lobbying the law school for more resources were strictly out of the question.

After the 2006 Annual Planning meeting, the Executive Director again insisted on a private meeting with Ms. Misener. She accused Ms. Misener of having been on a campaign to create a full-time prestigious and high-paying position for herself since 2004. She referred to the period from June 2004 until April 2005 when the Executive Director took a sabbatical and Ms. Misener served as acting Director and credit course instructor. The Executive Director noted that during that period the number of criminal files and the number of students doing them significantly increased. She accused Ms. Misener of orchestrating these increases as part of a campaign to eliminate all other areas of practice and to turn the clinic into a criminal clinic. Ms. Misener had no desire to turn the clinic into a criminal clinic. She greatly enjoyed working with her colleagues, Amina Sherazee, Lisa Cirillo and Claire Hepburn. In reality, the increase in criminal files and the number of students doing them that occurred when Ms. Misener was the acting Executive Director followed from the fact that Ms. Misener not only acted as Executive Director and credit course instructor but also continued to do criminal and UA file review.

Another Executive meeting was convened in August 2006. The issue of resource allocation arose when it became clear that we had a huge number of upcoming trial dates because we had so many criminal files. Again, the student Executive members expressed their desire to pursue more funding from Legal Aid, from the law school or from other funding sources. Again, they expressed their concerns about fairness to the criminal lawyers. Ms Misener was stopped from speaking to these issue by repeated admonitions from the Executive Director that any comments she might make would touch on “personnel” matters.


5 .In her letter, the Executive Director suggests that the Executive is hard at work looking at resource allocation and community service through a “mini-task force”. In fact, this mini-task force does not exist. Student executive members have volunteered to serve on it, but the Executive Director has never convened a meeting. Its complete membership has yet to be determined. Indeed Mary Misener attended the Executive Meeting in November 2006 and asked why the promised task force had not been created. The student Executive members supported moving forward with the task force but the Executive Director strongly resisted. She urged the Executive to wait until the law school finished conducting its academic planning review. The Executive Director sets out the “Criteria for Mini-Task Force” at the end of her letter. No one spent any time devising these “criteria”. They were lifted verbatim by the Executive Director from the clinic’s “Criteria for Considering New Areas of Law”, a document which was created some years ago when the clinic decided to expand into Immigration and Family law.

6. The Executive Director asserts: “nobody has been ‘constructively dismissed’. Whether anyone has been constructively dismissed is an interesting legal question.

7 The Executive Director reassures you that it is not unusual for clinics to go through periods of change and renewal. It may not be unusual for other clinics to go through periods of change but it is certainly unusual for DLS. Over the years, the clinic has had very few personnel changes. For example, Ms Misener has been working at the clinic since 1994 as a part-time review lawyer. While continuing to do UA and some criminal file review through 2004-2005, she also served as the acting director of the clinic for 10 months. Mr Litkowski has been at the clinic since the late 1990’s as well. Linn Kennedy has been with the clinic since 1995. In fact, the clinic has had very little staff turnover. Ms Sherazee did not replace anyone. The clinic expanded when she joined. Martha did not replace anyone. Her position was added to meet ever-increasing paperwork demands from Legal Aid and from the courts, which were overwhelming Linn Kennedy. The Executive Director did not replace anyone when she came to the clinic. Prior to that, the clinic did not have an Executive Director.

8 .It is true that management should not reveal personal information about individual staff members. In a positive workplace, management’s duty of confidentiality protects the staff. It is not used as a device to shut down meaningful discussion of important issues.

9. The Executive Director closes her missive by stating this: “In the meantime, I do want to emphasize how important it is that our discussions are conducted in a civil, calm, responsible manner. In particular, no student at this law school should be publicly denigrated by anyone, least of all their supervising lawyers.” We are offended.

10. Lastly, let it be perfectly clear: both this year’s and last year’s student Executive members have listened to and tried to respond to our concerns about resource allocation and areas of practice in the clinic. Both student groups have expressed their enthusiasm for finding more resources, for examining problems, for finding solutions, for engaging in deep discussions. The other lawyers, Lisa Cirillo and Claire Hepburn, have also repeatedly expressed their willingness to put everything under scrutiny in the interest of improving the clinic. At every turn, these discussions have been frustrated, blocked and delayed by the Executive Director.



Richard Litkowski
Mary Misener
Amina Sherazee