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Doing Good Can Be Good For Foster Children, the Developmentally Disabled & Practice

Doing Good Can Be Good for Florida’s  Foster Children, the Developmentally Disabled, and Even Your Legal Career — a summary of a presentation to the Jacksonville Bar Association to encourage lawyers to do pro bono representation which occurred on March 19, 2009.*

By Howard Talenfeld

When I attended law school, like many other students, I did not pursue any specialization. After launching my practice as attorney in 1980, I was fortunate and handled significant commercial litigations (and not so important small claims cases), large personal injury claims (and not so important soft tissue injury cases), critical cases behalf of a municipality (and some traffic citations), and appeals in cases affecting thousands of people (and appeals affecting few).

Indeed, by many measures I was successful and even made partner in my present firm, Colodny, Fass, Talenfeld, Karlinsky & Abate, P.A., after one year of practice. However, something important was missing.  In spite of my financial, personal and professional successes, my practice did not give me great personal satisfaction.

In 1988, my law firm began representing the Florida Department of Health & Rehabilitative Services (“HRS). It happened as a fluke because one of its ALF licensees was seeking to hold the Governor Martinez in contempt. This opportunity occurred because our firm had a good reputation for its work as outside counsel hired by the state of Florida Division of Risk Management, and my partner, Joel Fass, was also the “go to” lawyer for Department of Regulation prosecutions. Our immediate success in this case mushroomed in to representing HRS as outside counsel across all of its major program areas: Children & Families, Delinquency, Economic Services, Developmental Disabilities and the Office of Licensing & Certification.

However, it was no accident that this occurred.I had always had a general interest in disability issues because my sister, Bess suffered from retardation. However, once immersed in HRS’s class action litigations challenged its foster care, delinquency, mental health and disability systems, there was no turning back, my interest in the positive work that we could do to improve these systems and the lives of thousands of children and adults became my life’s passion.

As Florida has always underfunded these systems, it was besieged with class action litigation involving all of these systems with names like M.E. v. Martinez, Bobby M v. Graham, Children A-F v. Chiles,  Sanbourne v. Martinez and G.C. v. Coler.  All of these cases involved persons who had been somehow harmed by HRS and were brought on behalf of classes of persons similarly situated against Defendants who were Governors, Secretaries and other high level Florida officials.

Each of these cases involved hundreds or thousands of persons — individuals who were being abused, neglected or forgotten across Florida, and we were the attorneys who had the privilege of defending state officials who wanted to help these persons and fix the systems. We were the lawyers who had the opportunity to see the commonalities of defending large social service systems in claims brought pursuant to 42 USC section 1983 and other civil rights statutes and figured out how to change the old defense strategy of denial and defend our clients’ right to fix them. We were even so successful in this approach that national associations turned to us to give their state social service leaders counsel on how to defend these cases.

Unfortunately for my career, in the mid-1990s, the firm’s representation of this agency ended when a former DCF Secretary chose not to use our firm as outside counsel. Some state officials have since questioned that decision.

However, once I had seen the faces of Mathew, Bobby, Children A-F, G.C. Deidre and persons like them, I could never go back to the mundane world of just fighting about money. We had the unique opportunity of changing the lives of persons who desperately needed help — thousands of them across the state of Florida, so I could never go back to my previous practice of fighting about just money.

At first, because my litigation adversaries knew that I had done the “right thing” in defending Florida’s social service systems, I was invited to sit on the Board of the Youth Law Center, a national organization based out of San Francisco and Washington D.C. that fought to protect at-risk children in delinquency and dependency systems. Several years later, our law firm began representing Florida children and families in foster and state care. We fought to protect children from dangerous situations, helped thousands of kids find a better life, and raised awareness about society’s most vulnerable citizens.

In our role as Florida lawyers representing children, our firm joined the Youth Law Center in a class action seeking to improve Florida’s child welfare system. In 1998, we filed Valerie Ward v. Feaver, the Broward County Foster care class action, which almost tripled the budget in Broward County. It also improved child welfare practice by raising Florida official’s consciousness as to the importance of guarding against the epidemic of child-on-child sexual abuse and the surprisingly new notion that foster children need their education as much as their families. We also took on many pro bono cases for foster children and special needs children.

As part of our private practice, we have also initiated many damage actions and secured recoveries on behalf of these clients – money that is usally placed in a special needs trust and which helps pay for treatment and their survival long after the state has dumped them after the age of 18. In Roes v. DCF, this was the first time in Florida that the civil rights statute, 42 USC section 1983, was used to recover damages far in excess of the sovereign immunity caps set in Florida Statute section 768.28. See Case Studies. My law firm won a monetary settlement of $5 million for six children who were abused by a foster mother who imprisoned them in her home and treated them like caged animals.

Many similar successes and lawsuits on behalf of foster children followed. Just recently, after raising these issues for 10 years in the federal courts in many cases, our firm finally helped establish the Eleventh Circuit precedent which has enabled others to brings theses cases. In H.A.L. v. Foltz, No. 07-15791 (11th Cir. 12/15/2008), the Eleventh Circuit Court in Atlanta wrote a decision construing 42 USC section 1983, and was the first federal appellate decision in the country allowing a recovery as a result of child-on-child sexual abuse. See Case Studies.

As pro bono attorneys representing the developmentally disabled, we volunteered to represent a foster child to determine his eligibility for services and created the Florida precedent that defined mental retardation, so the Agency for Persons with Disabilities could no longer arbitrarily deny significant benefits to those vulnerable persons who can no longer survive in the community. See Case Studies for Webb v. Florida Department of Children & Family Services.

In the ground-breaking Baumstein v. Sunrise Communities case, the Third District Court of Appeal’s decision was the first to establish a private cause of action for damages based upon violations of the Florida Bill of Rights for the Developmentally Disabled. See Case Studies.

Atop these victories, our firm has donated thousands of hours to various organizations — pro bono efforts which have further helped those in need, as well as raise the stature and prominence of our practice. Most notably, as a founding Director and President of Florida’s Children First, I have been privileged to help lead our organization in unifying the voice of foster children in Florida in the fight to have them represented by guardians and attorneys in their dependency cases.

We have also significantly contributed to the systemic improvement of Florida’s foster care system. This statewide not-for-profit is supported by the Florida Bar Foundation, and works to protect the legal rights of children.  See www.floridaschildrenfirst.org.

Indeed, when I started practicing law, I had no idea that within me there was a champion for children, the developmentally disabled, and other vulnerable persons in social services system. After  helping those who were desperately in need of legal representation, my career took a dramatic change in course. My partners and I have been able to change Florida’s social service system and make a difference.  Because of this work, people also see us as respected leaders in the arena – and a trusted resource for down the road.

I challenge each one of you to represent Just One Child or volunteer some time helping someone less fortunate!

Those of us who are passionate after the experience will find a way to make this our career; those who are less engaged still will feel that they have made a difference in someone’s life.

As a result of these efforts, we feel that our careers as lawyers are more complete, and as a consequence also continue to receive valuable new opportunities. We also receive many requests to help others help foster children and its population developmentally disabled. The result for me has been a far more satisfying career than just fighting about money. And just maybe something different will happen to you after you have the privilege to know someone who is less privileged and fight for their rights.

*Talenfeld delivered his entire address on March 19, 2009, at the Jacksonville Bar Association CLE program, “Pro Bono You Can Handle:  Use Your Skills to Help a Jacksonville Child in Need.”

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