Providing Pro Bono Services to Financial Abuse Victims
Russell Butler, Paula Pierce  -  2011/10/13
http://ovc.ncjrs.gov/ovcproviderforum
 
 
What is the best way for me to find and engage a pro bono provider for the financial abuse victims I work with? This is one resource that our agency is severely lacking, and we have yet to figure out how to find and approach our allies in the legal profession.
 
1.  Jaimee
 One way is working with your local bar association. If you aren't having luck, you may suggest a training on using the new FTC probono guide for assisting victims of identity theft. http://www.idtheft.gov/probono/index.html You may find attorneys who are interested, but just need some training on the topic.
 
2.  Russell Butler
 There may be a legal aid program that serves clients in your area. If so, reach out to see if they can assist. Start by trying this website and click on the jurisdiction where you need to find an attorney and explore the resources in the community; http://apps.americanbar.org/legalservices/findlegalhelp/home.cfm. Another alternative would be for you to reach out to law firms or attorneys in your area or a lawyer referral service in the community. If there is a criminal prosecution or potential prosecution, reach out to the National Crime Victim Law Institute to see if they can assist with finding an attorney to help the client regarding victims rights; http://law.lclark.edu/centers/national_crime_victim_law_institute/professional_resources/technical_assistance. One size does not fit all.
 
3.  Russell Butler
 What may be best may depend upon what resources are available in your community and the needs of the specific case. Therefore, there may or may not be a best way depending upon your community. Here are some options for you to explore: If you have a law school in the area, try contacting the school; http://apps.americanbar.org/legalservices/probono/lawschools/home.html.
 
 
1. What is your suggestion and approach to how we can help victims if after the initial investigation agent found no direct harm to victims and the case is completed it is later discovered that PIIs were sold and victims PII is now compromised, which is often the case. The revised 2011 AG Guidelines does not address this. The Guidelines seem to weaken ID victims rights if it cannot be proved on the facts known at the time if one's PII was compromised. 2. I have never experienced a financial entity notifying victims of a compromise to their account. If anything they don't want victims to know. They send them a new credit card and absorb the dollar loss. What can we do to encourage financial institutions to work with us in a more positive way on behalf of victims
 
1.  Paula Pierce
 In response to Crystal: Check your state's laws to see if the consumer has any rights regarding credit card companies. Really, holding companies accountable in the issuance of credit is a legislative issue.
 
2.  Russell Butler
 It is important to note that restitution is mandatory in the case of including any offense committed by fraud or deceit and that includes identity theft. 18 U.S.C. 3663A (b) (6). http://www.law.cornell.edu/uscode/usc_sec_18_00003663---A000-.html Depending upon the charge, discretionary restitution for identity theft may also be available to the victims time in repairing the victims credit. 18 U.S.C. 3663 (b)(6) in the case of an offense under sections 1028 (a)(7) or 1028A (a) of this title, pay an amount equal to the value of the time reasonably spent by the victim in an attempt to remediate the intended or actual harm incurred by the victim from the offense. http://www.law.cornell.edu/uscode/usc_sec_18_00003663----000-.html
 
3.  Crystal Utley
 How we can we hold credit card companies and other service providers more responsible and cause them to be more careful in confirming an applicant's identity?
 
4.  Russell Butler
 The best faith obligations seemingly require the government to notify victims regarding the possibility an amended restitution order for subsequently ascertained restitution damages. The crime victim or the crime victims lawful representative, and the attorney for the Government may assert the rights described in 18 U.S.C. 3771 (a) and that includes the victims right to full and timely restitution. Best faith efforts would likewise apply to the attorney for the Government seeking an amended restitution order.
 
5.  Russell Butler
 the victim shall have 60 days after discovery of those losses in which to petition the court for an amended restitution order. Such order may be granted only upon a showing of good cause for the failure to include such losses in the initial claim for restitutionary relief. http://www.law.cornell.edu/uscode/usc_sec_18_00003664----000-.html
 
6.  Paula Pierce
 Answer to Part 2, cont'd: . Privacy Rights Clearinghouse, Consumers Union, and other consumer groups have been working on this issue for years. Having state laws has helped enormously. The sad bottom line here is that businesses lose billions of dollars to identity theft every year, so their financial best interest is in conflict with the best interest of their customers who become victims. (end answer)
 
7.  Paula Pierce
 Answer to Part 2 cont'd: There are currently bills before Congress that would amend the Gramm-Leach-Bliley Act (the law that makes financial institutions have procedures to protect their customers privacy and give customers the chance to opt out of information sharing) to require financial institutions to notify customers when their information has been compromised. See S 1207 and HR 1841, the Data Security and Breach Notification Act. The bills are currently in committee, but I should warn you that there have been similar bills introduced in the previous 3 sessions, and they have died.
 
8.  Russell Butler
 While it is clearly better to notify victims earlier, the best faith requirements would clearly apply and include when there is discovery of the damage to PII. Late efforts are clearly better than no efforts.2.If restitution may be an issue, 18 U.S.C. 3664 (d) (5) provides.If the victims losses are not ascertainable by the date that is 10 days prior to sentencing, the attorney for the Government or the probation officer shall so inform the court, and the court shall set a date for the final determination of the victims losses, not to exceed 90 days after sentencing. If the victim subsequently discovers further losses,
 
9.  Paula Pierce
 I am answering Part 2 of your question. My answer will be in several pieces.The good news is that most states have enacted laws that require institutions to notify customers when their information has been compromised. So, look to your state law.
 
10.  Russell Butler
 1.If the victim has not already been added to VNS, including the victim in VNS would be the first step. 18 U.S.C. 3771 (c)(1) requires agents of the United States to provide best efforts even if the harm to the victims is ascertained later in the case. Government Officers and employees of the Department of Justice and other departments and agencies of the United States engaged in the detection, investigation, or prosecution of crime shall make their best efforts to see that crime victims are notified of, and accorded, the rights described in subsection (a). http://www.law.cornell.edu/uscode/18/usc_sec_18_00003771----000-.html
 
 
Who could I contact/email to ask legal questions?
 
1.  Russell Butler
 It depends on the nature of your request. It appears as you may be from upstate New York. If this is correct, I suggest that you start with Lifespan of Greater Rochester. They lead one of ten, new federally funded coalitions to facilitate assistance to identity theft victims. To see if there is a coalition in your area, check out the follow URL: http://identitytheftnetwork.org
 
 
Why are foster children increasingly becoming victims of ID theft and how can foster children protect themselves?
 
1.  Russell Butler
 Those children who become victims need to receive the same services as any other victims with assistance in civil and criminal matters as any other victims. Older children should be provided information regarding their rights as victims including where to seek victim and legal assistance if needed. For any child victim, the appointment of a guardians ad litem should be considered.
 
2.  Russell Butler
 It may be that foster children have been victims of ID theft in the past, but it was not discovered. Depending upon the age of the child, it may be difficult for children to protect themselves. Those agencies that have legal care and custody of foster children should periodically check the credit of children who are under the care of the state. When violations occur, those cases should be reported to law enforcement and prosecutors.
 
 
How can we locate pro bono attorneys that will take these cases?
 
1.  Crystal Utley
 The ABA's Division of Pro Bono led by Steve Scudder can also suggest entities who place cases with pro bono attorneys in your state and nationwide if you do not find a good fit on probono.net.
 
2.  Paula Pierce
 There are many ways. Try your local legal aid provider. Many have pro bono panels that handle consumer cases. Also, try www.probono.net. This is a portal for state and regional pro bono websites. If your state has a website, then you will be able to access pro bono attorneys through the websites. Yet another way to recruit pro bono attorneys is to approach your local bar association.
 
 
Is it possible to secure pro bono services from attorneys that don't normally provide those types of services?
 
1.  Paula Pierce
 Absolutely! Many attorneys are willing to take these cases as long as they have resources to guide them. The best resource in my opinion is the FTC's Pro Bono Guide - a step-by-step primer on assisting ID theft victims that includes forms and statutes. The URL is http://www.identitytheft.gov/probono/.
 
 
Hi, Do either of you have any experience or knowledge which you can share regarding id theft victims who need expungements due to criminal records created by id theives using their name as an alias in the commission of other crimes? We do not have a specific statute which addresses this but are hoping to change that...
 
1.  Paula Pierce
 You are absolutely right. Part of this has to do with the economy. If an employer has multiple qualified applicants for a job, they are probably not going to take the time to understand the passport. I suggest that victims of criminal ID theft get a letter of clearance from the PD where the impostor offenses occurred and staple a copy of it to their job applications so that the employer knows ahead of time that the person is a victim of criminal ID theft. Sometimes it works, sometimes it doesnt. Federal legislation in this area would be helpful.
 
2.  Crystal Utley
 Thanks, so far the problem has been with employers doing background checks who do not understand the id theft victim's passpport which we use.
 
3.  Paula Pierce
 (last part of answer) The ultimate problem is that even after an expungement, the victim's name remains on the ID thief's record as an alias so when background checking companies run their data, they add the criminal's record to the victim's. This means that even after expungement, the ID thief's record continues to follow the victim.
 
4.  Paula Pierce
 (answer continued) Texas also has a state stolen identity file statute much like the stolen identity file program maintained by the NCIC in which a victim of criminal ID theft can be fingerprinted and photographed by their local sheriff, file an affidavit, and be provided with a PIN so that if they are stopped by law enforcement, they can prove they are a victim. Several states have an ID theft passport program through their Attorney General in which a victim gets an ID card noting they are a victim. (answer continued on one more screen)
 
5.  Paula Pierce
 This varies state-by-state, and states have widely differing ways of dealing with criminal ID theft which is a HUGE problem when the ID thief is committing crimes in multiple states. Some states have expungement statutes specifically for ID theft victims. Texas is one, and you could look at our expungement statutes as an example. (answer continued)
 
 
Are there any types of financial abuse cases that wouldn't be able to receive pro bono services? Or that someone would choose not to help without compensation? I wouldn't want to send someone to an office and then have them get turned away.
 
1.  Paula Pierce
 If a victim were a high wage earner who could reasonably be expected to pay a lawyer, some pro bono attorneys might balk at serving them. Im not saying this is fair having to pay attorneys fees is like adding insult to injury to a victim. Also, sometimes attorneys may refuse a case for their own reasons. When making a referral, I let the victim know that the attorney is not obligated to take their case. The consultation alone is a valuable service.
 
 
What are the biggest challenges to prosecuting identity theft cases, pro bono or otherwise?
 
1.  Russell Butler
 There are a number of challenges. First, you could have the victim in one jurisdiction and the offender in another jurisdiction. Second, the offender could be in some country outside the United States. Third, assuming that the offender is appended, there may be thousands or one hundred thousand victims. We need to improve the technological ability of law enforcement and prosecutor to prosecute identity thieves as well as to identify and serve victims of crime.
 
 
Going back to the question about the biggest challenges ... if there is a case with hundres or thousands of victims, what is the best way to reach them with limited resources (which often accompany pro bono work)?
 
1.  Russell Butler
 There is a need to utilize such technological advancements to assist potentially large numbers of ID theft victims.
 
2.  Russell Butler
 I believe that exploring technology holds the most promise. Many times the victims of identity theft are victims of cybercrime. Locating the victims contact information from the perpetrator may also provide law enforcement the victims email addresses. If that can occur, that may present an easy way to contact victims. The pro bono legal service community has developed technology to assist pro bono attorneys serve victims using software called HotDocs. http://www.prweb.com/releases/hotdocs/pro-bono-net/prweb4608054.htm Moreover, for those who do not have access to an attorney, the pro bono legal community has developed self-help tools for individuals to develop the documents they may need to help themselves. http://www.kentlaw.edu/cajt/A2JAuthor.html
 
 
Are you aware of any training programs available to attorneys, to learn the nuances of providing services to victims of financial abuse?
 
1.  Paula Pierce
 OVC-TTAC has an online training available! It takes approx. 3-4 hours to complete. Here's the URL: https://www.ovcttac.gov/identitytheft. Also, the FTC pro bono guide (www.idtheft.gov/probono) is good. And, lots of attorney trainings are including ID theft modules. Check your state's Continuing Legal Education programs for more information.
 
 
1. Please give a few specific examples of pro bono assistance you are familiar with that was provided to federal financial fraud victims?
 
1.  carol Ring
 Whom may I contact in Philadelphia (Bristol) area for assistance in obtaining the help listed in the above post? Thank-you.
 
2.  Russell Butler
 Maryland Crime Victims Resource Center, Inc. has assisted federal victims in many ways. Some examples include: 1. Assisting victims with creditors and others regarding legal issues caused by actions by perpetrators. 2.Assisting victims in contacting federal law enforcement and prosecutors. 3.Documenting and asserting claims of restitution in federal court. 4.Preparing and asserting victim impact statements in federal court.
 
 
Do you know how to acquire funds to cover the pro bono services provided?
 
1.  Paula Pierce
 Finding funding resources is a challenge! Some providers have been able to secure funding through state sources such as Access to Justice foundations. Some have sought private donations and corporate donations from financial institutions or companies that provide ID protection services, and it would be worth looking at Bar Associations to see whether they have any grant programs that might provide funding.
 
 
2. In addition to making a referal to the IRS Taxpayer Advocate Office, what other assistance options do you recommend for helping victims address the tax implications of the fraud they endured?
 
1.  Paula Pierce
 The Taxpayer Advocate's Office is a good resource as is the IRS's Identity Protection Specialized Unit. Their toll free number is 1-800-908-4490.
 
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