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					                                                                                     102B
                              AMERICAN BAR ASSOCIATION

       SECTION OF ADMINISTRATIVE LAW AND REGULATORY PRACTICE
                      CRIMINAL JUSTICE SECTION
      STANDING COMMITTEE ON LEGAL AID AND INDIGENT DEFENDANTS
                      SECTION OF ANTITRUST LAW

                        REPORT TO THE HOUSE OF DELEGATES

                                     RECOMMENDATION

1   RESOLVED, That the American Bar Association urges national, federal, state, tribal,
2   territorial, and local bar associations, in cooperation with state and local pro bono, lawyer
3   referral, and legal aid programs, to establish programs for representation of victims of
4   identity theft who need assistance in recovery from the crime.
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                                             REPORT

Introduction

         Identity theft is considered to be one of the most pervasive forms of white-collar crime in
the United States. According to an October 2006 survey by Ja velin Strategy & Research, more
than 8.4 million U.S. adults were victims of identity theft in the preceding year. 1 While this
crime takes many forms – from local vehicle breakins and trash theft 2 to international websites
gathering personal data 3 – “it invariably leaves victims with the task of repairing the damage to
their lives.”4

I.     Types of Harm from Identity Theft

               A.      Financial Harm

        In the aggregate, victims of identity theft suffer substantial losses. Estimates of aggregate
losses due to identity theft vary, but the President’s Identity Theft Task Force stated that “the
data show that annual monetary losses are in the billions of dollars.” 5 For example, the 2006
Javelin Research survey found that losses to businesses and others due to identity fraud totaled
$49.3 billion. 6

       There are many ways in which victims of identity theft may suffer direct financial harms,
varying with the types of information that identity thieves obtain and the ways in which that
information is used. These include misuse of their existing credit-cards and debit-card accounts,
opening of new accounts (including credit- or debit-card, loan, and utilities) by criminals,



       1
            JAVELIN STRATEGY & RESEARCH, 2007 I DENTITY FRAUD SURVEY REPORT at1 (2007),
abbreviated version available at
http://www.acxiom.com/AppFiles/Download18/Javelin_ID_Theft_Consumer_Report-
627200734724.pdf.
         2
            See, e.g., United States v. Gonzales (N.D. Tex., sentencing Oct. 21, 2005), summarized
at http://www.usdoj.gov/usao/txn/PressRel05/gonzales_jason_sen_pr.html.
         3
            In July 2007, Italian Guardia di Finanza officers arrested 18 Italian nationals and 8
foreign nationals participating in “phishing” (i.e., schemes that involve the use of emails and
websites – designed to look like those of legitimate banks, companies, and government agencies
– to persuade consumers to disclose personal and financial data such as bank and credit-card
numbers). See Sophos, Press Release (July 16, 2007), available at
http://www.sophos.com/pressoffice/news/articles/2007/07/italian-phish.html.
         4
            PRESIDENT’ S IDENTITY THEFT TASK FORCE, COMBATING I DENTITY THEFT : A STRATEGIC
PLAN at 1 (2007), available at http://www.idtheft.gov/reports/StrategicPlan.pdf.
         5
           Id. at 11.
         6
            JAVELIN STRATEGY & RESEARCH, supra note 1, at 1. This total loss is lower than the
reported aggregate identity- fraud loss of $55.7 billion in 2005. See id.


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issuance of government benefits or services in the victims’ names to unqualified individuals, and
purchases of motor vehicles and other valuable items with the victim’s funds or credit. 7

         Victims generally are not liable for debts that identity thieves create in the victims’
names. Where the misuse involves a consumer’s existing credit-card account, it can be relatively
easy for a consumer to remedy the situation, by calling the card issuer to report the fraudulent
transactions and providing supporting information. Where the misuse involves a consumer’s
existing debit-card or checking account, the consumer should ultimately be able to have the
fraudulently obtained funds restored to his or her account; pending resolution of his or her claim
to the financial institution, however, the consumer may be temporarily deprived of access to
those funds. In addition, in cases involving creation of new credit-card accounts, the victim may
not learn of the identity theft until a creditor or debt collector contacts him or her. That contact
may not take place until after the identity thief has already used those accounts and amassed
substantial debt in the victim’s name.

       In addition, victims may spend hundreds if not thousands of dollars recovering from the
crime. Expenses may include notary fees, certified mailings, hiring of counsel, and lost income.
Nonfinancial losses, such as lost time spent correcting credit reports, disputing fraudulent
accounts, and obtaining new identity documents, also can be substantial, as described below.

        Although many cases of identity theft involve smaller amounts of money, ranging fro m a
few dollars to a few hundred dollars, other identity thefts can lead to more substantial losses.
The 2006 Javelin Strategy survey found that while the median fraud amount per victim was
$750, the mean fraud amount per fraud victim was $5,720. 8 Because the median (i.e., the
midpoint of the range of losses per victim, where half are below and half above that midpoint) is
substantially lower than the mean (i.e., the total losses divided by the number of victims), these
data indicate that many identity-theft victims have lost thousands or tens of thousands of dollars,
if not more. 9 While losses of this magnitude can be burdensome for more affluent individuals,
they are devastating for persons of more modest means.

        Two cases that the President’s Identity Theft Task Force cited in its recently issued
Strategic Plan show how substantial a single victim’s financial losses can be:

       [I]n July 2001, an identity thief gained control of a retired Army Captain’s
       identity when Army officials at Fort Bragg, North Carolina, issued the thief an
       active duty military identification card in the retired captain’s name and with his
       Social Security number. The military identification, combined with the victim’s
       then-excellent credit history, allowed the identity thief to go on an unhindered

       7
           See, e.g., Federal Trade Comm’n, Take Charge: Fighting Back Against Identity Theft
(February 2006), available at http://www.ftc.gov/bcp/edu/pubs/consumer/idtheft/idt04.pdf.
         8
           JAVELIN STRATEGY & RESEARCH, supra note 1, at 1.
         9
           See, e.g., NIST/Sematech, Engineering Statistics Handbook § 1.3.5.1 (updated July 18,
2006), available at http://www.itl.nist.gov/div898/handbook/eda/section3/eda351.htm (where
right tail of two-tail curve is heavier than left tail, mean will be greater than median).


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       spending spree lasting several months. From July to December 2001, the identity
       thief acquired goods, services, and cash in the victim’s name valued at over
       $260,000. The victim identified more than 60 fraudulent accounts of all types that
       were opened in his name: credit accounts, personal and auto loans, checking and
       savings accounts, and utility accounts. The identity thief purchased two trucks
       valued at over $85,000 and a Harley-Davidson motorcycle for $25,000. The thief
       also rented a house and purchased a time-share in Hilton Head, South Carolina, in
       the victim’s name.

       In another instance, an elderly woman suffering from dementia was victimized by
       her caregivers, who admitted to stealing as much as $200,000 from her before her
       death. The thieves not only used the victim’s existing credit card accounts, but
       also opened new credit accounts in her name, obtained financing in her name to
       purchase new vehicles for themselves, and, using a fraudulent power of attorney,
       removed $176,000 in U.S. Savings Bonds from the victim’s safe-deposit boxes. 10

       It should be noted that identity-theft victims may spend more than de minimis amounts of
money out of their own pockets in trying to resolve their situations with creditors or
administrative or law-enforcement agencies. The 2006 Javelin Strategy survey found that the
mean consumer cost to resolve their identity-fraud problems was $535 – an increase of nearly 25
percent over the preceding year. 11

                B.     Non-Financial Harms

        In addition to direct financial harm, victims of identity theft often suffer non-financial
harms from which it may take substantially longer to recover. Among other things, victims
whose financial accounts have been misused may suffer damage to their credit standing and
general reputation in their dealings with legitimate businesses and government agencies. “One
reason that identity theft can be so destructive to its victims,” as the President’s Identity Theft
Task Force noted, “is the sheer amount of time and energy often required to recover from the
offense, including having to correct credit reports, dispute charges with individual creditors,
close and reopen bank accounts, and monitor credit reports for future problems arising from the
theft.”12 For example, victims often find it necessary to make multiple telephone calls and
write multiple letters to consumer-reporting companies, creditors and debt collectors. Those
calls and letters, however, typically depend on the victim spending still more time to gather the
information and documents needed to prove that they are not responsible for the accounts that
the criminal has created, or transactions that the criminal has conducted, in the victim’s name.

         Moreover, in some cases, when a criminal has used a victim’s identity in the commission
of a crime or in identifying himself to law enforcement officers at or before the time of an arrest
or first appearance in a criminal prosecution, the identity theft victim may unknowingly have a

       10
            Id. 10 (endnotes omitted)
       11
            JAVELIN STRATEGY & RESEARCH, supra note 1, at 1.
       12
            PRESIDENT’ S IDENTITY THEFT TASK FORCE, supra note 4, at 49.


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criminal record incorrectly created under his name. As a result, law enforcement records, such
as the National Crime Information Center (NCIC), may mistakenly list the victim’s name as
being associated with the criminal acts that the identity thief committed under the victim’s name.
This, in turn, can lead to mistaken arrests by law enforcement officers who rely in good faith on
those law enforcement records.

        The number of mistaken arrests of identity-theft victims is believed to be extremely small
in comparison to the estimated numbers of identity theft victims. Nonetheless, the following
examples from media reports show how severe and long- lasting the effects of criminal identity
theft can be:

!      California: In 2003, the State of California garnished the wages of a resident of the San
       Francisco Bay area, Jorge Arteaga, for failure to pay speeding tickets. At that time,
       Arteaga persuaded a judge that he was not the person to whom the tickets were issued, as
       the tickets pertained to a different car and a different address and the signature on the
       ticket was not Arteaga’s. Later in 2003, Arteaga was arrested twice on drug-crime
       related warrants, but reportedly again persuaded judges that he was not the criminal in
       both cases. In March 2006, however, Arteaga was arrested on yet another warrant in his
       name, for allegedly driving on a suspended license. While other records supposedly
       showed that Arteaga was a parole violator with two auto theft convictions, Arteaga
       asserted he knew nothing about those crimes. Because of Arteaga’s purported status as a
       parole violator, he was subject to a parole revocation hearing. At the hearing, the
       presiding commissioner reportedly looked at the mug shot of the actual criminal.
       Although Arteaga asserted that he was not the person in the photograph, the fingerprints
       associated with the rap sheet supposedly were Arteaga’s. As a result, Arteaga was sent to
       San Quentin Prison. Arteaga was released from prison only after Arteaga’s attorney
       reportedly wrote a letter to the warden. A California Department of Corrections later
       described the situation as “a minor clerical error,” explaining that “we have two former
       inmates, both on parole with the same name and we ended up accidentally switching their
       fingerprints in the files.” In January 2007, Arteaga reportedly obtained a judicial
       exoneration declaring that he was “factually innocent of the crimes committed by the
       imposter.”13

!      California: In San Francisco, a woman arrested for cocaine possession falsely told court
       officials that her name was Stancy Nesby, then failed to show up for subsequent court
       proceedings. A judge reportedly issued multiple warrants for the arrest of Stancy Nesby.
       Based on the mistaken warrants, from July 2002 to September 2004 the real Stancy
       Nesby was detained or arrested and jailed seven times by various California law
       enforcement agencies. Five of the arrests occurred after authorities in Shasta County,
       where the real Nesby was mistakenly arrested twice, reportedly asked the San Francisco
       Sheriff’s Department to remove the warrants from a state computer system. Nesby


       13
            Vic Lee, ID Theft Puts Innocent Man In San Quentin, KGO-TV, February 20, 2007,
http://abclocal.go.com/kgo/story?section=local&id=5052986.


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       eventually sued the City of San Francisco for the failure to remove the warrants from the
       system. 14

!      Wisconsin: In 1998, a man arrested on drug charges identified himself to police as
       Malcolm Boyd. A Janesville, Wisconsin resident, Malcolm Boyd, learned of the arrest
       and went to local police to correct the error. Four months later, after a traffic stop the real
       Boyd was arrested and detained on the same pending drug charges. After comparing
       Boyd’s photograph with that of the original individual arrested on drug charges, the
       police released Boyd. Soon after, Boyd was fired from his part-time job because
       (according to Boyd) “he was accused of lying about his criminal record.” 15 Some months
       later, Boyd was laid off from a full- time job but denied unemployment benefits because
       of his criminal record. Boyd was able to get those benefits reinstated, but then had his
       driver’s license suspended for failure to pay traffic fines. The next year, Boyd learned
       that the man using his name had been arrested in a neighboring county. To establish his
       innocence of those charges, the real Boyd provided his fingerprints to the local district
       attorney, and later received court documents establishing his innocence. Nonetheless,
       Boyd was arrested and detained again in 2002 and 2003, but later released. 16

!      United Kingdom: An Andover, England resident, Simon Bunce, reportedly entered
       personal data on a supermarket shopping website so that he and his wife could shop
       online. Thereafter, someone using Bunce’s name and address registered for a
       pornography website that pedophiles used. In connection with a United Kingdom law
       enforcement operation against child pornography, on two occasions in 2004 Bunce was
       arrested and his house searched. Police later reportedly sent Bunce a letter saying they
       were not taking any further action in the case because they had not found any evidence of
       wrongdoing on his computers or media storage devices. The police publicly confirmed
       that Bunce was not charged with any offense. 17

        In addition, criminals in some instances have even used the identities of deceased persons
to conceal their criminal status or activities. For example, in October 2006 Michigan authorities
arrested a convicted sex offender on identity-theft and forgery charges, after the sex offender
allegedly applied for a birth certificate in the name of an infant who had died in 1972, so that the
sex offender could move to the State of Oregon without having to register as a sex offender. 18
More recently, in April 2007, a Southern California woman was federally charged with stealing

       14
            Charlie Goodyear, A victim who keeps getting arrested -- tangled in a case of identity
theft, San Francisco Chronicle, Sept. 21, 2004, http://sfgate.com/cgi-
bin/article.cgi?file=/c/a/2004/09/21/MNGET8SAAO1.DTL
        15
            Bob Sullivan, The darkest side of ID theft, MSNBC, March 9, 2003, available at
http://www.msnbc.msn.com/id/3078488.
        16
            Id.
        17
            Dick Bellringer, Identity theft nightmare, Andover Advertiser, April 4, 2007,
http://www.andoveradvertiser.co.uk/mostpopular.var.1306843.0.identity_theft_nightmare.php
        18
            See Office of the Attorney General, State of Michigan, Press Release (October 17,
2006), available at http://www.michigan.gov/ag/0,1607,7-164-34739_34811-153805--,00.html.


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the identities of hundreds of deceased people and using their personal information to file
fraudulent federal tax returns that sought more than $1 million in refunds. 19 Such conduct can
create significant problems for surviving family members and for executors of the deceased
persons’ estates in restoring the deceased persons’ financial affairs and reputation.

II.    Existing Programs and Procedures to Assist Identity -Theft Victims

        Federal laws provide identity theft victims with some means of identifying and disputing
fraudulent transactions in their names. Typically, these laws place on the victims the
responsibility for carrying out the tasks of identifying and disputing such transact ions. Under
amendments to the Fair Credit Reporting Act (FCRA), 20 for example, consumers are entitled to
receive annually one free copy of their credit report from each of the three major credit bureaus,
can block the fraudulent entries on their credit reports caused by the identity thief, and can
request creditors to provide them with documents pertaining to the fraudulent accounts. 21

        In addition, the Federal Trade Commission (FTC) provides a toll- free number and a
website through which identity theft victims can report their identity theft and related
information for possible use by law enforcement, and access extensive written materials to assist
them in the recovery process. 22 Although the FTC provides support for identity theft victims,
neither it nor any other federal department or agency provides legal representation to victims
who may need counsel for dealing with creditors, debt collectors, or administrative agencies,
such as departments of motor vehicles and agencies that provide government benefits.

         Several not- for-profit groups also assist identity theft victims. The Identity Theft
Resource Center provides one-on-one counseling, and some of the country’s larger financial
institutions have developed the Identity Theft Assistance Center (ITAC) to assist customers at
the member companies in resolving their disputes with creditors and the consumer reporting
agencies. Although these groups provide meaningful assistance, they have limited capacity and
do not provide direct legal representation to the public.

         State laws vary substantially in the types of procedures and mechanisms they provide to
assist identity-theft victims in clearing their names. As with federal laws, these state laws also
place primary responsibility on the victims to use the re medial procedures and mechanisms for
themselves. For example, California, 23 Ohio, 24 and Virginia 25 are among the states that have


       19
            See U.S. Attorney’s Office, Central District of California, Press Release (Apr. 12,
2007), available at http://www.usdoj.gov/usao/cac/news/pr2007/052.html.
        20
            15 U.S.C. § 1581 et seq.
        21
            See Federal Trade Comm’n, Your Rights: Credit Reporting, available at
http://www.ftc.gov/bcp/menus/consumer/credit/rights.shtm.
        22
            See Federal Trade Comm’n,
http://www.ftc.gov/bcp/edu/microsites/idtheft/consumers/defend.html.
        23
            See Office of California Attorney General, Identity Theft, available at
http://ag.ca.gov/idtheft/.


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identity-theft “registry” or “passport” programs to which identity-theft victims can apply. In the
Ohio program, once law enforcement has verified that a particular person is an identity-theft
victim and a police report is taken, the victim can fill out a “passport” application with a law
enforcement officer’s assistance, typically in less than 10 minutes. The officer then enters into a
secure website certain identifying information about both the victim and the officer, as well as a
digital fingerprint, photograph, and signature of the victim that are uniquely associated with that
application. Upon receipt and verification, the Ohio Attorney General’s Office verifies the
information and issues the victim a “passport” with a unique identifier. Both creditors and law
enforcement can call a toll- free number to verify the passport, and law enforcement officers can
access all of the submitted information, including the digitized fingerprint, photograph, and
signature. 26 These programs are useful for the minority of identity-theft victims who might be at
risk of mistaken arrest, but do not offer legal representation to victims who may need continuing
advice or assistance.

III.   Legal Assistance to Identity Theft Victims

       As the preceding section indicates, both federal and state authorities have established
programs and procedures that provide some forms of assistance to identity theft victims. In
many cases across the country, however, identity theft victims who want to remedy the situation
and recover from the effects of the crime do not know what legal rights and information
resources are available to them. Even victims who might learn of specific resources to help them
recover may not fully understand the procedures necessary to make recovery possible, or be
confident about their ability to use those procedures effectively.

        Particularly where a criminal has committed crimes or fa lsely identified himself to police
with an innocent person’s name, the identity-theft victim is likely to have substantial difficulty in
rectifying the situation without legal assistance. In most cases, however, identity-theft victims
are likely to need assistance from trained lawyers in understanding the often confusing laws and
regulations that affect victims’ ability to resolve situations with creditors, correct business or
public records, and otherwise recover from the damage that identity thieves have done.

        It is also noteworthy that lower income consumers tend to have the most difficulty in
resolving their identity theft-related problems. According to the 2006 Javelin Strategy survey,
the misuse of accounts or information for the lowest- income group (i.e., less than $15,000 a
year) persists twice as long as the average and takes 70 percent longer to detect. Furthermore, on
average, victims in that group spend twice as long (44 hours) resolving the fraud as the highest-
income group (i.e., more than $150,000 a year). 27 Unlike high- income identity-theft victims,


       24
           See Office of Ohio Attorney General, Identity Theft Verification Passport Program,
available at http://www.ag.state.oh.us/victim/idtheft/fact_sheet.pdf.
        25
           See, e.g., Office of Virginia Attorney General, Identity Theft, available at
http://www.oag.state.va.us/FAQs/FAQ_IDTheft.html.
        26
           See Office of Ohio Attorney General, supra note 24.
        27
           JAVELIN STRATEGY & RESEARCH, supra note1, at 21-22.


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lower- income victims do not have the option of paying an attorney to assist in resolving
problems stemming from the identity theft.


       In recognition of this situation, the President’s Identity Theft Task Force stated:

       Although many victims are able to resolve their identity theft-related issues
       without assistance, some individuals would benefit from individualized
       counseling. The availability of personalized assistance should be increased
       through national service organizations, such as those using retired seniors or
       similar groups, and pro bono activities by lawyers, such as those organized by the
       American Bar Association (ABA). In offering individualized assistance to identity
       theft victims, these organizations and programs should use the victim resource
       guides that are already available through the FTC and DOJ’s Office for Victims
       of Crime. 28

The Task Force specifically recommended engagement with the American Bar Association to
develop a program focusing on assisting identity-theft victims with recovery:

       The ABA has expertise in coordinating legal representation in specific areas of
       practice through law firm volunteers. Moreover, law firms have the resources and
       expertise to staff an effort to assist victims of identity theft. Accordingly, the Task
       Force recommends that, beginning in 2007, the ABA, with assistance from the
       Department of Justice, develop a pro bono referral program focusing on assisting
       identity theft victims with recovery. 29

        The Task Force did not define the exact structure or operations that such a program
should adopt. Three considerations, however, should influence any decisionmaking about
provision of legal services to identity theft victims. First, it would be effectively impossible to
provide such services from a single location to victims throughout the United States. Second,
provision of legal services to identity theft victims frequently will require familiarity with
specific state laws, particularly consumer protection laws and laws specifically related to identity
theft. Third, there are at least three distinct types of programs by which people who are poor or
of modest means might obtain legal help with identity theft problems:

   1. Lawyer referral programs. The ABA works with a network of approximately 150 local,
      bar-sponsored, public service lawyer referral programs. These programs seek first to
      diagnose the type of legal problem being experienced by a person of modest means. The
      program then provides the caller with information on the best way to resolve the problem.
      These programs target people who have some financial resources, and who can afford to
      pay a lawyer, but who do not have the knowledge to find an appropriate lawyer. If the
      problem presented by the caller is best resolved by a lawyer (instead of a social service

       28
            PRESIDENT’ S IDENTITY THEFT TASK FORCE, supra note 4, at 49.
       29
            Id.


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       agency or other type of non- legal service organization), then the program refers the
       person to a lawyer with the appropriate skills/specialty.

   2. Pro bono programs. The ABA works with a network of about 950 local and state pro
      bono programs that serve clients who fall within poverty guidelines, using volunteer
      private lawyers to provide service.

   3. Legal aid programs. There is a network of local and state legal aid programs that serve
      clients who fall within poverty guidelines, using staff lawyers to provide service. The
      central point of contact for these programs is the National Legal Aid and Defender
      Association, rather than the ABA.

         For these reasons, this recommendation and report – consistent with the recommendation
of the President’s Identity Theft Task Force – propose the following approach to providing legal
assistance to identity theft victims. The recommendation urges national, federal, state, territorial,
tribal, and local bar associations, in cooperation with state and local pro bono, lawyer referral,
and legal aid programs, to establish programs for representation of identity-theft victims who
need help in recovery from the crime. Those state, territorial, tribal and local organizations are
in the best positions to determine which laws and regulations in their respective jurisdictions may
be useful in attempting to resolve an identity theft victim’s situation and finding appropriate
remedies. To facilitate the establishment of these pro grams, participating organizations such as
the American Bar Association, the U.S. Department of Justice, and the Federal Trade
Commission (FTC) should collaborate, and support and assist in the establishment of such
programs. This would include not only general outreach to and coordination with interested bar
associations and legal-service organizations, but also the development and dissemination of
materials for use in such programs. All three of the types of programs listed above will need
training materials to enable them to engage and support lawyers who can provide representation
to clients.

        Both the Department of Justice and the FTC are prepared to work with the ABA in
establishing and supporting this project. The FTC has begun to assemble suitable materials on
federal laws that attorneys would need to counsel and represent identity theft victims. With
assistance from the ABA and other bar associations, those materials could readily be
disseminated to bar associations and lawyer-referral services around the country. Because
certain laws relevant to identity-theft victims, such as identity-theft passport programs and other
consumer-protection laws, will vary significantly from state to state, assistance from state and
local bar associations would be necessary to develop additional legal materials that could be used
in providing legal assistance to residents of those states.

        It should be noted that ABA Model Rule 6.1, Voluntary Pro Bono Public Service,
supports the ABA adoption of this recommendatio n. Victims of identity theft, like the victims of
all crimes, have historically been disempowered by the justice system. The ABA, including
through its Criminal Justice Section, has been at the forefront of the effort to recognize that




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victims of crime have unique interests that must be recognized by the justice system. 30 The
direct and collateral consequences to crime victims, including victims of identity theft, often
necessitate comprehensive services for which legal representation is required. Lawyers should
have the resources to assist victims with their rights, and the ABA should facilitate making
available the legal services needed to victims of identity theft.

Conclusion

         Identity theft is a crime that can create unique, complex, and persistent problems for its
victims. Although legal representation of victims is only one component of a more
comprehensive societal response to identity theft, many victims throughout the country who face
significant challenges in trying to restore their good names and reputations would benefit from
such representation. The American Bar Association should join forces with national, federal,
state, territorial, tribal, and local bar associations to make representation of identity-theft victims
a reality, through pro bono, lawyer referral, and legal aid programs.

Respectfully submitted,

Michael Asimow
Section Chair
February 2008




        30
             See
http://meetings.abanet.org/webupload/commupload/CR300000/newsletterpubs/victimsreport.pdf.


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                               GENERAL INFORMATION FORM

                       To Be Appended to Reports with Recommendations
                      (Please refer to instructions for completing this form.)


Submitting Entity:      Section of Administrative Law and Regulatory Practice
                        Section of Criminal Justice

Submitted By:           Kimberly Knight, Section Director


1.     Summary of Recommendation(s).

The resolution urges national, federal, state, territorial, tribal and local bar associations, in
cooperation with state and local pro bono, lawyer referral, and legal aid programs, to establish
programs for representation of victims of identity theft who need assistance in recovering from
its effects.

2.     Approval by Submitting Entity.

The Section Council voted to approve the resolution and report on August 9, 2007. The Criminal
Justice Section approved co-sponsorship in early November 2007.

3.     Has this or a similar recommendation been submitted to the ABA House of Delega tes or
       Board of Governors previously?

Not to our knowledge.

4.     What existing Association policies are relevant to this recommendation and how would
       they be affected by its adoption?

ABA Model Rule 6.1, Voluntary Pro Bono Public Service, supports the ABA adoption of this
recommendation.

5.     What urgency exists which requires action at this meeting of the House?

The President’s Identity Theft Task Force, in its Strategic Plan, specifically recommended
engagement with the American Bar Association to develop a program focusing on assisting
identity-theft victims with recovery. Both the Department of Justice and the FTC are prepared to
work with the ABA in establishing and supporting this project. The FTC has begun to assemble
suitable materials on federal laws that attorneys would need to counsel and represent identity
theft victims.




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   6. Status of Legislation. (If applicable.)
There is no pending legislation associated with the establishment of identity theft pro bono
programs.

7.     Cost to the Association. (Both direct and indirect costs.)

If the ABA were to implement a pro bono program for identity theft victims, the existing Pro
Bono services infrastructure at the ABA would presumably handle this new effort.

8.     Disclosure of Interest. (If applicable.)

The primary author of this resolution is employed at the US Department of Justice as head of the
fraud division, where he has viewed first hand the extent of the damage that can be caused to an
individual by identity theft.

9.     Referrals. (List entities to which the recommendation has been referred, the date of
       referral and the response of each entity if known.)

The recommendation was referred on December 10, 2007 to:
Business Law Section Pro Bono Project
Senior Lawyers Division
Young Lawyers Division
Ethics & Professional Responsibility
Second Season of Service
Standing Committee on Legal Aid to Indigent Defendants

10.    Contact Person. (Prior to the meeting. Please include name, address, telephone number
       and email address.)

Jon Rusch, Criminal Process Committee Co-Chair
c/o ABA Administrative Law Section
740 15th Street NW
Washington, DC 20005
202-514-0631 [Office]
202-355-5712 [Cell]
202-514-7021 [Fax]
Jonathan.Rusch2@usdoj.gov [Email]




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                                                                           102B

11.   Contact Person. (Who will present the report to the House. Please include email address
      and cell phone number.)

Judy Kaleta
Section Delegate
Judy.kaleta@dot.gov
Work phone: 202-493-0992
Cell phone: 703-980-2328

Thomas Susman
Section Delegate
Thomas.susman@ropesgray.com
Cell phone: 202-365-1291




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102B
                                   EXECUTIVE SUMMARY

(a)     Summary of the Recommendation

The resolution urges national, federal, state, and local bar associations, in cooperation with state
and local pro bono, lawyer referral, and legal aid programs, to establish programs for
representation of victims of identity theft who need assistance in recovering from its effects.

(b)     Summary of the issues that the recommendation addresses.

The recommendation addresses the fact that victims of identity theft often suffer significant
financial and non- financial harms, including harm to credit standing and reputation, but lack the
practical and legal knowledge necessary to recover from identity theft, such as dealing with
creditors and law enforcement authorities, correcting business and public records, and otherwise
restoring their reputations.

(c)     How the proposed policy position will address the issue.

The proposed recommendation is intended to encourage bar associations to establish programs
for legal assistance to identity theft victims, who may need help in recovering from the effects of
identity theft.

(d)     Summary of any minority vie ws of opposition which have been identified:

None.




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