Access to Justice

David Ettinger fights for fee waivers

Published in 2013 Southern California Super Lawyers magazine

By Nyssa Gesch on January 21, 2013

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When the Los Angeles Superior Court denied Nylonda Sharnese fee waivers for her case, she soon found herself, through a referral by a Public Counsel attorney, in the capable hands of Horvitz & Levy partner David Ettinger.

“Fee waivers are fundamental to access to the courts for poor people,” says Ettinger. “Because if they can’t afford to pay a fee, a filing fee, and if that fee is not waived, then they can’t even start a case.”

The appellate attorney has worked with clients on this issue for years, and in 2008, on behalf of the Harriett Buhai Center for Family Law, he helped draft comments and criticisms as the California fee waiver legislation was rewritten. “We suggested a lot more changes than were actually made, but one change that was made in response to our comments concerned the fee waiver process in family law cases specifically,” Ettinger says. “There are now some safeguards in the legislation, [so there’s less chance that] the opportunity to collect support, court-ordered support will be compromised by the courts trying to get a reimbursement of fees at the end of the case.”

Ettinger says Sharnese’s 2011 case was an opportunity to right not only an individual wrong, but set a precedent at the appellate level for future cases. “Unlike in Ms. Sharnese’s case, a poor person seeking a fee waiver is likely to be without legal representation,” says Ettinger. “If the court improperly denies or revokes a fee waiver, the litigant will often lack either the sophistication or the resources to question the judge’s ruling, recognize the error and seek appellate relief. Many, if not most, such erroneous rulings will evade review.”

In Sharnese’s case, Ettinger eventually was able to file a motion in the trial court asking for a refund of her fees, which she received. But precedent wasn’t established.

Ettinger says of his pro bono work: “It’s giving people who are disadvantaged in the legal system because they don’t have legal counsel more of an equal chance to have their cases heard. Anything that can help equal access to the courts is an important thing.”

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