If you can’t afford civil justice, you don’t deserve it*

download (4)As you know, I am quite like my hero Scrooge before his unfortunate brain washing. This post is another example.

Yesterday, in the New York Times, I came across an Op-Ed written by Theresa Amato, entitled, Put Lawyers Where They’re Needed. The article is well-intended but it is hopelessly naive and, still further, wrong as a policy matter. Greatly condensed and summarized, the thrust of the opinion piece is this: The poor need lawyers for civil matters and we must find the money both privately and publicly so (1) the poverty-stricken can have legal representation in civil disputes and (2) the large number of unemployed lawyers can get jobs. This Op-ed is, frankly, stupid. Briefly, here is why:

First, why in the world should anyone fork over money to employ unemployed lawyers for other people’s civil cases. While I feel more than a little empathy for kids who can’t get legal jobs and face a mountain of debt, that is their problem and not our problem. They are mostly young and dumb and must face the consequences of their own actions. Ms. Amato might as well suggest that we ought to pay the hordes of unemployed PhDs ’cause, goodness knows, they have worked so hard and face so much debt. How about the poor bastard who used to work in the manufacturing plant and got permanently laid off when the company failed during the great recession, shouldn’t we pay him or her as well ’cause he or she has worked so hard and faces a mountain of debt?

Second, there is no public or private appetite for creating what is essentially a right to legal representation in civil matters. For Christ’s sake, Obama care passed with only one vote–and health insurance is a life and death matter. Amato, unintentionally I am sure, acknowledged this truth in her article when she wrote: “The Legal Services Corporation is the closest thing we have to a corps of lawyers for low-income litigants. Yet Congress has consistently underfunded it. For 2015, the corporation received less than $400 million — adjusted for inflation, roughly half its funding in the early ’80s.” Writing a piece about paying unemployed lawyers, out of other people’s public or private pockets, that is published in the Grey Lady is good for Ms. Amato, but it is otherwise good for nothing else. I don’t intend to be nasty, but Ms. Amato’s essay is nothing more than an exercise in mental masturbation by an elite.

Third, much of what “low-income litigants” need could be satisfied by people other than lawyers like paralegals or legal assistants (formerly legal secretaries).** If Ms. Amato was pushing for a relaxation of the “unauthorized practice of law rules,” so that paralegals or legal assistants could attend to the needs of poor “civil litigants,” that would make far more sense. The market economy is more likely to respond positively if paralegals and legal assistants were authorized to charge “low fees” to handle uncomplicated legal matters like a simple divorce or a landlord-tenant dispute or a simple will. (Think H&R Block®.) What Ms. Amato does not admit is that many of the civil problems most folks face, including the poor, do not require the services of a lawyer.

Finally, and most importantly, if the money is there, I am all in for spending it on the defense of the poor in criminal cases. In all cases where a defendant faces a prison sentence, a lawyer is required under the Constitution. Yet in many jurisdictions the criminal defense system is a joke. See, e.g., Rationing Justice: The Underfunding of Assigned Counsel Systems, National Association of Criminal Defense Lawyers (NACDL) (PDF will be generated) (click on “Read the Report” under Part 1) (last accessed June 17, 2015) (“Over the last decade states would have needed to raise assigned counsel rates by 25 percent just to have kept pace with the increased costs of living.”); Five Problems Facing Public Defense on the 40th Anniversary of Gideon v. Wainwright, National Legal Aid & Defender Association (NLADA) (“Inadequate funding leads to attorneys who do not have appropriate access to training, legal research, investigators, experts or scientific testing.  Most Americans support balanced funding for prosecution and public defense, and national standards require it; but governments commonly spend three times as much on prosecution as on public defense.”) (last accessed, June 17, 2015) (emphasis in original). It would be a truly harmful folly to divert funds that should go to the indigent criminal defense systems so that young activists may stir up more civil litigation.

In summary, I have been hard on Ms. Amato and that has been intentional. That said, from what I can tell from her background she is an excellent lawyer and a good person. She deserves praise for what she has done for the poor. Nonetheless, we should remember that the road to hell is paved with good intentions. Ms. Amato’s proposal is one of those hellish roads even if it was published in the New York Times.

RGK

* I am only joking, sorta.

**Of course, serious and vigorous regulations of non-lawyers would be required, but that should not be too tough to accomplish.

16 responses

  1. “If Ms. Amato was pushing for a relaxation of the ‘unauthorized practice of law rules,’ so that paralegals or legal assistants could attend to the needs of poor ‘civil litigants,’ that would make far more sense”

    How about allowing small business owners to represent themselves for a start? There is no statutory basis to deny them that right. And more recently, Citizens United says that corporations have the right to free political speech. Yet I’m not allowed to sue over the constitutionality of a law as the non-attorney CEO of Think Computer Corporation–even though I’m perfectly capable of drafting a complaint and filing motions, i.e. speaking in a courtroom–when Think is an S Corporation *for which I pay the taxes on my personal 1040 because its tax liability passes through to the individual*.

    Talk about taxation without representation; it’s insulting! And the only “rationale” I’ve heard against the argument is that an Iowa state appellate court wasn’t sure what to think about it (http://www.plainsite.org/dockets/download.html?id=208602421&z=b159413f). Of course, Iowa’s state appellate courts have long overruled the United States Supreme Court. What was I thinking?

    I tend to agree that the LSC route is pointless. Technology companies are not always the solution to every problem as Evgeny Morozov has correctly pointed out, but this *is* a problem where technology can and should make a drastic difference. Kill the unauthorized practice laws before they kill the entire legal profession. Or don’t, and let LegalZoom and its brethren kill them for you.

  2. Judge, you reveal yourself to be a running dog of the capitalist system.*

    Do the poor need legal representation? Yes. Let me tell you about a current client of mine, who happens to be a lawyer involved in supervising students who provide just such representation as part of a legal-aid program. One of her students dealt with a case in which the program’s client–previously pro se–had signed an agreement for judgment. When the student was before him, seeking to delay issuance of an execution, the judge said that his hands were tied by the agreement, but suggested that he would go along with a delay if the landlord’s attorney would agree. The landlord’s attorney refused, so that the program’s client was faced with being evicted (along with her small children) over a debt of less than $100. This was in liberal Massachusetts, by the way.

    A system of “justice” that provides such results is really a system of injustice. And, yes, I know that landlords need to collect rent to keep up their properties. People like the tenant become embroiled in the legal system, and those on the other side (whether the state or private parties) have lawyers. They know how to work the system, and they do it to a fare-thee-well, often ignoring or running roughshod over the poor, legally ignorant people on the other side. The imbalance is plain, and it occurs many times, every day. Yes, we have a capitalist (sort of) system in which inequality of resources is inherent. But should some people be denied effective access to the system that makes and enforces society’s rules, because they lack resources? I say no.

    Ms. Amato’s article was much kinder than I would have been. The truth is, those who have money and power in our society use both to keep down those who do not. Years ago, so-called conservatives in Congress precluded the Legal Services Corporation from suing to overturn government regulations or, I believe, to challenge the constitutionality of statutes. And so it is left to private organizations, like the ACLU, to speak truth to power. That is not a just system.

    I doubt that Ms. Amato believes with any seriousness that today’s Congress, or the legislatures of many states, will give credence to the idea that civil justice for the poor (and even the middle class) should be given adequate resources. But she expresses a hope, and if she and others express than hope often enough, and fight for it, some day it may become a reality.

    As for criminal defense for the indigent, we know that it is woefully under-funded in virtually every jurisdiction. And, yes, that is a greater stain on our “justice” system than the failure to provide representation in civil matters. But that one injustice is greater does not mean the the lesser thereby becomes just.

    * I am only joking, sorta.

  3. Jon,

    Comrade, you are right, I confess.

    To the Гла́вное управле́ние исправи́тельно-трудовы́х лагере́й и коло́ний (Glavnoye upravleniye ispravityelno-trudovykh lagerey i koloniy) (Gulag), I must go. Put please spare my dear wife.

    I beg you not to send her to Camps for “wives of traitors of Motherland”–she is not a “Traitor of Motherland Family Member” (ЧСИР, член семьи изменника Родины: ChSIR, Chlyen sem’i izmennika Rodini).

    She has always believed in free shit for everyone.

    All the best.

    RGK

  4. For crying out loud, I spent all my time looking for the first asterisk. No energy left for a comment.

  5. The rationale behind not permitting non-attorney business owners from representing the business is the same as the prohibition against any non-attorney representing another individual or entity. An S corporation may pass its tax liability through to the individual owner, but it still has an independent legal entity status from the individual, and I presume limits your personal liability if the corporation gets sued. You can absolutely represent yourself in court; however, you are not the same legal entity as your S corporation.

    Citizens United did recognize a free speech right for corporations as legal entities. It didn’t say anything about blurring the line between the corporation as an entity and the owners of the corporation as individuals (though Burwell v. Hobby Lobby may have confused that issue a bit.) Interestingly, at least in my state, ‘unauthorized practice of law’ restrictions aren’t solely creations of statute through the legislature, but also Supreme Court rules under the judiciary’s traditional right to regulate itself and who can appear before it.

  6. My dear Judge Kopf, how little you understand, while at the same time being such a large part of the problem. I appreciate the post and the candor. So very revealing.

    First off, by definition, people deserve justice.

    Now. That said, I might even share some of your scorn for the NYT op-ed. But the problem she is identifying is very real (we are in fact keeping company with Uzbekistan when it comes to justice) and very serious and it deserves a lot more thought than you are giving it, if it could even be said with a straight face that you are giving it any thought at all.

    Your communist style re-education (just kidding, I’m no commie) can begin here:

    https://strikelawyer.wordpress.com/2014/08/21/the-unserious-approach-to-ferguson-and-a-serious-solution/

    Civil litigation addressing private wrongs is the antithesis of the collectivist, communist approach to “social justice”, a term I am properly using here but which in the main is wildly distorted in popular terms. The key actors in civil litigation, from a “policy” perspective if you like, are lawyers and judges.

    Examination of conscience time. In your career of judging, haven’t you sought – and usually found – any excuse to throw out a case where a Plaintiff was a relatively powerless individual and the Defendant (real defendant, not the named one) a bank, insurance company, government, institutional litigant? But when the shoe was on the other foot, haven’t you found any excuse to guide a Plaintiff’s case to a successful conclusion, no matter how many problems it had?

    Ever throw out a criminal case brought by the government? Even if you have, what is the ratio of the percentage of times you have done that to the percentage of times you have thrown out a section 1983 case brought by an individual? (I’ll hazard a guess: > 50:1 the other way) Can you begin to glimpse just how much you, and judges like you, have been part of the problem?

    Litigation where the little guy takes on the big guy on as equal a footing as we can manage is, in fact, the bedrock of a just society, and you have spent a career undermining that. Granted, you’ve been a small part of a much larger problem and you’ve been trained and conditioned to see the situation exactly the wrong way, so I’m not really talking about subjective guilt here, but still.

    You might read this, too:

    https://strikelawyer.wordpress.com/2012/12/05/lawyer-hating/

    The optimal solution to Wall Street corruption is an army of lawyers representing little people, justly making their living by righting wrongs and collecting their booty from the wrongdoers. The optimal solution to government corruption is probably the same thing. And the point is, we have an army of lawyers to do just that, and the only reason it can’t work is because the judiciary grossly favors institutional litigants over little people and pulls out all the stops to keep litigation like that away from juries.

    I guess I’ve made this point too many times. Last link:

    https://strikelawyer.wordpress.com/2014/10/12/fraud-is-as-fraud-does/

    I don’t mean to be overly critical, judge. But the yoke of a biased judiciary is a heavy one for a lawyer to bear.

  7. But non-attorney CEOs can represent the business in a host of other contexts. In a case of a sole-owned S-corp, there is absolutely no limit on the owner/CEO’s authority to direct the company as the owner/CEO sees fit.

    In such a case, I think that while the S-corp is an independent entity, because its entire fate is tied up in a single person, that person should be able to represent it even if not an attorney.

    Unlike hiring your non-lawyer buddy to represent you, the owner/CEO is playing only with his own fate. There is no potential for scam artistry or fraudulent representation. And the consequence of any incompetence falls squarely on the person who is incompetent.

  8. That might make sense if we limit the ability of the principal to appear for the corporation to those companies that have only a single shareholder and no employees. Otherwise, the non-admitted CEO who represents the company IS representing more than his own interests.

    I’d note, too, that if this is a serious problem, you’re always free to operate in a non-corporate form (the failure to note that owners who want to make the business personal should not seek the benefits of incorporation was one of the major fallacies in the majority’s decision in Hobby Lobby, a case that had nothing proper to do with religion, but should have been decided on corporate-law principles).

  9. I think running dog was Maoist so that your comment should have been in Chinese. In any event the appropriate remedy is a reeducation camp for right wing old farts. Though we old Lefties would like to waive our little red books at you.

  10. repenting lawyer,

    Of course, you are right about the Chi-Coms. Once again, I confess, but ask Brother Mao to spare my dear wife. Although she may not still be fertile, she is innocent and makes great slippery noodles.

    All the best.

    RGK

  11. The United States currently pays around $20 billion per year to farmers in direct subsidies as “farm income stabilization” The poor won’t need lawyers, they will die young from diabetes.

  12. And neglected to note that is the farm subsidy, the sugar portion is a mere multi million portion. And of course let’s pick on the poor guy who wants a lawyer. That could hurt the poor fossil fuel industry.In the United States, credible estimates of annual fossil fuel subsidies range from $10 billion to $52 billion annually yet these don’t even include costs borne by taxpayers related to the climate, local environmental, and health impacts of the fossil fuel industry. As of July 2014, Oil Change International estimates U.S. fossil fuel subsidies at $37.5 billion annually, including $21 billion in production and exploration subsidies.

%d bloggers like this: