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.

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