We live in a time of unprecedented changes for American lawyers,
probably the greatest changes since the Great Depression. That period saw
the creation of the lawyer’s monopoly through a series of regulatory
modifications. Will we see the same following the Great Recession?
Formally, no. This Article predicts that formal lawyer regulation in 2023
will look remarkably similar to lawyer regulation in 2013. This is because
lawyer regulators will not want to rock the boat in the profession or in law
schools during a time of roil.
Informally, yes! We are already seeing a combination of
computerization, outsourcing, and nonlawyer practice radically reshape the
market for law from one that centers on individualized, hourly work done
for clients to a market of much cheaper, commoditized legal products. This
trend will accelerate over time. The upshot? Formal lawyer regulation
will continue on with little change, but will cover an ever-shrinking
proportion of the market for legal services.
Benjamin H. Barton, The Lawyer’s Monopoly—What Goes and What Stays, 82 Fordham L. Rev. 3067 (May 2014).
Professor Barton might be correct, but this post is not intended to spark a discussion about the shrinking legal market for lawyers–at least not directly. Rather, I want to talk about one of the consequences of that shrinkage. That is, an essentially unregulated market of “paralegals” who may be offering legal services to federal prisoners and harming those prisoners in the process.
28 U.S. Code § 2255 provides a method for a prisoner in federal custody to attack his or her criminal conviction or sentence in federal court. It is the federal equivalent of the Great Writ. While seldom successful, a section 2255 action stands as the last chance for a federal prisoner to upend a wrongful conviction or sentence. I attach such significance to those motions (they are called “motions” rather than petitions for habeas corpus) that I do them myself and without hardly any assistance from a law clerk. I do this because I was the one who presided over the case, and imposed the sentence, because it is efficient for me to do the original research and writing because I have intimate knowledge of the matter, and because I truly see these motions as very important, even though, as I have said, they are seldom successful. Note that unless the federal prisoner is entitled to an evidentiary hearing, or other special circumstances exist, he or she not entitled to the appointment of counsel. However, there is a form that is available from the Administrative Office of the United States Courts, and the various clerks of court, that serves as clear and concise guide to the prisoner.
This week, I received information from a good friend of this blog, Elaine Mittleman. She also knows a thing or two about section 2255. See, for example, Elaine Mittleman, Making a record of plea offers as a response to Frye and Lafler, a thoughtful guest post, Hercules and the umpire (June 1, 2013). See my response entitled: An order of Frye. In any event, last week, Elaine sent me a copy of a document that she received. It is that document that concerns me and it is that document that prompted this post.
The document represents that the author is a “paralegal.” It pertains to a Supreme Court case and § 2255 motions.* Quoting another source (a “law clerk” at a Federal Correctional Institution no less), the document discusses the time for filing a section 2255 motion under the Supreme Court case and whether the decision is “retroactive.” Quoting the law clerk, the document ends with this advice: “The courts are crafty and find all sort of ways to deny proper claims. [F]or this reason, please get yourself experienced help to file your [case name] argument.” (Emphasis added by Kopf.) The document footer then adds the “paralegal’s” name, address, telephone number, fax number, e-mail address and web site. Additionally, it lists the hours when “inmate calls [are] accepted” and when “Spanish speaking calls” will be accepted.
As to the substance of the advice contained in this apparent solicitation, I am dubious. It suggests a deadline for filing, and that deadline may be just flat wrong. It also goes into a discussion of “retroactivity” and that discussion seems to me to miss a very important point.
If, as I suspect, that communications like this one are intended to induce inmates to hire “paralegals” to prosecute section 2255 motions, I am concerned that federal prisoners are being fleeced. For those lawyers who have a federal criminal practice or who do federal post-conviction work I pass along this information for whatever value you care to give to it. Whether you believe legal services should be expanded or not through deregulation, surely we can all agree that federal prisoners deserve protection from incompetents who seek to profit from their misfortune.**
*I have the communication but I will not reproduce it, describe the Supreme Court case which apparently prompted the communication, or elaborate upon the specific legal issues involved. I don’t want to assist the “paralegal” in ginning up work, particularly when the document is based upon advice that may be inaccurate or misleading or incomplete.
**To be specific, Federal Public Defenders, CJA counsel, retained counsel, and post-conviction practitioners would do well to warn prisoners about paying money to “paralegals” regarding the preparation of a section 2255 motions.