Poor Litigants: Charity or Practice?

Chief Judge Jonathan Lippman, to his enduring credit, cares about the reality that New York has far more poor than lawyers for the Legal Aid Society could ever hope to represent.  While his tenure as Chief Judge will be short lived, he plans to leave behind the machinery to make a dent in the gaping hole called “access to justice.”  From the New York Times:

Lawyers who work for big corporations in New York but are not licensed to practice law in the state will be allowed to do pro bono work under a new rule meant to ease an acute shortage of legal representation for the poor, the state’s chief judge, Jonathan Lippman, announced on Monday.

The rule change, which takes effect on Wednesday, is the latest in a series of measures that Judge Lippman has championed in recent years to reduce what he calls “the justice gap.” New York is the fourth state to let out-of-state lawyers working as counsel for corporations offer their services to the poor, without restrictions.

This, of course, comes on top of his requirement that law students seeking admission to the New York bar must perform 50 hours of pro bono service.  So the options for the poor range from law students, with neither competence nor experience, to in-house counsel with neither competence nor experience.

But what is striking about this proposal is that if lawyers who are not admitted to practice law in the state are now permitted to not only practice law, but to do so “without restriction” when it’s for a worthy cause, is there any rationale remaining to prevent the same lawyers from practicing without admission otherwise?  If anything, unadmitted retained practice makes far more sense as the retaining party knows that he’s getting an unadmitted lawyer. The poor don’t have a choice in the matter.

While law students come by their deficits honestly, the situation for in-house counsel is somewhat different. Working within a corporate legal department, and thus subject to being moved about as their employer deems appropriate, they may find themselves in a different jurisdiction than the one in which they were admitted. No big deal for the corporation, as it knows what it’s doing and doesn’t make decisions dependent on local jurisdictional representation.

But the same can’t be said for the poor who may end up with the pro bono services of these lawyers. While the practice of law is, in many respects, the same from state to state, there are also marked local differences that are critical to the success or failure of representation.  From the language of the courts, to filing deadlines, to the nuance of local practice, to state-specific statutes and caselaw, trying to represent people in an unfamiliar jurisdiction with your eyes closed is lunacy.  But that’s not the only problem.

Lawyers working in-house for corporations often lack any litigation experience, civil and almost certainly criminal. Even if they put in some law firm time, chances are they never saw the inside of a courtroom, or if they did, it was while holding the bag of a much more senior lawyer.  And it wouldn’t be the same courtroom as an indigent client, whose needs tend more toward the low-brow practices: landlord-tenant, immigration, divorce and custody.

As for criminal defense, which even experienced civil litigators are unprepared to handle, these lawyers are so far removed from competence as to be walking conviction machines.

The premise behind these well-intended efforts is two-fold, that any lawyer representing the poor pro bono is better than no lawyer, and that in-house counsel, already getting a paycheck from an enterprise that will extend to them the courtesy to engage in charitable works, provide a willing workforce to fill the undeniable gap.

Using these warm bodies, however, raises more problems and questions. While the public may assume lawyers are fungible, lawyers know better. You can’t throw an out-of-state, non-litigation, civil, in-house counsel into criminal court and expect competent counsel. To pretend otherwise is foolish. So the message is that the legal system will provide the pretense of legal representation without the substance, and hope that it works out better than total disaster.

It harks back to the law of effective assistance of counsel, that no one was entitled to perfection, but rather the absolute lowest level of competence we can get away with.  The poor get a lawyer, hooray!  Not one competent to represent them, boo! But it’s better than nothing, hooray! Maybe, boo!

Yet, once unadmitted in-house lawyers are allowed to ply their trade in New York courts “without restriction,” where does it end?  The concession is intended for pro bono, but what of low bono?  What about when cash passes hands under the table? What argument can be made later, when an unadmitted lawyer has done a few trials on the cuff and now wants to spread his wings for friends, for neighbors, for money?

Why was he worthy of representing human beings in New York courts when he wasn’t getting paid but now incompetent to do so for a fee?  To conclude that the unadmitted lawyer is too incompetent to represent people for a fee is to admit that the poor are being given incompetent lawyers. That’s something the court cannot do. This creates a dilemma that will come back to bite the legal system in the butt.

So is this how the state bar admission structure dies?  Many would love to see that happen, permitting lawyers the freedom to practice around the nation at will; from their virtual kiddy law office in the kitchen of their Phoenix condo, they can take fees from New Yorkers who have no recourse when they screw up.

In the meantime, Judge Lippman’s charitable nature, which provides in-house counsel the chance to practice unused, perhaps non-existent, talents on the poor, leaves questions: what becomes of the poor when their cases drag on and the lawyers disappear to handle the work of their real jobs?  Who do they sue for malpractice when their representation turns into a legal morass of screw-ups?  How do the poor get past the guards at the front door when they need to speak with their lawyers?

Most importantly, when the burden of caring for the poor in a society that compels allegiance to a legal system that criminalizes and regulates every tiny aspect of life is slightly relieved by the charitable efforts of lawyers, when does that society come to the realization that if it demands the poor play by its rules, then it is society, not lawyers, who are responsible for funding their legal needs?  While this is at best a stop-gap, born of an immediate need to serve the poor, it doesn’t eliminate the problem of access to justice while legislatures make new laws and regulations increasing the need for legal assistance without funding its mandate.

This isn’t a lawyer problem, and despite whatever charity lawyers are able to provide, the justice gap will never be closed on the backs of lawyers.

11 comments on “Poor Litigants: Charity or Practice?

  1. the other rob

    You wrote “…when does that society come to the realization that if it demands the poor play by its rules, then it is society, not lawyers, who are responsible for funding their legal needs? ”

    That certainly used to be the case in England. Legal Aid would pay for a poor defendant to be represented by a regular Solicitor and, in court, by a regular Barrister and (the important part) these would be the same Solicitors and Barristers that represented clients able to pay their bills themselves.

    I have no idea whether this is still the case. Last I noticed before I left, there were rumblings about “…the out of control costs of Legal Aid”, so things may have changed.

  2. Lars Husebo

    I am a registered in-house counsel newly transplanted from Texas. Both Texas and NY have in rule 1.1 of their professional codes of conduct a version of the ABA model rule. NY’s rule 1.1 states that “(a) A lawyer should provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. (b) A lawyer should not handle a legal matter that the lawyer knows our should know that the lawyer is not competent to handle, without associating with a lawyer who is competent to handle it.”

    So even if an appellate court would find that an in-house counsel provided “effective assistance” by just being present at trial, could that attorney not potentially run afoul of Rule 1.1? Or am I being too optimistic in suggesting rule 1.1 sets a higher standard?

    I know I would never take a pro bono case (or a for fee case) in a legal field which I normally don’t practice without proper supervision from an experienced practitioner!

    1. SHG Post author

      Effective assistance of counsel is an entirely different concept than Rule 1.1. The latter, observed as much in the breach by some, provides an ethical bottom line, while the former provides a legal bottom line for reversal. While IAC should meet the higher bar, it doesn’t. Thank you for recognizing Rule 1.1 and personally adhering to it. Your attitude reflects what one would hope for.

  3. Dan

    A couple of points-

    First, I’m pretty far from a libertarian, free market hands off my money pull yourself up from your bootstraps, ayn rand loving capitalist, but the notion of Judge Lippman, who has drawn a government check for a good part of his adult life, filling the justice gap on the backs of lawyers really, really bothers me. Galls me perhaps. I like Judge Lippman from the little I know of him (I knew one of his recent clerks, good guy), but I can’t help but think he has the bureaucrats mentality that all of us in the private sector are being driven up to the courthouse in a limousine, paid $750 an hour, and then its off to lunch at Peter Lugar’s. Not so.

    Second, you’re either allowed to practice in New York or you’re not. It means something, or it doesn’t. If it means something, then we’re just harming poor people by this measure. If it doesn’t, let’s just end the charade. Not sure I’ve added anything.

    Third, (sarcasm voice on), you’re concern about competence is misplaced. The in-house counsel of Fortune 500 companies are extremely bright and talented individuals, most of whom attended T-14 law schools and were trained by the best wall street firms. Surely if they handle the nuances of anti-trust, securities and patent law on a daily basis, they can handle a dwi or a simple divorce. They’re more talented than the rest of us, and basically just better people.

  4. Dan

    I forgot to do the obligatory hey, with the glut of unemployed recent law graduates these days, can’t they represent poor people, some enterprising young lads willing to take some lower fees? Seems like a great opportunity.

    1. SHG Post author

      I’m pretty sure that’s been thoroughly explored, bunked, debunked and buried. Even (especially) recent grads have to eat (plus pay their student debt). Plus, their skills are not much better than law students.

  5. Mark Draughn

    As it happens, I too am unadmitted to practice law in the State of New York (or any other state), and I too have no litigation experience of either the civil or criminal variety, and the only time I’ve seen the inside of a courtroom is as a juror, spectator, or traffic ticket defendant. In the event that the corporate lawyers prove insufficient to handle the indigent case volume, please inform Judge Lippman of my immediate availability. Since I have cleverly avoided student debt by not attending law school, I have no problem working pro bono, but I will expect to be compensated for travel expenses.

  6. Pingback: The Poor Are For Practice | Simple Justice

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