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.