Universal health care has been bandied for a long time as a cure for the plague of rising health care costs and the inability of the middleclass and poor to afford and obtain proper health care.  We have given a great deal of thought as to how this will impact doctors, their livelihood and the willingness of young men and women to assume the rigors of a medical education and career.

But what about us lawyers?  Kathryn Madigan, president of the New York State Bar Association,  has announced its support for the basic right to counsel in civil cases.

“If you are a poor person facing a fundamental forfeiture like the loss of health care or the loss of a home, there is no guaranteed right [to counsel],” she said. “It is a similar forfeiture to the loss of liberty when you lose your health and home and your safety. These are really basic human needs.”

She has a very good point, and one that all private counsel know all too well, whether they want to admit it or not.  As society has increasingly looked to the law to resolve its problems, and made every facet of life increasingly complex from a legal standpoint, the need for legal advice and representation to navigate life has increased significantly. 

Let’s face facts, one can’t deal with a broken vacuum cleaner without understanding the warranty terms, maintenance requirements, terms of sale, etc.  The cute TV commercials about how every company loves you may draw you in, but when you have a problem (as happens to all of us on a regular basis), you need a lawyer.  On a more significant scale, how many subprime borrowers now in default say that they had no lawyer when they closed a deal that any competent lawyer would have told them was insane.

Having created a need for lawyers, society now has a problem filling that need.  No, the problem isn’t the number of lawyers.  We’ve got far more than enough.  What we don’t have is a source of advice or representation that normal people can afford. 

Most people don’t have $25-50,000 lying around the château just in case a lawsuit erupts.  They can scream at each other on the phone, but the truth is that they can’t do anything to vindicate their rights when the person on the other side of the call says, “tough noogies, sue me!”  Sure, contingent fees work for personal injury, but they have no applicability to the vast array of non-PI cases, and certainly not to low-damages or (worse yet) equitable relief.

So we’ve constructed this fine-tuned legal machine, but at the cost of admission that leaves only the wealthy few able to enjoy it.  We’ve made it clear that the legal system, not self-help, not open-warfare, not vigilantism, is the way to redress our grievances, and then slammed the door shut in the face of ordinary people. 

The cost of legal fees would destroy the lives of many middleclass Americans.  They are shocked to find out what a lawyer’s time and advice will do to them.  They still have homes, cars and kids to feed, and are ill-equipped to give it all away to finance a lawyer.  Add the variable to the mix, that there is no guarantee that they will get what they want out of it at the end and thus may squander their family’s survival for a chance to roll the dice, and we have a failed system.

The other day,  Norm Pattis was on a rant about how we should extend the right to counsel in criminal cases beyond the indigent and just give everybody a free criminal defense.  Crazy talk for sure.  He was miffed because some lying lawyer stole a case by suggesting that he could win the unwinnable case, and the client went along because he wanted to know that his money was well spent.  Some clients just want to believe, no matter how ridiculous the claim.

I doubt that Norm was seriously suggesting that criminal representation be free for all under our existing paradigm, since that would present an awful problem for taxpayer and lawyer alike.  But the underlying point, that even a solidly middleclass defendant will find the cost of a criminal defense to be overwhelming and perhaps out of reach.  While he could do it if he refinances his home, sells his car, cancels cable, cellphone and wifi, this is a lot to expect of a person who didn’t ask to be in this position and receives no legitimate assurance that these sacrifices will suffice.  Worse yet, if he loses or pleads, he’s out of luck all around.  And if he wins, it’s not like he gets his money back. 

Criminal defense lawyers hear the recurring question from people who don’t qualify for free representation: “But why should I pay if I’m innocent?”  The facile answer is to keep from going to prison if you’re innocent.  This response, of course, is offensive to the person who did nothing wrong, but is still expected to watch his life destroyed by a system endorsed by people who reap the benefits of legal fees. 

It’s a problem for the vast majority of Americans.  Lawyers and legislators have made it a problem.  As we continually rely on the legal system as the answer to all problems, we leave too many people without access to the courthouse.  One day, they are going to figure this out and they are not going to be happy with lawyers.