Ron McGuire: To Be Impoverished By Fighting The Good Fight

The underlying case, Husain v. Springer, received less than universal support. At Volokh Conspiracy, Eugene wasn’t a fan.

What makes this a strange First Amendment case, of course, is that the newspaper wasn’t ordered to stop speaking. Nor was it threatened with loss of funding or any other tangible loss for not speaking. Rather, it was threatened with frustration of its purpose — “if you keep endorsing candidates, we’ll make sure that your endorsed candidates don’t get elected.”

I’m unaware of any First Amendment case that remotely reaches this sort of “chill[ing of] speech”; and such behavior by the government seems quite far from the sort of government actions that the law has recognized as triggering the First Amendment. This alone, it seems to me, should have led to the conclusion that the president enjoyed qualified immunity (something the Second Circuit did not conclude).

FIRE took a more generous view of the First Amendment rights at stake.

Even if Volokh is ultimately correct that President Springer’s actions were immune to First Amendment scrutiny because she did not target the student journalists’ speech itself, the intent—however benign—of an administrator’s policies must be scrupulously balanced against their tangible effects when the subject of regulation is something as delicate, yet consequential, as free speech rights.

And the two-judge majority of the Second Circuit held that the actions of the President of Staten Island College, who canceled the 1997 student elections in response to the college paper’s editorial about them, was undeserving of qualified immunity because it may have violated a clearly established right.

The third judge on the panel, Chief Judge Dennis Jacobs, not only disagreed, but announced in his dissent that the case was so unworthy of the court’s time that he didn’t bother to read the majority decision.

Chief Judge Jacobs wrote a dissent where he noted he did not read the majority opinion, insisted that “[t]his is a case about nothing,” that the case was a “slow-motion tantrum by children,” and that the newspaper in question was “illiterate piffle.”

Judge Jacobs felt the case was about “nothing” because the students had already graduated and were only asking for nominal damages of one dollar each.

Illiterate piffle or not, there was a lawyer who made the decision to take on the cause on behalf of the campus paper, and the First Amendment.  His name is Ron McGuire.  No one has made a Lifetime movie about him or the 19 years he spent, pro bono, representing the students who challenged the president of Staten Island College.  No one calls him a “First Amendment badass,” or offers an homage for his efforts.

The case resolved, in part, by the college using a procedural ploy available under New York State law, agreeing to pay the compensatory damages without conceding fault, and thus circumventing the dispute. Except the damage demand was for $1 per plaintiff, for a grand total of $9.  Under § 1983, the lawyer representing the prevailing plaintiffs would be entitled to attorneys fees.  McGuire took a huge personal chance in taking on the case, as there is never a guarantee of winning, and did so without an assurance he would ever get a dime for his efforts.

But he won. Ron McGuire won. Despite Eugene. And now, 19 years later, his circumstances were somewhat dire.

McGuire, 67, who dedicated his career to representing CUNY students and others pro bono for 25 years, faced serious health issues in recent years, and looked forward to the anticipated fee award to wind down his practice to concentrate on his health and to provide funds for his retirement. Instead, because of Judge Jacobs’ decision, he says he is facing poverty and ruin.

On the one hand, you can say, “hey, you rolled the dice and lost. Too bad for you.” But he didn’t lose. And what makes this a bad thing for the rest of us?

It was a stern warning to any lawyer who considers defending the rights of students on a pro bono basis: Take their case and you’ll get the equivalent of poverty wages.

It also gave autocratic administrators, like those at the City University of New York, a huge incentive to deny students their constitutional rights. Why not? No one competent will represent them in court if that lawyer will get stiffed on fees.

In making a decision to take on a case, to pursue the vindication of a constitutional right, the best an attorney can do is to determine that he believes sufficiently in the efficacy of the case that there will be a reasonable expectation of a fee award at the end.  Hard as it may be for people to imagine, not every attorney is filthy rich, such that he can dedicate 19 years of his life to a cause of some societal importance, and not every case will make an attorney rich, as appears to be the religious belief of every commenter at reddit.

Ron McGuire got into the case to do the right thing.  He did not get into it to become personally impoverished so that society could benefit from his efforts.  He took a chance, based upon his estimate of the validity of the cause, and he was proven right. Yet, he still got screwed.

The Queens Free Press reports that the 2nd Circuit’s paltry $38,000 award to Ron McGuire – for 19 years of uncompensated work that he estimated at $750,000 – threatens to make him a sickly indigent.

While the $750,000 fee request might strike the unwary as a big number, amortized over 19 years it amounts to just under $40,000 per year.  And from that, it returns to McGuire the expense accumulated and paid out of pocket for all the stuff that is needed to maintain a law practice, a law suit.  It’s not an unhealthy return, but it’s hardly an outrageous return. Instead, he gets $2000 per year, almost enough to pay for lunch.

The problem, of course, is that there may be no lawyer willing to champion a right at risk when the outcome, even should he win, may be impoverishment. When you reach out for a pro bono lawyer to take on your constitutional rights, no matter how important you think they may be, consider what Ron McGuire will use to pay for his medical care in his old age.

And that is why no lawyer is champing at the bit to take on the risk of fighting your battle, so many critical causes can find no champion.  It’s not that your complaint lacks merit, even if Eugene disagrees or Judge Jacobs dismisses it as a case about “nothing,” but what lawyer wants to find himself indigent and forgotten decades later?

14 thoughts on “Ron McGuire: To Be Impoverished By Fighting The Good Fight

  1. dm

    My 1L crim. law professor stated on the first day of class, always get your fee up front. i thought he was horribly cynical. A few years of practice, and a few ungrateful pro bono clients later, I too became cynical.
    Props for the dogged pursuit of the case, but the paltry attorney fees awarded given the number of years the case took and the “successful” result should be taught in law schools.
    Cue Dorriss to complain about all us rich lawyers feasting on caviar and champagne . . . .

    1. SHG Post author

      I really don’t know what to make of the fact that no one, until you, commented on this post. Is this okay with people? Where are all the zealous advocates and know-it-alls who have nothing to say about a guy who put 19 years into a civil rights case and came out essentially empty. I wanted to give him the props he earned. I thank you for doing so too. But other than us, silence?

      This makes me deeply concerned.

      1. Patrick Maupin

        It’s a terrible thing, and the judge should be ashamed of himself, and any higher court should be able to see the inherent conflict of interest, and even if he’s given what he’s asking, the lawyer was working damn cheaply to begin with.

        But…

        You pretty well covered all that in your post, and given your normal dislike for “me, too!” posts that don’t add anything, it’s not surprising you get very few posts when you thoroughly cover something that your usual audience finds uncontentious.

      2. Kathleen Casey

        I wondered too. I see the judge declined a motion to recuse himself which by its nature is an appeal to conscience. Yet he admitted bias in his dissent. He appears not to have mental discipline. Out of control.

  2. John Barleycorn

    And you would think a judge who taught english* would appreciate reading the majority opinions on cases where he was the lone dissenter?

    Dennis Jacobs actions in this matter as the lone dissenter and later as the lead judge on the panel that weighed the “value” of Ron McGuire efforts stand him uniquely beyond the pale in this dreadfuly grotesque affair.

    His attitude and actions in this matter will undoubtedly have a deleterious effect on the future.

    The next time you visit the dentist Dennis please do bring along a copy of your, The Secret Life of Judges and have the dental assistant read back to you the parts that aren’t covered in your own blood stained  phlegm as the dentist drills one of your molars, for a root canal, at our great nation’s expense.

    * The one who does not read, Dennis, taught English at Queens College and at the Nassau County Police Science Academy.

  3. losingtrader

    “not every attorney is filthy rich, such that he can dedicate [XX] years of his life to a cause of some societal importance”

    I’m wondering if your Armani suits are dry-cleaned to precision, or you just stick with filthy.

  4. Richard G. Kopf

    SHG,

    Three points.

    First, I think Judge Gershon’s 2013 opinion was about right. In a carefully reasoned opinion, she awarded $204,848.00 in attorney’s fees, $11,680.00 in paralegal compensation and $16,711.20 in costs, for a total of $233,239.20. You can read her well reasoned opinion using Google Scholar. Put in Husain v. Springer, Dist. Court, ED New York 2013.

    Second, awarding attorney fees in a “limited success” civil rights case is hard given the precedents of the Supreme Court and the Courts of Appeal. In other words, a pro bono civil rights lawyer takes a huge risk when taking on such cases in federal court, and that is particularly true even when the lawyer wins relief, albeit relief that is limited. Thus, excluding the unwarranted and nasty snark from Jacobs, the case you highlight is not particularly unusual in terms of the result.

    Third, a war story: the first case I tried as a district judge was a month long civil rights trial to the bench involving the sole prison for women in Nebraska and the question of whether the women had been denied equal protection of the laws because the women did not receive the same or similar programming as that received by men in the various prisons that held males. My present Chief Judge, Laurie Smith Camp, defended Nebraska at that time. Her opposing counsel, representing the women prisoners at the request of the court, was Gail Perry.

    Both were and are great lawyers and great people. I came down in favor of Gail. Laurie appealed and won a complete reversal, over a dissent and despite my 200 page opinion. No fees or expenses for Gail.*

    Sometime thereafter Laurie nominated Gail for an award from the Nebraska Bar Association for Gail’s pro bono work. Gail received the award and state-wide acclaim from her peers. Laurie’s recognition of Gail’s service to the interests of justice, despite the fact that the two lawyers were vigorous opponents, strikes me as a truly wonderful celebration of what is good and right about our profession. It is a damn shame that such mutual respect is becoming an anachronism in our profession. Judge Jacobs could have learned a lot from Judge Smith Camp.

    Although it truly saddens me, thanks for highlighting this matter. All the best.

    RGK

    *On a separate access to the courts claim, Gail did receive a relatively small award.

    1. SHG Post author

      But, as discussed in another context, Judge Gershon is an “inferior” judge to Judge Jacobs. And so her award falls, and McGuire, with his “limited success,” starves. After all, there is no reason to concern ourselves with those who do pro bono to defend our constitutional rights for 19 years. McGuire took a risk and won, but lost. Maybe an pro bono award will be just as good. He can trade it for some medical treatment and cat food.

      1. Richard G. Kopf

        SHG,

        Once again my words come back to bite me in the ass! Fuck it. I quit. After further reflection, I’m back. Just don’t expect consistency from me you prick. All the best.

        RGK

  5. Anonymous

    I am an attorney who has been before Jacobs more than once, and there is no nastier, more vicious and unprofessional right-wing prick on the Second Circuit. What happened to McGuire is a tragedy, but then, according to Jacobs, only rich grownups have civil rights, so it’s his own fault.

    1. SHG Post author

      It’s rare that I fully understand why someone needs to go anon. You, I understand. He would make you pay dearly for your insolence.

      1. Anonymous

        Thank you for your understanding, Mr. Greenfield. I wish that I could tell you about the cases, but that would blow my cover. I appreciate your publishing this story about McGuire.
        There are other examples of Jacobs trashing lawyers in public speeches. IIRC, there was one involving the ACLU.
        I only do civil litigation, and I am in awe of good crimimal defense lawyers, given how much worse their odds of success are than mine.

Comments are closed.