Sunday, September 26, 2010

Moving To A New A Site

Rumors of my death, as Mark Twain once said, are greatly exaggerated. I've just been attending to other things. While I've fiddled, plenty of folks have been burned by a legal system that deprives too many folks of effective representation of counsel.

I've also decided to move to a new web host. You can find me at: I will no longer have a separate page for Lawyers For All, but have moved all of this content to that page. It is listed under the topic labelled "Lawyers For All."

I hope to see you on the new page.

Wednesday, March 10, 2010

Times Editorial: Equal Justice For All

New York Times is inching its way to the correct conclusion. In an editorial yesterday, the paper praised efforts by the Justice Department to assure that indigent lawyers have adequate counsel when facing criminal charges. The paper also noted a less remarked upon problem: the extent to which indigent folks lack counsel in the civil justice system.

I am encouraged to see the Times take aim at the problem of access to the courts and to counsel. But I urge the Times to think more broadly. Certainly adequate funding of counsel for the indigent is a top priority, but just over the horizon is an issue as significant: the crushing burden of legal fees on the middle class. Few families can put together the funds necessary to finance a vigorous defense against serious charges.

There is no talk about the economy's recovery among lawyers serving the middle class and indigent. Our potential clients are scraping the bottom of barrels that used to be filled with rain. The real estate market has collapsed, taking with it the equity loan than many folks used to pay for counsel. There is no easy credit out there. Folks are tapped out and finding it impossible to pay legal fees.

What's needed is wholesale reform of the market in legal services. Every American should have the right to appointed counsel when accused of a crime. If that yields increased costs for the criminal justice system, so be it. Lawmakers might well then be forced to consider trimming waste at the margins. It's too easy to pass laws and criminalize conduct without counting the costs.

I reprint without permission the Times's editorial below.


An Advocate for Equal Justice

Providing poor defendants effective appointed counsel is more than a constitutional obligation. It is a concrete measure of the nation’s commitment to equal justice under law. Yet indigent defense offices across the nation have been allowed to sink into crisis. They have fallen victim to insufficient financing, overwhelming caseloads and a slew of policies that hamper effective representation.

The civil legal aid system is no less challenged. Short on resources, local offices supported by the Legal Services Corporation, the federal agency that provides legal assistance for low-income Americans in civil cases, must turn away about half the eligible individuals who contact them for help with life-altering issues such as child custody or saving their homes from foreclosure.

One rare piece of good news is that Attorney General Eric Holder Jr. has made it his mission to try to narrow this gap in the administration of justice. To lead his campaign, he has hired Laurence Tribe, the prominent Harvard Law School professor and constitutional scholar.

The basic, sound idea is to look at ways indigent legal services can be improved, including by creating incentives for states to make better use of pro bono legal assistance, and help the growing number of people who represent themselves navigate the courts.

Realistically, Mr. Tribe cannot be expected to solve all the financial and other problems impeding the delivery of indigent legal services. But in applying his formidable teaching and advocacy skills, he can be a catalyst for bolstering stressed criminal and civil legal service providers and finding fresh strategies for serving more Americans with their urgent legal needs.

Sunday, March 7, 2010

A Unit Cost Theory Of Prosecution

Robert Wilson was charged with conspiring to commit mail fraud and aiding and abetting another to make false statements on a tax return. When he was arrested, he claimed he was broke. A public defender was appointed, and, after a six-week trial, Wilson was acquitted. Only it turns out that Wilson wasn't so broke after all. As a result, the trial court ordered that he repay the government some $52,000 for the cost of his defense.

The unit cost of defending against allegations of criminal misconduct are typically hard to calculate. Private counsel don't submit bills for public review. Institutional public defenders don't submit affidavits for payments on their cases as the cost of their services are sunk costs: paid regardless of who they represent and whether they go to trial. I am unaware of any systematic review of vouchers for payment submitted by counsel appointed under the Criminal Justice Act.

In the Wilson case, the court determined that the defendant was one of the world's foremost experts on antique weapons, and that, as such, he has a great earning capacity. It ordered him to repay the Public Defenders the costs of his own defense.

Most members of the middle class would be wiped out by a $52,000 legal bill. Like Wilson, they will not have the funds ready at hand and will have to pay them over time. A client convicted of a felony typically loses the ability to make payments on time. Hence, the practice in criminal defense of getting payments up front. I can't pay my staff and expenses with promises.

I am no fan of the American Rule, especially in the context of a criminal defense. When the government charges a person with a crime, the work of police officers, prosecutors, experts and investigators are all born by taxpayers. The full weight of the government, with its almost magical ability to finance just about anything by means of taxation, is brought to bear on an individual. Who can match the government's spending and resources in defending a crime? Almost no one.

The Wilson decision does not recite the underlying facts of the case prosecuted. But if the government is going to spend limited resources prosecuting a non-violent crime, the government should also be required to bear the cost of defense. In an era of overcriminalization we are all criminals from time to time. The only way to reign in an aggressive government is to require it to bear the costs of the fights it picks. The government should be required to calculate the unit cost of each prosecution: What does it cost to bring an action? And I am speaking here of both the prosecution and defense. Perhaps if Congress were required to count the cost of all the new laws it passes year by year we'd have a little less prosecution of marginal conduct.

At the very least, when the government loses at a criminal trial, it ought to be required to reimburse the defendant for the cost of defense. Otherwise, we make a mockery of the presumption of innocence. We tell folks that they are innocent unless proven guilty and then send them to the poorhouse to vindicate these rights. Is this what is meant when folks talk about the process being the punishment?

Hat Tip: Crime and Federalism:

Sunday, February 28, 2010

Justice? Take It Away From The DOJ!

I want to applaud the initiative undertaken by the Department of Justice, but I can't. The agency prosecutes people accused of crime. That's its role. There is no comparable agency devoted to the defense of those accused of a crime.

But now the department is about to launch a program to assist low-income people receive legal help. At some level, this smacks of paternalism: Does the department really care about justice, or does it just want to make sure that the convictions it obtains are bulletproof?

Laurence Tribe of Harvard will soon be hanging his hat at Justice. He'll head a new program called Access to Justice. In fact, he starts work on March 1.

Im not sure what Professor Tribe's brief will be. The New York Times reported as follows: "He will coordinate with judges and lawyers across the country with the goal of finding ways to help people who cannot afford a lawyer — a circumstance known in legal terms as indigent defense."

I think we need more than a high-octane cheerleader to make sure that all Americans have an adequate defense when accused of a crime. Professor Tribe can use all the moral suasion he possesses, but what's needed are dollars and a commitment of resources. The Government gets a Department of Justice, the Federal Bureaue of Investigation and the coordinate efforts of hundreds of local, state and federal law enforcement agencies. The defendant gets exhortation?

A real Department of Justice would be overseen by an administration given oversight of both prosecution and defense. At the head of the agency would be the executive director; below him would be a prosecution and defense division. The same agency that funds prosecution would be required to fund the defense, thus assuring the overcriminalization was checked by something like a unit cost of criminal prosecution. Each prosecution could be audited and a fiscal impact statement be done: Were the two sides provided equal resources? What did it cost to prosecute and defend the case? Lawmakers could review such data and decide whether the people are getting their money's worth in the criminal courts.

And every American would be guaranteed a right to a defense when the Government charges a crime. It simply makes no sense to impoverish the middle class when the Government charges a crime. The presumption of innocence is supposed to mean more than bankruptcy for those seeking the service of a lawyer, investigators, experts and more.

The Times reports that Tribe will be taking a look at the use of drug courts and mental health courts. He will also work on issues related to criminal, civil and family courts. These are welcome initiatives, but, again, why house these efforts in the agency that prosecutes?

Professor Tribe has a unique opportunity to transform the discussion equal justice for all. I hope he thinks outside the box. That means thinking in terms of what can be done to remove this project from the DOJ and to seek an institutional foundation at least equal to that provided to the prosecution.

Sunday, February 21, 2010

Eric Holder Lip Syncs About Public Defenders

I was a little startled to read the remarks of Attorney General Eric Holder at the National Symposium on Indigent Defense last week in Washington. I mean, there's the nation's top prosecutor admitting what criminal justice insiders know: the system is broke and in serious need of repair.

I applaud Holder's honesty. I only wish he were bolder. Admitting that all have sinned is but boilerplate theology. What's necessary is salvation. And that will only come with radical reform.

First, the obvious truths. Nearly a half century after the Supreme Court's decision in Gideon v. Wainwright, we are still a long way from achieving the goal of equal justice for all. Juveniles are routinely denied counsel. Public defenders are often overwhelmed and unable to provide effective counsel to those accused of crimes. We do not devote resources sufficient to fund the defense of the accused. True, all true, but what to do about this, Mr. Holder?

Holder calls for bandaids to staunch the bleeding. He wants an ongoing dialogue. He wants greater public awareness. And he wants greater participation by public defenders in policymaking discussions. All good. But tell me, really, what will this change? Here are some proposals with teeth:

1. Passage of a Law Enforcement Parity Act. Legislation of this sort would call for an estimate of the cost of administering a penal statute, including the cost of policing, experts, prosecution. Lawmakers would then be required to allocate funds for the defense of those accused of the crimes. There should be rough parity for the prosecution and defense of all crimes.

2. Anyone accused of a crime should be eligible for the services of a publicly funded lawyer, investigators and experts. Whether these funds go to a government mandated public defenders office, or to a private Legal Aid office, or to some hybrid entity is immaterial.

3. The harmless error doctrine should be eliminated in appellate review of criminal convictions. This doctrine excuses deficient performance by criminal defense counsel by asserting that despite counsel's failure, the client would have been convicted anyway. Thus the actual outrage of written decisions holding that a lawyer who slept through portions of his client's trial was not a violation of a defendant's right to counsel. If we are going to get serious about funding defense of those accused of crime, we need to be prepared to bear the consequence of failure. It is not enough to wink and say it really doesn't matter.

4. Requiring as a condition of bar licensure that all lawyers register and participate in a public defender system. Purists will say that the criminal law is not for everyone. Yet everyone who passes the bar is minimally proficient in the criminal law. A public defender panel could experience rate the counsel on its list. Mr. White Shoe corporate lawyer, the guy making $1,000 an hour and never soiling his suit with courthouse grime, could be assigned the simplest case. Hard to imagine he could screw up. And if he did, an appellate system which refused to excuse mistake as harmless would ensure that injustice was not done.

5. Create a criminal justice agency that oversees the funding of both the prosecution and defense. Obviously, the two functions would comprise different divisions with different leadership, but requiring that both divisions report to a common head would foster even resource distribution and foster a sense that the justice was the goal of the criminal justice system.

These are radical reforms. But they are necessary reforms. I'd like to see Mr. Holder put his shoulder behind measures level the playing field between the Government and those accused of crime. His comments last week at the Indigent Defense symposium sounded a little bit like the emporer's invitation to the weavers and millers living in the castle's shadow to a banquet: "Come to the feast," he said. "I'll be sure to save you some table scraps."

Thursday, February 18, 2010

Make Lawmakers Count Cost of Overcriminalization

Are we prepared, as a society, to pay more than lip service to the presumption of innocence? If we are, then it's time to we offered to pay for the legal defense of anyone accused of a crime. Anything less amounts to the most regressive tax of all, a tax which devastates the middle class while encouraging the growth of a government detached from the consequences of its actions.

Let's begin with fundamentals: The United States incarcerates more persons per capita than any other industrial nation on Earth. What's more, the sentences we impose are disproportionately longer than those imposed in other countries. In sum, the land of the free is in the grip of overcriminalization.

Expecting lawmakers to do much about it is like expecting a madam to impose vows of chastity on the working girls. Stirring the passions of voters about crime is just too lucrative a pastime for lawmakers. So legislators pass one law after another, imposing mandatory minimum sentences, enacting new crimes, and supervising the expansion of the penal code.

Until lawmakers are made to understand the cost of their punitive polices, they will continue to prefer severe criminal policies. We permit lawmakers to play with fantasy dollars when it comes to crime. We don't make them count fully the cost of what they are doing. I say change that by requiring the full costs of the criminal justice system to be borne by the public fisc. We can do this by requiring a universal public defender system, and guaranteeing to all citizens the right to a defense paid for by the state.

Indigents are already guaranteed a right to counsel. Ake v. Oklahoma holds that "when a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense." Why are we so sparing in our regard to fundamental fairness? Is the middle class any better equipped to face the state when charged with a crime?

In Connecticut, for example, the eligibility for the services of a public defender for a person with three dependents is $44,100 if the charge is a felony. Suppose a married man with two kids is charged with a felony in Connecticut, but makes $45,000. He is above the eligibility threshold. Let's say the charge is manslaughter, and arises from a motor vehicle collision on the way home from a Super Bowl party. The state charges him with reckless manslaughter for driving while intoxicated.

My anecdotal sense of the market in Connecticut is that lawyers called to defend this case will quote a fee for legal services of somewhere between $5,000 to $25,000 for pre-trial work, with a separate fee of $10,000 to $50,000 for a trial. Where does this client come up with the legal fees? And where does the client come up with money for a toxicologist to review the state's work? Or for an accident reconstruction expert to review the police reports? These fees will cripple a middle class family if the family is lucky enough to be able to raise them.

A better criminal justice system would require the state to pay for both the cost of prosecution and defense. A defendant found guilty could be assessed a fine to cover the costs of his defense.

Requiring the state to pay the full cost of defense for all those accused of a crime would avoid impoverishment of middle class families trying to vindicate the presumption of innocence. It may well be that such funding would have to come from a separate state agency, perhaps one that budgeted resources for both the defense and the prosecution so as to assure some rough parity of resources. Focusing the attention of lawmakers on the total costs of prosecution each offense might force lawmakers to make tough cost-benefit decisions about whether some offenses are worth the expense. It would also inspire meaningful overview of prosecutorial discretion.

Reprinted courtesy of the Connecticut Law Tribune.

Wednesday, February 17, 2010

18B War In New York?

If there is a lawyer alive in New York City surviving on $75 per hour in legal fees, he's probably selling pencils on the side and sleeping in the IRT subway. A ten hour day at such a rate yields $750; a five day week would produce $3,750 at such rates. You can't pay the rent, a secretary, insurance and all the other bells and whistless needed to keep an office afloat at that rate and still earn a living.

Yet lawyers in Manhattan are prepared to go to war over an apparent threat to the current practice of paying counsel for indigent defense at the rate of $75 per hour. The city has promulgated an RFP that has some folks worring that this will spell the end of the so-called 18B lawyer. A war council has been put together to challenge the RFP.

Scott at Simple Justice is whooping it up on behalf of the war council. He sees Big Brother's hand at work here, and the loss of autonomy and independence for the bar. What's more, he uses this proposal as an example of what's wrong with a Universal Public Defender system, guaranteeing to all Americans the right to appointed council when accused of a crime. Scott's tilting at windmills.

I don't practice in New York, so I do not know the mechanics of the 18B circuit. But I suspect one concern the city has is with bundling. Suppose you are handling arraingments at a busy Manhattan court, and you are appointed to represent, let's say, ten clients on a given day. You might spend no more than 15 minutes with each client that day, and perhaps another couple of hours, let's say, three and one half to be generous, in court. That's 150 minutes with the clients, of two and one half hours, plus three and one half hours for court time. Call it a six hour day. What would happen if you billed the City $75 per hour for each client? The day suddenly looks lucrative: your've earned $4,500. Do that for a few days a week, and Manhattan suddenly looks affordable.

Whether this amounts to fraud is an open question. On the private side, I certainly would not double bill for my time if I were on an hourly retainer. If I wait in court cooling my heels for an hour while appearing on behalf of five clients, I just haven't spent five hours of time. But many lawyers will bill each client. There's profit even in the law for economies of scale.

I'm not saying that this is what is going on in Manhattan, but if it is, it's wrong.

I share the frustration over government set rates and fees. Indeed, I am so frustrated by them that I rarely accept work as a so-called Special Public Defender. Several years ago, I resigned in disgust from the federal Criminal Justice Act panel. My office was spending too much time negotiating with court clerks over vouchers: I was spending dollars to chase pennies. But the issue of lawyer convenience sidesteps the issue I am concerned with: Why is the forgotten middle class pressed to come up with legal fees when the prosecution knocks? There ought to be parity of resources for both state and defense. Hence my call for a universal public defender system.

Scott's paen for autonomy for lawyers strikes me as quaint. Sure, we all want to hang a shingle of our own and come and go as we please, and Mr. Smith still pines away for a seat in Washington, too. But its a tough market out there. Making sure we get paid enough to survive presses us into being not just advocates for our clients, but advocates for ourselves.

But notice what Scott is not saying: He is not saying that public defenders are not real lawyers. That is a common slur endorsed by many in the private bar for little more than marketing purposes. I know many public defenders who are excellent attorneys. I also know a lot of mopes chasing squad cars for a buck on the private side. Recepit of government funds does not yield ineffective assistance of counsel: It just might mean, however, that there is a dress code in the office and you can't wear your cowboy hat and spurs to the office.

The war council today among members of the New York criminal defense bar should aim high. I hope the group does more than take a shot at the RFP promulgated by the city. Why not consider a class action on behalf of inigent defendants challenging whether the current rate structure provides adequate assistance of counsel? The doctrine of associational standing provides a platfrom for action as a plaintiff. It is an open question whether a lawyer can offer effective assistance of counsel if he or she cannot pay her bills.

The real issue is not whether the rate of $75 per hour should be defended at all costs. The real issue is what it takes to provide effective assistance to counsel.