It’s quite a week for 50th Anniversaries! On March 22, it will be 50 years since The Beatles released their first album. But even more importantly than that (!), today marks the 50th Anniversary of one of the most important U.S. Supreme Court decisions ever – Gideon v. Wainright, where the court unanimously ruled that criminal defendants have the right to counsel and if they cannot afford one, an attorney must be provided.
Sadly, though, so much coverage of Gideon today focuses on the unfulfilled promise of that landmark “unfunded mandate." (See, e.g., here, here.) Andrew Cohen writes in The Atlantic
Today, there is a vast gulf between the broad premise of the ruling and the grim practice of legal representation for the nation's poorest litigants. Yes, you have the right to a court-appointed lawyer today -- the right to a lawyer who almost certainly is vastly underpaid and grossly overworked; a lawyer who, according to a Brennan Center for Justice report published last year, often spends less than six minutes per case at hearings where clients plead guilty and are sentenced. With this lawyer -- often just a "potted plant" -- by your side, you've earned the dubious honor of hearing the judge you will face declare that this arrangement is sufficient to secure your rights to a fair trial.
For people stuck on the wrong side of the civil law, however, the situation is worse. Even the elusive, vulnerable promise of Gideon does not apply to them. On Saturday, the New York Times ran a front page story called “Right to Lawyer Can Be Empty Promise for Poor":
Civil matters — including legal issues like home foreclosure, job loss, spousal abuse and parental custody — were not covered by the decision. Today, many states and counties do not offer lawyers to the poor in major civil disputes, and in some criminal ones as well. Those states that do are finding that more people than ever are qualifying for such help, making it impossible to keep up with the need. The result is that even at a time when many law school graduates are without work, many Americans are without lawyers.
The Legal Services Corporation, the Congressionally financed organization that provides lawyers to the poor in civil matters, says there are more than 60 million Americans — 35 percent more than in 2005 — who qualify for its services. But it calculates that 80 percent of the legal needs of the poor go unmet. In state after state, according to a survey of trial judges, more people are now representing themselves in court and they are failing to present necessary evidence, committing procedural errors and poorly examining witnesses, all while new lawyers remain unemployed.
“Some of our most essential rights — those involving our families, our homes, our livelihoods — are the least protected,” Chief Justice Wallace B. Jefferson of the Texas Supreme Court, said in a recent speech at New York University. He noted that a family of four earning $30,000 annually does not qualify for legal aid in many states.
James J. Sandman, president of the Legal Services Corporation, said, “Most Americans don’t realize that you can have your home taken away, your children taken away and you can be a victim of domestic violence but you have no constitutional right to a lawyer to protect you.”
The problem, of course, is that with such unfair budgetary cutbacks, there is no way to pay lawyers for doing this work. So there’s a glut of good lawyers (and many enthusiastic new lawyers finding few job opportunities) anxious to do this work, but they can’t. Writes the Times,
With law school graduates hurting for work, it may appear that there is a glut of lawyers. But many experts say that is a misunderstanding.
“We don’t have an excess of lawyers,” said Martin Guggenheim, a law professor at New York University. “What we have is a miserable fit. In many areas like family and housing law, there is simply no private bar to go to. You couldn’t find a lawyer to help you even if you had the money because there isn’t a dime to be made in those cases.”
You’re probably now thinking that the right to counsel is a complete illusion for anyone except the 1%, but I am here to tell you that you’re wrong - at least for people who have been seriously injured due to the wrongdoing of others. That is because in this country, we have what is known as the "contingency fee" system. It is a system that provides anyone with a legitimate injury case, regardless of their financial means, with access to an attorney. The attorney takes a case without charging any money up front and is paid only if the case is successful. If the Times story is any guide, it is clear that without this system to finance a case, everyday Americans would find it simply impossible to afford counsel when they've been hurt. The difference, of course, is that these are cases involving damages. Fees are paid not by the victim, and not by the government - but by the wrongdoer. Because of that, attorneys can actually afford to help people.
This system has worked without interference for centuries. But that all ended in the 1980s, when lobbyists for big corporations, medical societies and the insurance industry began to attack this system, lobbying for government-imposed schedules and “caps” on contingency fees. The impact of such lopsided government regulation is obvious. Wrongdoers could continue to hire the best attorneys money could buy while the sick and injured could not. Today, half the states in this country have some type of law dealing with contingency fees and most block victims’ ability to hire counsel. (See more here.)
And now, the same kind of corporate attacks have been launched against underfunded and underfinanced state Attorneys General who hire outside counsel on a contingency fee basis. (We’ve noted this before, most recently last week discussing how much money the federal government was paying corporate law firms, out of taxpayer funds, and by the hour):
We wouldn't be so hot and bothered by this had Corporate America not launched a brazen, hypocritical campaign attacking underfunded and under-resourced state Attorneys General who also hire outside counsel. Yet state AG's do so on a contingency basis. In other words, there are no costs to the taxpayer. The AG's hire counsel to help them protect their citizens in many diverse areas, including consumer protection, antitrust and utility regulation, and environmental protection. What’s more, they often recover millions of dollars for state taxpayers!
So needless to say, it’s not a perfect system. Too few legitimate cases make it to court for all kinds of reasons, including not only limits on state AG’s ability to hire contingency fee attorneys but also the hundreds if not thousands of so-called “tort reforms” that have passed since the 1980s.
But even so, thanks to the contingency fee system, at least sometimes the sick, injured and violated do get justice. There is something there, perhaps, to celebrate.
