Wednesday, April 20, 2011

Lawyers Matter!

By William Fisher

The year was 1953. I was a bureau chief for the Daytona Beach News-Journal, covering the Volusia County seat, Deland, Florida. That beat meant covering the cops and the courts.

As a young and arguably too idealistic reporter, I was profoundly disappointed in both. I learned that bad lawyering presents a real threat to some of our country’s most precious values.

I learned this by watching, on too many days, lawyers who showed up in county court visibly hung over, unable to address the bench coherently. I learned this by watching lawyers who showed up in court having never met their client and having never read his or her record (most of these defendants were black). I learned this by watching defense lawyers failing to object when prosecutors presented evidence the defense clearly never saw. I learned this by listening to prosecutors engage in rhetoric so inflammatory that it would have been thrown out by most any judge, assuming the judge was paying any attention. I learned this by watching prosecutors totally bamboozle juries by using over-the-top rhetoric and playing fast and loose with the facts of a case (this was a no-brainer in the Jim Crow era in the American South).

But the lawyers I heard all those years ago were not all bad lawyers; some of them were good lawyers practicing law badly. The reason they were practicing badly is that they were unprepared to defend their clients. And they were unprepared because they were appointed by the court. These reluctant volunteers earned a few dollars a day in fees, had little time for client contact, and had no resources to research the allegations against the accused..

That situation came about because there was no public defender, no legal aid organization, and virtually no lawyers who saw the defense of poor black men and women as any part of their responsibilities.

All of these memories came screeching back to me as I watched a meeting of the American Bar Association on C-Span. It was here that I first learned about one of the prices the Republicans in Congress expect us to pay in order to bring down the nation’s budget deficit: cutting $75 million from the budget of the Legal Services Corporation (LSC), the agency that funds civil legal services for the poor.

The LSC is a private, non-profit corporation established by the U.S. Congress to seek to ensure equal access to justice under the law for all Americans by providing civil legal assistance to those who otherwise would be unable to afford it. It was created in 1974 with bipartisan congressional sponsorship and the support of the Nixon administration, and is funded through the congressional appropriations process. Among other programs, LSC provides grants to help local legal aid groups to operate more efficiently for more poor people.

But none of this apparently impressed the Republicans in Congress. The cut in the LSC’s funds was part of their global plan to eliminate $74 billion from the federal budget. And to make matters worse, the Republican-led House Appropriations Committee upped its overall cutting goal from $74 to $100 billion, bowing to pressure from the Tea Party. The increase would likely mean an even larger reduction in LSC funding.

The proposed $75 million funding cut would represent a 17 per cent reduction from the Obama Administration’s proposed increase in LSC funding for Fiscal Year 2011 to $435 million. The Congressional cut would amount to a 14 percent decline from LSC’s current funding of $420 million.

If it survived in the final fiscal 2011 budget passed by Congress, the budget cuts would seriously affect LSC grantee organizations, the local legal aid groups that serve low-income individuals and families throughout the U.S. These grantees are already struggling with recession-generated staff layoffs and office closures.

Professor Stephen B. Bright, president and senior counsel at the Southern Center for Human Rights, told the ABA delegates that public defender offices across the country are overwhelmed with too many cases and too few attorneys. The result is that defense lawyers are forced to “meet ‘em and plead ‘em.”

This has caused what the American Bar Association calls a crisis within the justice system.

Bright explained, “There are massive amounts of federal funds for task forces and prosecuting indigents, but there’s no federal funding for representing indigents.”

Bright’s statement was backed up by Corey Stoughton, senior staff attorney and upstate litigation coordinator at the New York Civil Liberties Union. She said 20 people currently charged with a crime and receiving state–sponsored legal help are being denied their constitutional right to adequate counsel.

“The problem isn’t bad lawyers, it’s a bad system,” she said. She added that
the media often headlines the extreme cases of bad lawyers within a bad system. This makes it “hard to change the narrative,” she said.

Stephen Zack, the current ABA president, said in a statement, “Hard choices loom as to priorities for federal spending, but let’s be smart about where reductions are made. Slashing funds that keep working class and poor people from falling into a legal and financial tailspin is not the right decision in this economy.” The ABA is a long-time supporter of the LSC.

The proposed funding cut would only exacerbate the LSC’s problems. For the past several years, it has been attempting to operate with large chunks of its potential activity foreclosed. It has been unable to help, not only with programs that receive government funds but even those that use non-federal funds raised by legal services programs.

Since their passage, these restrictions have been plagued by repeated First Amendment questions and have sparked calls for change, says watchdog group OMB Watch.

Lee Mason, Director of Nonprofit Speech Rights at the Washington-based advocacy group, says, “The restrictions on the use of non-federal funds of the Legal Services Corporation amount to an all out attack on the constitutionally guaranteed First Amendment Rights of millions of citizens of America."

OMB Watch says the origin of the funding restrictions was a concerted effort by right-wing interests to deny low-income people access to the courts by destroying LSC. In “Mandate for Leadership,” the conservative agenda published on the eve of President Ronald Reagan’s first term in 1981, the conservative Heritage Foundation called for LSC’s wholesale destruction. Barring its complete demise, Heritage argued for steep budget cuts and the imposition of broad restrictions through LSC appropriations riders.

Should we be surprised that Congressional Republicans want to further cripple the LSC’s efforts to provide legal help to the poor? As noted above, right-wing ideologues have been trying to destroy the LSC since 1981. And the further reduction of these legal services is clearly of a piece with the GOP’s proposed “reform” of Medicaid – which would severely limit health care services to low-income families.

I wonder if the Republicans’ budget wunderkind, Rep. Paul Ryan of Wisconsin, ever had to pay legal fees out of his own pocket. Even a Congressman’s salary ($174,000 a year plus benefits) could quickly be zeroed out.

But Rep. Ryan’s salary is not a major concern to me. Except that he’s probably being overpaid.

What is of concern to me that when only one side in a dispute has access to legal help, the rule of law becomes meaningless. And when that happens, one of the core principles that define America also becomes meaningless.

Though her talk was on the role of lawyers in the national security debate,
ABA President-elect Laurel Bellows captured the essence of the campaign to castrate the LSC. She said, “For lawyers to matter and for this association to truly matter, our voice must be heard on the great issues, issues that affect the rights and liberties of all Americans.”

Competent legal help for those unable to pay for it is one of those rights.