Of course I gave it away by writing “seemingly”. Obviously, I’m now going to tell you how they are related, at least in my mind they are.
Greenfield is critiquing the latest
gimmick proposal by Chief Judge Lippman to coerce require pro bono services out of would be lawyers. That is, people who are not lawyers yet. Law students, say.
Greenfield, as is so often the case, is both right and wrong:
The provision of legal representation to the poor is not a lawyer problem. It’s not a judge problem. And it’s most assuredly not a law student problem. It’s a societal problem, and each effort to tweak the system to alleviate the building pressure saves society, and its elected representatives, from the nasty duty to deal with it.
But let’s come back to that quote.
Irreverent is pointing out that it’s an absurd devaluation of what remains a fairly vigorous vetting process to behave as if anyone, vetted or no, can basically practice law without consequence. Yet that is how things are, almost everywhere. He quotes attorney Karyl Krug:
“Foolishly, I thought I would have to have a license in Arizona to call myself a lawyer in Arizona state court. I paid in excess of $2000 and went through a rigorous criminal and character background investigation lasting 6 months to get my Arizona law license. But it turns out that everybody, including the trial courts in the county with the biggest glut of death penalty cases Arizona has ever seen, can and did call whoever they wanted to a lawyer, with no criminal or other penalty whatsoever.
Now, I suppose there are big problems with enforcing the prohibitions on the unauthorized practice of law. The libertarian in me abhors the idea of more criminal prosecutions. I mean, enough already. On the other hand with civil litigation (private) enforcement you’re just going to wind up suing the judgment proof which, you know, nobody does. Ugh.
Regulatory enforcement? Take a look at how attorney grievance committees work and let me know what you think.
But let’s not kid ourselves that there isn’t a real problem. I have found myself on more than one occasion “competing” with “legal advice” from laymen to clients or prospective clients that is utterly bizarre, along the lines of taking the position that outcomes would be different if you just spoke the magic words to the court. Something to do with the Queen of England and gold fringes on the flag in the courtroom. Others have had similar experiences. But I attribute this to too many – far too many – outcomes that make no sense and can’t be explained rationally other than to say that the courts favor the powerful. People quite understandably will not accept such an explanation, and when they get done with their increasingly bizarre and insane explanations they will turn to violence. If nothing changes, that is.
And how are things going to change? Well, the profession has to do it. There isn’t anyone else. And it’s only reasonable to expect that those on the receiving end will have to lead the way. That means criminal defense lawyers. And personal injury Plaintiff lawyers. When the judge denies your criminal defendant’s well-reasoned motion to dismiss for no good reason in the face of some garbage form opposition from the DA’s office; or when the judge grants insurance defense counsel’s motion for summary judgment for no good reason other than that he thinks no one will make a fuss…..well, make a fuss. A big one.
So here’s where Greenfield is wrong. The gap in legal service to the poor is a lawyer problem and very much a “judge problem”. A lawyer, almost any lawyer, would be able to make a living or even do quite well if judges actually followed the law and applied it even-handedly. Because if they did that, the little guy would win with some frequency,* whereas as things stand now a judge might pay lip service to how valuable your services are by tossing off a phrase or two about it when he screws over you and your client (that’s a common practice), but he’s still screwing over you and your client and rendering your knowledge of the law and your skill in using it and arguing it worthless.
And this change in judicial behavior would also have the salutary effect of doing justice, righting wrongs and making adjustments in wealth from those who have cheated or lied or worse, to those who have been victimized by that – and their lawyers, too.
This is what the rule of law is supposed to accomplish. When you have it.
And then the pro bono thing tends to take care of itself. And the citizenry is less liable to be taken in by charlatans that claim to be lawyers but aren’t. And the citizenry recovers at least some modicum of respect for lawyers and the legal profession because things work a little bit more like they are supposed to, because when they don’t people tend to blame lawyers even though judges are the real problem.
* There’s a whole legal industry to be made opposing foreclosures and evictions. Without making the case in this post, it seems to me none of the big banks should be entitled to foreclose on anyone; and that people being evicted for non-payment are being denied equal protection of the laws. The arguments in support of both propositions are sound and not difficult. What’s difficult is getting judges to yield to sound arguments when that means they’d have to tell the powers that be: “You lose.”