Results matching “"civil gideon"”

No comment needed - PointOfLaw Forum

Headline: "Federal judge orders sex-reassignment surgery for Mass. prisoner." And "prisoner" is perhaps less descriptive than "convicted murderer serving life sentence without possibility of parole."

(I actually talked about an earlier iteration of this litigation in my 2008 critique of civil Gideon: when this is what BigLaw firms are expending "pro bono" resources on, it is obscene to demand taxpayers subsidize other civil litigation because some cannot afford attorneys. The law firm apparently has put another four years into the case since.)

Actually, some comment is needed. If regular citizens can't get taxpayer-paid sex-reassignment surgery, but convicted murderers can, is this a good incentive structure? And keep an eye out for whether Bingham McCutcheon asks for attorneys' fees.

New York pro bono requirement - PointOfLaw Forum

Details are sketchy, but New York state appears to be about to initiate a program requiring its 10,000 annual applicants to the bar to demonstrate 50 hours of supervised pro bono work as a prerequisite. [NY Times; Justice Lippman speech]

My view is that this proposal imposing a tax on attorneys is preferable to proposals taxing a broader tax base for the same thing under the guise of "civil Gideon." (More preferable still would be to make the requirement a substitute for, rather than in addition to, barriers to entry like the bar exam and CLE requirements.) On the other hand, fifty hours of an inexperienced attorney is perhaps comparable to twenty hours of an experienced attorney's work, so one questions how much of a gap this requirement will close. My greater concern is that the breadth of pro bono will be inconsistently applied to permit attorneys to engage in societally counterproductive activity characterized as "pro bono," but that a double standard will preclude work for the Institute for Justice or Center for Individual Rights.

(If, however, "work for a non-profit" can be out of state, I am happy to take requests to provide the Center for Class Action Fairness LLC.fifty hours of pro bono work. CCAF is not affiliated with the Manhattan Institute.)

Battista v. Clarke - PointOfLaw Forum

In February 1983, Sandy Jo Battista (born David Megarry) was convicted and sentenced to 12 to 20 years for the rape of a child under 16, unarmed robbery and kidnapping. Battista was temporarily committed in December 2001, then civilly committed to the Massachusetts Treatment Center for Sexually Dangerous Persons in May 2003 for one day to life as a sexually dangerous person. But Battista is more than a child rapist; he claims to have gender identity disorder, and wants taxpayers to pay for hormone treatment and be provided with female garb and accessories. The prison refused, noting that a female appearance, such as the breasts that would grow upon hormone treatment, would endanger Battista's safety in prison, and would create problems under the Prison Rape Elimination Act. Because Battista breaks prison rules regularly, he could not be put in a different facility. But a BigLaw firm, McDermott Will, represented him pro bono, and won an injunction requiring the treatment on the grounds that it rose to a constitutional violation for him not to get his requested treatment, including women's attire.

The First Circuit, in a panel including former Justice Souter, has affirmed. Yes, choice of clothing for prisoners and the ability to grow breasts now rises to constitutional significance. [NLJ; NLJ]

So keep in mind, when you hear that there needs to be civil Gideon and more taxpayer funding of civil litigation, because there isn't enough pro bono help from law firms, that at least one law firm with over $1.5 million profits per partner has hundreds of hours of attorney time to spare for a poorly behaved rapist who wants gender reassignment therapy at taxpayer expense.

Around the web, April 22 - PointOfLaw Forum

  • Overcriminalization and the Constitution. [Heritage]
  • Early coverage of the (still undocketed) CCAF Cobell objection, including the first conspiracy theory. [Plains Daily; ATL; Popehat; Overlawyered; Turtle Talk; earlier]
  • "How is it that the government can prosecute someone for not providing an agency with what they claim is discoverable material, while not prosecuting DOJ attorneys who fail to provide constitutionally mandated discoverable material to defense attorneys?" Feds re-indict former Glaxo in-house lawyer. [Corporate Counsel/law.com]
  • Does clinic representation make a difference for clients? NB obvious "civil Gideon" implications. [Concurring Opinions via Olson]
  • "More disclosure may be a good idea. But the way to get it is to fix securities litigation." [Ribstein]

  • "Public Interest Objectors in Class Action Settlements" [Karlsgodt]
  • SEC proposes crackdown on Wall Street bonuses. [Dealbook/NYT]
  • In defense of habeas. [Greenfield; earlier]
  • Spitzer's role in causing the financial crisis? [Ribstein; WSJ]

"A nation of lawyers and judges" - PointOfLaw Forum

Larry Ribstein's review of Benjamin Barton's new book, The Lawyer-Judge Bias, summarizes the countless ways the judicial system favors lawyers at the expense of other elements of society. I've previously noted that lawyers would go out of business if legal malpractice standards were anything like medical malpractice standards. And the bar is attempting to increase lawyer hegemony through the promotion of civil Gideon.

Ribstein suggests that changes in the legal information industry could reduce the power of lawyers, but I'm skeptical, given the control of the power of lawyers over what is and isn't permissible. Ribstein already took us up on our invitation to analyze how one state bar is trying to squelch attorneys' use of Groupon to provide cheaper legal services. The outsourcing of discovery will evaporate overnight the first time Wikileaks gets a hold of attorney-client privileged documents and a court helpfully rules that the mysterious privilege was waived when the document was sent overseas to non-American-licensed personnel. Meanwhile, in 2007, Democrat Charles Schumer and Iconoclast Michael Bloomberg called for reform, noting that our legal system was choking New York's competitiveness in the financial industry, and Congress responded with Dodd-Frank and the Obama administration pushed for a rollback of Supreme Court decisions reducing the scope of the abusiveness of the securities laws—even as the New York Stock Exchange finds it needs German help to survive.

Debt purchasers - PointOfLaw Forum

The Wall Street Journal documents debt buyers' new strategy of resorting to the courts rather than standard collection techniques, with thousands of cases this year in the Bronx alone. This is not surprising—debt collection costs money and is fraught with potential liability if done wrong.

Larry Ribstein notes that the problem of debtors having no representation in courts is a function of lawyer licensing regimes that limit the supply of legal assistance. Indeed, this is true; he forgets, however, the public-choice aspect of the legal cartel's response to the problem: rather than end the cartel that is causing the problem, the legal community is rallying behind the idea of taxpayer subsidization of lawyers in these civil cases, i.e., "civil Gideon." Hearings are being held on the latter (without regard to the enormous direct and indirect costs of such a public policy) with no one mentioning the basic market reforms that could solve the problem.

Another irony is that the legal community is fighting against systems of alternative dispute resolution such as mandatory arbitration that would both reduce costs to consumers and improve the results for unrepresented debtors. As Sarah Cole and I documented in 2008, arbitration rules require scrutiny of creditors' claims even when the debtor defaults on the legal process; as a result, while debtors nearly invariably lose in claims court, a substantial number win reductions in debt even when they default. And because creditors save money through mandatory arbitration because they have less worry of frivolous lawsuits, consumers win with lower interest rates and higher benefits. Alas, Dodd-Frank includes provisions for regulation that will almost certainly ultimately bar mandatory arbitration in credit agreements, making consumers—and debtors—worse off.

Around the web, October 19 - PointOfLaw Forum

  • Wouldn't you know, those foreclosure moratoria have effects on people other than people who haven't paid their mortgages. [WaPo]
  • The libertarian challenge to Obamacare. [Epstein]
  • Maryland high court upholds damages caps. [Fisher]
  • Paycheck Fairness Act will put small businesses out of business. [NLJ]
  • NY court rejects product-liability theory when no alternative design offered. [WLF]
  • Possible sanctions for lawyers who misrepresented facts to court in getting unconstitutional prior restraint on reporter in POM case. [NLJ]
  • A couple of Wisconsin attorneys are skeptical of civil Gideon proposals in that state. [Wisc. LJ; Petrie Stocking]
  • South Carolina high court to decide if "poker is a game of skill" loophole will permit home poker games without state interference. [Post and Courier]
  • Democrats' glass house on foreign money. [Hayward @ NRO]

New York "civil Gideon"? My piece in the Daily News - PointOfLaw Forum

New York's chief judge, Jonathan Lippman, has been holding hearings on an expansive new idea: establishing a right to an attorney so that, courtesy of taxpayers, low-income New Yorkers can have free legal representation in a wide range of cases from evictions to divorces to job and welfare disputes and more. But such a program will not have the results Judge Lippman and other well-meaning advocates desire.

Read the whole thing. Unfortunately, the headline somewhat misstates my views: I don't oppose giving the poor free attorneys in all situations (as the oped itself makes clear), just the idea that there is a "right" to a free attorney at taxpayer expense in a civil case. More on the Lippman hearings: NY Daily News; WSJ; NYT. None of the press accounts have mentioned how one-sided the "hearings" are; show-trial rallies are more like it. More detail on my opposition to civil Gideon, plus my appearance at a CAP/ACS panel.

Asylum denial rates go down - PointOfLaw Forum

I've previously argued that the benefits of so-called "civil Gideon" are overstated, and another example hit the news recently.

In FY 1986, 89% of asylum claims were denied, and 52% of asylum seekers had counsel.
In FY 2010, 50% of asylum claims were denied, and 91% of asylum seekers had counsel; the approval rates for without and with counsel were 11% and 54% respectively.

Therefore, Syracuse's Transactional Records Access Clearinghouse announces, legal representation helps asylum seekers in court, and more legal representation is needed—a claim repeated uncritically by an article by Marcia Coyle in the National Law Journal without any opposition in her story. Given that the ABA has called for that legal representation to come at taxpayer expense, that is not an apolitical claim.

There are two problems with TRAC's claim. First, the causal arrow goes both ways. For example, in civil litigation, a number of delusional people insist upon self-representation or are refused representation by attorneys. They do not lose their cases because they don't have attorneys, they don't have attorneys because their cases are facially meritless. The same is true in asylum cases. Someone with a meritorious asylum case is more likely to spend their own money to ensure they have an attorney; an attorney trying to decide which of her scarce resources to devote to a pro bono case is going to triage her cases to reject the ones she does not think have merit. Coming to court with an attorney is a signaling device that either the client or the attorney thinks the case has enough merit to expend time and money on it.

Second, it is painfully obvious from TRAC's own numbers that there are other causes for the huge decrease in asylum denials. Even if every unrepresented applicant was denied asylum in 1986 (which clearly wouldn't be true), represented applicants could not have won more than 22% of their cases. So judges are granting asylum far more often today—which is odd, because there has been no material change in asylum law, and in terms of facts on the ground, the world is a far less repressive place in 2010 than it was in 1986 by any legitimate measure.

In short, TRAC and the National Law Journal have missed the real story. Why are asylum rates going up? The change in the mix of judges seems to have something to do with it. And the most notorious asylum seeker this year, Zeituni Onyango, Barack Obama's Kenyan aunt, was granted asylum on the laughable theory that she faced political oppression because she was related to Obama, a hero in Kenya. Ms. Onyango, who ignored a 2004 deportation order after her original asylum request was denied during the Clinton era, is now living on the taxpayer dime in Boston.

Top Ten legal ethics stories of 2009 - PointOfLaw Forum

John Steele at Legal Ethics Forum nominates, among others, Caperton, Civil Gideon, prosecutorial misconduct, and lawyers' misadventures in social media.

Around the web, October 19 - PointOfLaw Forum

New at Overlawyered - PointOfLaw Forum

If you're not reading my other blog, Overlawyered, you're missing out on a lot:

Judge Jacobs and pro bono, cont'd - PointOfLaw Forum

The Federalist Society has now posted a copy of Judge Dennis Jacobs' speech on pro bono, discussed at length in this space yesterday. I really can't improve on Prof. Obbie's take, so I'm just going to excerpt a portion of it:

There's nothing like a recording or speech text to serve as a check on faulty reporting. As I and others suspected, 2nd Circuit Chief Judge Dennis Jacobs' remarks to a Federalist Society gathering in Rochester were wildly misinterpreted by the reporter covering the event, and then by critics who seized upon Jacobs' supposed views as evidence of his hate for all pro bono (and by implication for all poor people in need of free legal help).

The Federalist Society posted the full text this afternoon. Reading Jacobs' words side by side with the story is enough to make one gag. Reporter Elizabeth Stull of The Daily Record in Rochester cherry-picked Jacobs' remarks to reflect a sweeping condemnation of pro bono and impact litigation that simply isn't what he said. He instead made a thoughtful argument about supposed abuses of pro bono causes. And he explicitly, repeatedly praised certain traditional forms of pro bono. ...

Now, if only The Daily Record will read the transcript and run an appropriate correction -- followed by apologies from the critics who took the original story to the bank.

Thanks to Glenn Reynolds at Instapundit and the others who linked yesterday's post, ensuring that it would be widely seen. For more on the problems posed by ideologized pro bono work, see, e.g., Ted Frank's AEI paper on Civil Gideon (text at footnotes 25-29) and Heather Mac Donald's 2000 article for City Journal.

Update (Friday 1:45 p.m. EDT): Incredibly, in correspondence with the WSJ law blog, Chemerinsky is digging in. He claims that on reading the speech itself he finds the Rochester paper's account accurate enough, goes on to extensively misdescribe the contents of Jacobs' speech (easy to check here), and refuses to apologize. As I say, incredible.

Around the web, July 14 - PointOfLaw Forum

  • "We would say 'only in America' but for the fact that it's in Russia": travails of Bank of New York in Moscow courtroom show need to rethink RICO law [NY Sun editorial, earlier]
  • New Hampshire is latest target for ABA-backed "Civil Gideon" push for blanket right to taxpayer-paid lawyers in noncriminal cases [Jonathan Baird, Concord Monitor via ABA Journal; earlier] Last December the Washington Supreme Court ruled against such a constitutional claim [Perkins Coie]
  • Expect some hot contests in Mississippi high court races [Clarion-Ledger] "What do Dickie Scruggs' crimes have to do with you? Plenty." [Ziemba, Meridian Star via YallPolitics]
  • Most dangerous kind of discrimination claim? Jury sets $10 million punitive damages in age-bias suit against telecom firm Avaya [NJLJ]
  • Score one against litigation slush funds: after controversy over payout to Seton Hall Law in Bristol-Myers Squibb nonprosecution deal, DoJ adopts policy to curb deals "requiring a defendant to pay a third party unrelated to the defendant's criminal conduct" [Corporate Counsel, earlier]
  • Texas Watch, a group whose views often seem to reflect those of the Lone Star State's litigation lobby, keeps firing blanks at the Supreme Court of Texas [SMS blog]

If you're not reading Overlawyered... - PointOfLaw Forum

Things you're missing if you're still not reading my (and Ted's) other blog: intensive coverage of the Dickie Scruggs indictment and its fallout; new trial lawyer group fighting with AAJ over ATLA acronym; ten state AGs object to provision in TJX class-action settlement; NY courts kind toward lawyers on question of when contingency fee deal is inherently abusive of client; Crocs footwear fad fades, resulting in inevitable shareholder suit; "Civil Gideon" push for NYC tenants; feds intervene against alleged fee overcharge by marine-dumping whistleblowers' lawyers; outcomes of Paxil settlement held secret; and much, much more.

NYC council: poor tenants should have eviction lawyers - PointOfLaw Forum

Note that the proposal here is not to provide free lawyers in cases where careful case-screening establishes a fair argument that the eviction is in some way legally wrongful or unjustified. It's to use taxpayer money to make sure that tenants who've trashed the apartment or stiffed the landlord on months of rent are also assigned a lawyer who will predictably use all the procedural leverage available to stall things out further, extract a payment as a condition for the tenant's leaving, and so forth. NYU's Brennan Center is pushing the scheme, which has 22 sponsors on the New York City council. (Manny Fernandez, "Free Legal Aid Sought for Elderly Tenants", New York Times, Nov. 16). For more about "Civil Gideon" schemes, see this post (scroll) and this one (David Giacalone: "Attorney Employment Assurance Plan")(cross-posted from Overlawyered).

P.S.: To clarify matters: for now, the program would apply to elderly tenants (which doesn't mean all the occupants of the apartment will necessarily be elderly).

Giacalone on "Civil Gideon" - PointOfLaw Forum

As we've had occasion to note in the past (scroll), there's a campaign underway to create a broad-based new entitlement for low-income persons (and perhaps others as well) to be provided with lawyers at public expense to handle a variety of civil matters, and not just criminal defense matters as provided in the Supreme Court's decision Gideon v. Wainwright. David Giacalone's critique of the idea is worth reading:

Like the proponents of the ABA�s Civil Gideon Resolution (e.g., here and here) [attorney Paul] Martinek argues that no lawyerless litigant can get a fair hearing when the other side has a lawyer � and that having a lawyer will ensure such fairness. Although he mentions that there are �some practical downsides� with Civil Gideon (such as its �staggering� cost, difficulties telling who is eligible, and disincentives to settle when you have a free lawyer), Martinek concludes that �something� must be done and:
�The issues that are litigated in family courts - especially those involving the right to see and help raise one�s children - are too important to be dealt with by emotionally overwhelmed mothers and fathers with no training in the law.�

I believe we need to ask whether it makes more sense to increase the importance of lawyers in family and housing courts or to work much harder to structure the judicial system so that most individuals can achieve fair and effective justice without lawyers (see our About page). Based on my experience as a self-help law proponent, a legal ethics watchdog, and an observer of the legal profession�s attitude toward access to justice, and after spending a decade in a law practice focused on Family Court, here are some of the problems that I have with the lawyers-for-all-style Civil Gideon:

1. It looks far too much like an Attorney Employment Assurance Plan for underemployed members of the Main Street bar. In addition, Civil Gideon is backed by some groups that resisted court-based self-help centers, for fear they would undermine legal aid budgets, as well as by private lawyer groups who resisted both self-help centers and alternative dispute programs at courts, for fear that they might lose clients or have cases shortened by settlements.

2. It assumes that lawyers can do a better job than reasonably-informed laypersons in presenting cases that involve their families (or sustenance and housing conditions). This infantilizes litigants and denigrates the intelligence of the vast majority of pro se litigants, who know far better than any lawyer the facts of their situation and are capable of telling their stories to receptive judges. It also contradicts studies of family court lawyers; see below)

3. It assumes that two opposing lawyers will more quickly and fairly settle a case than will unrepresented parties. (As Law Guardian for hundred of children in family court, I saw far too many cases where lawyers dragged out cases, inflamed conflict, misunderstood the basic needs of the parties.)

4. It assumes that Assigned Counsel will competently and diligently represent their low income client (see discussion below).

5. It overlooks the fact that hiring an attorney virtually impoverishes, or is simply beyond the financial ability of, a very large portion of Americans who are not considered poor, but are far from rich � and, unlike self-help programs, Civil Gideon makes no accommodation for these people. [update: March 10, 2007: see our post �the dis-accessed middle class of North America,� which discusses the situation in Canada, as seen through the eyes of their Chief Justice.]

6. It overlooks the fact that every single day thousands of low-income Americans are able to receive a fair hearing of their disputes in Family (and other people-oriented) Courts � and that self-help centers and pro se programs for judges and court staff are spreading and becoming more and more effective.

Giacalone goes on to detail problems with the existing system of publicly assigned counsel. The whole post, which includes a response from attorney Martinek and other reader comments, is here.

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