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Cyrus Dugger

A Constitutional Right to an Excellent Highly Paid Lawyer: Only if You Work for a Rich Company

Every year more than 80 percent of all low-income households experience at least one civil legal problem for which legal assistance is indicated. Of these households, nearly nine out of ten face the problem without legal help of any kind.
- James A. Bamberger, Access to Justice (citing Legal Services Corporation, Documenting the Justice Gap in America (September 2005))

On June 27, 2006, Judge Kaplan ruled that federal prosecutors violated the constitution when they pressured the KPMG corporation (the employer of 16 defendants indicted for corporate fraud) to withhold payment of millions of dollars for their employees' legal fees.

Regardless of your view of the properness of this decision, what is most striking about it, is what it does not also say.

It does not say that everybody is entitled to millions of dollars to pay their lawyers for their defense against criminal charges.

It does not say that people convicted of criminal charges have the right to have an attorney in order to appeal the decision.

It certainly does not say that people facing housing evictions, withdrawal of healthcare, or termination of welfare benefits have a right to have an attorney argue their side of the issue free of charge, let alone to hire the kind of lawyer who charges hundreds of dollars an hour like the defendants in the KPMG case.

What this case highlights more than anything is the skewed nature of both our criminal and civil justice systems.

While the defendants at KPMG are constitutionally entitled to the payment of legal fees by their employer if their employer wishes to pay them (put differently, the government is not allowed to pressure their employers to abandon them in order to court leniency for the company), they face a maximum penalty of only 5-10 years in prison. Other criminal defendants who are facing far more serious charges (in some states the death penalty), are forced to rely on court appointed lawyers who make $60-75 an hour in New York (as of the enactment of a recent bill in 2003 before which the rate was $25 - 40) (also remember that the right to this attorney disappears if there's a need to appeal). Indeed, there have been numerous cases in which these court appointed defense lawyers have slept through the trial, been drunk at trial, or have been high on drugs at the trial and the courts have found that their conduct did not amount to ineffective assistance of counsel (which would allow them to overturn the verdict) because it did not prejudice the proceedings.

Even if you're lucky enough to get a legal aid attorney, they still often have massive caseloads.

In one county in New York, a recent report found that each public defender attorney had 1000 misdemeanor and 175 felony cases a year.

So things are bad if you are not a rich white-collar criminal defendant these days.

But what about non-criminal cases like housing evictions, sexual harassment accusations, withdrawal of government benefits, unfair insurance claim denials, medical malpractice claims? Well - things are even worse. Indeed, you have no right to a lawyer at all --- not even one who only gets paid $60 - 75, or even the approximately $20 that legal Aid Attorneys make - not even one who is just willing to come sit and sleep through your entire trial or proceeding.

New York City is filled with stories of families evicted from homes after court proceedings in which their landlord took them to court.

The need to have counsel in these types of non-criminal legal proceedings is - breathtaking. As previously stated:

Every year more than 80 percent of all low-income households experience at least one civil legal problem for which legal assistance is indicated. Of these households, nearly nine out of ten face the problem without legal help of any kind. Statistical and anecdotal information confirms that a growing number of civil litigants are unrepresented by legal counsel on matters that implicate many of the most personal rights and interests -- personal and family safety, dissolution, child residential placement, child support, eviction defense, defense against housing foreclosures, protection against abusive consumer practices, and predatory lending schemes, just to name a few.
James A. Bamberger, Access to Justice:Confirming: Article : Confirming the Constitutional Right of Meaningful Access to the Courts in Non-Criminal Cases in Washington State, 4 Seattle J. Soc. Just. 383

As has been pointed out by previous commentators, what good is a right to a lawyer within one day of arrest, if you can be evicted permanently from your house without a right to any sort of legal representation whatsoever.

What can we do about this problem? We should all vocally support the Civil Gideon Project endorsed by the America bar Association's president Michael Greco. The project seeks to establish a constitutional right to have a lawyer when on the defensive side of civil proceedings involving such fundamental necessities such as housing.

In New York, we should all support a proposed bill to guarantee civil representation for seniors in housing court that will be up for consideration in the near future (more details to come in future posts).

Only when we all have the right to effectively defend ourselves in civil court with a lawyer, can we really be said to have fully realized rights as Americans - let alone to be the most developed and powerful nation in the world.

Until that happens, just hope that you're not one of the 80% of low - income households who have to interact with the civil justice system - and if you can scrape together the money to find a lawyer - don't forget to keep pinching him so that he doesn't fall asleep - because you can likely forget about being able to sue him for malpractice.

For organizations and people promoting civil gideon click here.

If you or your organization is interested in learning more about or working on these types of civil justice issues, please feel free to contact me at

Cyrus Dugger
Senior Fellow in Civil Justice
Drum Major Institute for Public Policy

Crossposted from DMI Blog

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Posted at 10:00 AM, Jul 19, 2006 in Civil Justice
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