Thank you for sharing!

Your article was successfully shared with the contacts you provided.
When Illinois Governor George Ryan announced amnesty for more than 150 death row inmates last year, he justified his controversial move by pointing to paltry legal representation for indigent clients. “There are defense attorneys unqualified to handle complex death penalty cases . . . [who] don’t put much effort into fighting a death sentence, and if your life is on the line, your lawyer certainly ought to be working a little extra hard to make sure that your life is saved.” In Illinois, one-third of death-row inmates were represented by attorneys who, at some point, had been disbarred or suspended. In Access to Justice (Oxford University Press, 2004, 252 pages, $29.95), one of the nation’s leading legal ethicists, Deborah L. Rhode, tells us that Illinois is not alone. In nearly every state using the death penalty, defense attorneys are undertrained and understaffed. The No. 1 factor in determining whether a defendant ends up in death row, says Rhode, is his or her ability to pay for an adequate defense. Legal representation for the poor in other criminal cases fares even worse, says the Stanford Law School professor. Many counties push off legal representation to private lawyers who bid on case loads. The lawyers who win the bids offer to take on a large number of cases at lower costs. The effects are inevitable. A majority of cases end in pleas without a single client-attorney conversation. In some states-Massachusetts the latest among them-lawyers threatened to decline court-appointed cases because of low pay. Indigent defendants who make it to a trial are no better off, Rhode says. Representation is so bad that courts established a legal doctrine to determine whether a defendant assigned a court-appointed attorney can ask for a retrial based on the number of times his attorney fell asleep in court. If the lawyer slept through long and important sections of the case, then the defendant has a winning argument. If the defense attorney fell asleep during “boring” phases, then it is tough luck. Back to jail he goes. No shortage of outrage The corporate hucksters who defrauded America of billions of dollars can rest easy. Their army of lawyers have not slept on the job. And that’s exactly Rhode’s point. There is too much lawyering for the wealthy and not enough for the poor. Rhode does not expect equal access to America’s top lawyers but she does urge some modest steps for effective legal assistance to the poor. Throughout Access to Justice, outrage jumps from every page. Rhode’s opening chapter begins the onslaught. “It is a shameful irony that the country with the world’s most lawyers has one of the least adequate systems for legal assistance. It is more shameful still that the inequities attract so little concern.” The rich-individuals and corporations alike-have access to the nation’s best attorneys while less than 1% of legal costs are spent on the poorest segment of the population. Whether it’s a life-and-death trial or a quotidian landlord-tenant dispute, the poor face systematic barriers to access. Who is to blame? Rhode starts with lawyers and bar associations, describing them as hypocrites. Their promises of equal justice are empty words. In the name of protecting the public from counterfeit lawyers, they severely restrict nonlawyers from using the legal system, even in the most simple transactions like uncontested divorces. The profession has asked for more government-funded legal aid but has committed little energy to this end. Instead, it pats itself on the back for its pro bono efforts. “Such claims suggest more about the profession’s capacity for self-delusion than self-sacrifice,” says Rhode. She commends those lawyers who have put in monumental efforts in volunteering their time for the poor. But she sees this group as a tiny minority. The American Bar Association encourages, but does not require, Rhode points out, each lawyer to put in 50 hours annually of pro bono service. Resentment by large swaths of the legal community followed exploratory discussions of mandating pro bono work. And last year, according to The American Lawyer, only 25% of the 200 highest-revenue firms averaged 50 hours of pro bono work per lawyer. Lawyers direct much of this service on well-to-do nonprofit organizations or friends and relatives rather than the poor, explains Rhode. Legislators are not spared from Rhode’s pillory. They have cut funds to legal aid clinics by a third in the past 20 years, leaving the poor with little means to use the civil system. The federal government provides the majority of funding for legal aid and it spends only $8 per person a year for those in poverty, bringing the nation’s total to as little as one-fifteenth of the amount spent in Great Britain, New Zealand, and Canada. What makes Rhode such an effective advocate is the abundance of support for her arguments. Access to Justice is thoroughly researched and finely written. The same acumen applies to her host of recommendations. Some of them, like simple informal alternatives for non-lawyers to press their rights and resolve routine legal matters, are new. This would require lawyers to lobby for changes with the vigor they put in for paying clients. Others, such as more state aid, ask legislators to put their words into action. But few of these recommendations are likely to take effect. A modicum of the nation’s most powerful lawyers offer more than lip service to providing legal access to the poor or loosening the profession’s monopolistic grip on the legal system. Ryan’s move spurred others to reconsider the death penalty. But few seem to be moved to support the broad reforms needed to ensure equal justice.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.