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The Sorry State of Indigent Defense

February 11, 2014 03:34:35 pm

By Sheldon Krantz

The legal profession is failing to respond effectively to what is an appalling access-to-justice crisis in America.  

With a few notable exceptions—such as Stephen Bright at the Southern Center for Human Rights, Jonathan Rapping at Gideon’s Promise, Virginia Sloan at the Constitution Project, Attorney General Eric Holder, and Laurie Robinson, the former Assistant Attorney General for the Office of Justice Programs—the legal profession is saying and doing little to address the sorry state of indigent defense.  

The constitutional right to effective assistance of counsel means little to the thousands of defendants who are not receiving it.

And it’s not as if this is a new problem.

“The scandalous quality of lawyers for the poor has been studied and documented repeatedly,”  Bright, Sloan and Sherrilyn Ifill  wrote recently in, Lawyers, Not Another Commission, for the Poor

What can be done?  

Establishment law firms and lawyers need to be a strong voice for reform.  They should be assertive and strategic in pursuing substantially increased federal and state funding levels for indigent defense.

Equally important, the legal profession must encourage lawyers in the private bar to undertake criminal defense work.  

Public defenders handle the overwhelming bulk of indigent representation,  but they fall far short of  meeting indigent needs and are generally precluded from representing those not impoverished who cannot afford the rates that most lawyers charge. 

The private bar has largely been missing in action in criminal defense work since federal and state public defender programs began taking hold in the 1960s. I would be surprised if more than 5%-10% take any criminal cases today.

Why is that?  

Criminal practice, first of all, has an unsavory reputation within the legal profession—one it does not deserve. In addition, there is often much at stake for those charged with criminal offenses, and most get convicted. 

Lawyers are risk-averse and do not like losing.  Even skilled civil litigators are often uncomfortable with the differing rules and procedures governing criminal cases. And with the possible exception of white collar defense work,-criminal cases tend to pay less than other matters—such as corporate transactional work or products liability litigation. 

But this does not give the legal profession license to ignore this field.  

Quite the contrary.  

As the American Bar Association Model Rules of Professional Conduct unequivocally states, lawyers have a special responsibility to “ensure equal access to justice for all those who because of economic and social barriers cannot afford or secure adequate legal counsel.”

Quite aside from this obligation, those of us who have been involved know criminal defense work can be both rewarding and intellectually challenging.  Requiring the government to meet its burden of proof and otherwise assuring that a criminal defendant is treated fairly is the essence of what being in a helping profession should mean.

There are other compelling reasons for the private bar to return to criminal practice.  It makes no sense that at a time of such great need, there are thousands of under-employed, unemployed and unhappily employed lawyers looking for meaningful things to do.  

They are joined each year by over 35,000 law students entering a depressed job market.

Thus, the legal profession should promote the importance and value of criminal defense work, in both the public and private sectors.  Here are some ways it can do that:   

  • Push for greatly expanded incentives for law graduates and young associates to serve as public defenders or to devote time in early in their legal careers to criminal defense work.  

Fortunately, some of these incentives are starting to emerge.  

With support from the U.S. Department of Justice, Gideon’s Promise, a non-profit group, has launched a project with five law schools—UCLA, American University, New York University, the University of Chicago, and Northwestern—to recruit third year law students to work in southern public defender projects.  

A growing number of federally and privately supported public interest student debt forgiveness and loan repayment assistance programs (LRAPs) also provide debt relief for those who go to work for public defender and other public interest agencies.  

The legal profession should build upon these initiatives and help secure far greater funding from both public and private sources.

Law firms should also encourage their entering associates, after training, to take criminal cases. Since corporate clients often refuse to pay for new associate time, some law firms are arranging professional development and apprenticeship-type opportunities for them—including public interest agency assignments and extensive pro bono work. 

More firms should follow suit and give emphasis to public defenders and criminal pro bono.  Aside from helping alleviate a criminal justice crisis, this will provide invaluable litigation and opportunities to interact with clients.

 *Encourage law firms and lawyers to take more reduced fee and pro bono criminal defense matters.

Most lawyers avoid—like the plague—taking court-assigned criminal cases, handling criminal pro bono matters, or reducing fees for prospective limited means clients. 

We need a different mindset.  

As part of their commitment to address the access-to-justice crisis, law firms and lawyers should devote a stated percentage of time to criminal pro bono matters and court assignments. They should substantially reduce fees in situations where potential clients who have been charged or are under investigation, while not impoverished, cannot afford standard billing rates. 

As a white-collar criminal defense lawyer, I learned that even government officials and employees with more than modest incomes—like those now caught up in the  investigation of New Jersey Gov. Chris Christie will quickly learn—have difficulty paying the fees charged by larger law firms. 

So even at this level, fee concessions need to be made in appropriate cases.  

It is time for the legal profession to play a critical role in criminal defense.  It should take ability to pay into account at all income levels. 

Sheldon Krantz is a Distinguished Visiting Professor of Law at the University of Maryland Carey School of Law.  For close to two decades, he was a litigation partner at DLA Piper, where he founded and headed New Perimeter, its award winning international pro bono affiliate.  He is the author of The Legal Profession: What is Wrong and How to Fix It.  Information about the book and how to purchase it are available on www.sheldonkrantz.com . Former Assistant A-G Laurie Robinson, mentioned in the above essay, is his wife.  He welcomes comments from readers .

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