Pro bono work and justice

The NY Times has an editorial today addressing the gap between the thousands of law school graduates who need work and the many poor people who can't afford legal assistance while also recommending changes in the way pro bono work is reported for experienced attorneys. The editorial misses a few points.

First, they estimate that there are 15,000 lawyers from the last graduating class who are doing work that doesn't require a law degree that could be helping low-income clients. Assuming that 15,000 is could afford to work for free for a long period of time, the Times fails to consider how many of those 15,000 had no intention of practicing and aren't looking for a job that required a law degree (however that is defined) and are happy to use the skills they picked up in law school in the corporate world doing other work? For example, my employer paid for my law degree (a long time ago when tuition was much less) with the assumption that I would use my law degree for them not as a licensed attorney, which I am, but for related work. Not everyone goes to law school with plans to represent individuals in day to day court activities. Many of us always planned to work in the business world using our law degree in some capacity that may not even require us to be a licensed attorney.

Second, while I was probably more knowledgeable of criminal procedure laws back when I graduated, there was no way I would have been qualified to represent, without assistance from a more experienced attorney, a defendant appropriately. While I may have known the laws, I did not know proper procedures and what to do or who to call to accomplish what needed to be accomplished. Those are skills gained by experience outside the class.

Third, the Times is correct when they say a loan forgiveness program is essential to counter the lower pay a public interest attorney earns. My wife, was a public interest attorney for a few years, if she wasn't living with me she would have had to live with her mother on her salary. With today's higher tuition that would be more true today.

Finally, as to pro bono, the work I am currently engaged in (transactional work) probably wouldn't apply to those who would need help. Again, while I know the law, I probably don't know the right laws and would be lost in the courthouse and would do more harm then good. Pro bono work that I have done in the past has been more along the lines of helping a non-profit create a database of laws, part of my skills set. My court advocacy skills are quite rusty now (use it or lose it).

There seems to be an assumption that just because an attorney is licensed to practice law that they can just take on any case. That is not true. If for example, the judge at my local courthouse called me in to represent a criminal defendant, I could do more harm then good as I have not looked at criminal law since I was in law school. I don't know the current law and, while I could research it and get myself up to date, my knowledge of what to file and when to file is also out of date. Aside from jury duty, I haven't been in court since law school.

Well paid (or at least paid enough for a middle class living and loan forgiveness) public assistance attorneys, who specialize in this law and with an appropriate case load, is the way to go if you want justice. You just can't pull any old attorney off the street, tell an indigent client he/she is now represented and leave satisfied that justice will be done. My work is transactional, corporate at that, so while I really wouldn't mind helping an individual, and have even applied to a local legal aid society (they had plenty of younger attorneys who could work more hours and were more up to date on the issues regarding their clients needs) I would at this point in my career do more harm then good.

Even if, as part of pro bono requirements, I was required to take domestic relations or criminal law classes, as a lawyer who is not in the courtroom on a regular basis, that might give me just enough knowledge to be dangerous -- knowledge of the law and court procedures, but not enough knowledge to know how to properly negotiate and get my client justice. Three years in prison for car theft with your buddy? Sounds good to me, but an experienced attorney in this area might know to take other considerations into account (first time offender, didn't know the buddy had stolen the car) and argue that the proper penalty is probation. Same for a different fact pattern in family court with child custody or abuse. Proper advocacy is not something you can do once every few years, like any skill if you don't use it, you lose it.

I don't know what the solution is. It is unjust that the poor can not afford justice, but that has been the way it has been for many years. Legal Aid programs are constantly underfunded and society shows no interest in reversing that (aka higher taxes). Defendants like DSK can afford the attorny who will get him justice but there are plenty of DSKs without that access.

And pro bono alone is not the answer. There are many attorneys like me, not knowledge in areas of law that could help low income clients. But those who are knowledgeable in those areas make far less money and may be fighting for every dime in these low cost/high volume cases (and I am far from wealthy myself, I make less then many people with just a BA but work in the financial field -- can we please kill the myth that all attorneys make $160k, that is the case only for a relative few). It is unfair to place entire burden on the general sole practitioner who could help pro bono clients but make little money and can't afford to sacrifice. And to force young attorneys who are just trying to keep a roof over their heads and loan payments current seems equally unfair.

DSK: Justice or Injustice

Like many New Yorkers I have been following the Dominique Strauss-Kahn (DSK), who was considered a top candidate for the French presidency, rape case with much interest, especially as the case fell apart, leading to it being dismissed due to lack of proof. The case quickly became he said/she said. Once the maid's lies to the prosecutors, grand jury and police became known, she lost all creditability leaving plenty of reasonable doubt as to DSK's guilt. End of story.

If you read the Manhattan district attorney's recommendation of dismissal, which seems to have been written as much for the media and politicians as it was for the court, prosecutors detail numerous incidents where she lied so well that they were fooled, such as the false gang rape in her native country that she apparently made up on the spot as it wasn't on her original asylum application. Under our system of laws DSK was presumed innocent and not presumed guilty. To make him continue to trial when the maid's lies had already poisoned the case was unjust to him.

Protestors demand justice for the maid but what about DSK who was presumed guilty? At the moment we have a man who can not be convicted as there is reasonable doubt that a crime was committed. While an indictment is usually a good sign that there is enough evidence to infer a crime occurred and that the defendant may have done something, it quickly became apparent that the indictment was gotten by the maid lying to the grand jury, meaning DSK should not have been indicted. Yet protestors continue to demand that DSK continue to pay legal fees and be forced to sit through a trial by an accuser who has changed her story so many times that no jury could believe her and even a half competent attorney, who hasn't thought about criminal law since law school 15 years off, could easily defend him. What about justice for him?

What is frightening is that if the maid had not started admitting to the assistant district attorneys she was lying is that a most likely innocent man could have been imprisoned based on her lies (or, contra, a guilty man is going free because her ever changing tales have made conviction impossible). Who knows what else she has been less than truthful about? Worse, she has made it that much more difficult for future rape victims of wealthy, powerful men to get justice as juries and prosecutors will always wonder if this is another DSK case.

The DNA evidence was moot as DSK admitted to a sexual encounter. As medical experts in the district attorney's (DA's) recommendation of dismissal noted, the maid's physical injuries could have been caused by rape or from something else. Heck she even changed her story about one injury, stating originally her arm was hurting her before the encounter but felt better to her arm was injured by DSK during the attack. If she had been consistent in her prior statements and not felt the need to change or make up stories, her case could have continued. Instead her own mysterious actions caused the criminal case to fail.

The other victims of this case are the attorneys. The DA's office had their reputation tarnished just because they tried to help this woman receive justice for a crime she quickly convinced them had happened and, based on the evidence presented and going on the assumption a rape victim would lie so convincingly about such. The maid's attorney, who has just been doing his job in zealously representing her, also has seen his reputation tarnished by his lying client as some will undoubtedly allege he is more interested in seeking justice for his client simply so he can receive some fee in an eventual civil case or settlement (or perhaps he truly believes her).

DSK may be a leech. He may be a creep. He may be an adulterer. Maybe he paid her for sex. Maybe she set him up for money, despite her earlier claims to the contrary, thinking he was just some rich white dude and he just thought he was getting lucky. None of that makes him guilty of rape.

Time to grow up. We're all in this financial mess together

Here we are, a week after the debt deal and drop in credit rating, and the markets are still crashing because we still haven't gotten our act together. It is time for leaders of both parties to get together and actually explain, without any blame or rancor, what our projected revenues and expenses really are -- best case scenario and worst case scenario -- for the next decade or two so we can really decide what benefits to cut and what revenues to increase. It is not a political issue, it is a survival issue for the nation and as soon as we realize that and stop the partisan silliness and work together, the better we, and the economy especially, will be. There is going to be pain no matter what happens. Lets be honest about the sacrifices that will need to be made and share it, that includes, but should not be limited to, upper-income tax payers such as including well off retirees.

We've known for years that paying generous benefits to the elderly while incurring obligations to the future was going to cause a problem when the baby boomers began to retire -- which is now. The way things are presently, the benefits scheduled to go to this generation of retirees is going to destroy the younger generations' ability to cover that, school for their children, their own retirements plus actually spend money to get the economy moving again. The country can't survive that, especially when the lower middle classes, uneducated and unskilled due to school cuts, begin to riot like they are doing in England where anarchy reigns in some neighborhoods and will cost businesses much money.

Tax hikes alone won't work. Neither will benefit cuts alone (well actually that would work but it would be very painful for those already retired and unable to re-enter the work force). Happy days are not here right now and will not be again unless we and especially our leaders grow up like our grandparents did during the Depression and WW2 and tackle this problem that looms over our nation's future. Unfortunately I don't think our leaders will have the backbone and courage to actually tell we the people that we are at war with our spending and debt to encourage us to mobilize to fight it before it is too late.

Heros and Zeros

According to Dictionary.com, the definition of hero is as follows:

he·ro
[heer-oh]
–noun, plural -roes; for 5 also -ros.
1. a [person] of distinguished courage or ability, admired for his brave deeds and noble qualities.
2. a person who, in the opinion of others, has heroic qualities or has performed a heroic act and is regarded as a model or ideal: He was a local hero when he saved the drowning child.

I don't think that includes surviving being shot in the head from just standing in a parking lot talking to voters. Running into burning 110 story towers to rescue strangers, knowing you may not come out alive is heroism. Saving your comrades lives at the cost of your own on the battlefield is heroism. Being a victim of random violence is not.

Yet, on several newscasts this morning I heard Rep. Giffords (D-Az) called a hero for surviving being shot in the head at close range and, after 7 grueling months of rehabilitation, which continues, being able to walk onto the floor of the House of Representatives to make a vote. Surviving and getting better is not heroism, it is choosing the best option and being able to accomplish it. An inspiration? Yes. Achievements for her and her friends, colleagues and family to be proud of? Yes. Joining Vice President Biden in the "cracked-head club"? Yes. A hero? No.

I have nothing against Rep. Giffords and wish her well in her recovery. However, we should not cheapen the term hero. There are many brave men and women who have earned that title for acts that they did and not had done to them.

On the other side there are some real zeros who want to do nothing but destroy this country for I don't know what reasons (I would speculate but that would probably run into libel or something). Now that they have saved us from paying our already spent debt, tea baggers are looking to tackle the oppressive 18.4 cents a gallon gasoline tax, which is miniscule by European standards, perhaps so they can create jobs building toll booths at the end of all our driveways. Apparently spending our tax dollars on nation building by rebuilding damaged infrastructure, such as roads, is only for other countries. I really have to ask why these tea baggers hate Americans and the American economy?

These are the United States, not the 50 individual states. We are one nation, not 50. States are not islands among themselves, they trade with each other and conduct commerce with each other. What good is it for the nation having great roads in NY if you can't get to the ports in NJ? What good is having great roads and a port in NJ if the goods can't get out of the region due to poor roads and rail connections to other parts of the nation? We need good roads to transport goods internally otherwise the economy's decline will continue.

Yet if these economic terrorists have their way, our infrastructure will continue to crumble. Education spending has already been slashed, making our children less competitive on the world market. Now with road spending potentially slashed they will be less mobile and less able to move around the country for work. They say they want less taxes so jobs are created. Yet they are so concerned with the corporate rate and helping large businesses by refusing to raise taxes on the 1% that own the vast majority of American wealth that do not create jobs that they are ignoring helping small businesses, mainly owned by the disappearing middle class, that do generate jobs. How is all of this good for America?

Even President Reagan, who wanted to lower taxes and turn back most of the Federal-aid highway program, except the Interstate System, and all transit programs to the States, raised the gas tax in 1982 to help support America's transportation system. America's. Not New York's. Not Illinois's. Not Florida's. Not Montana's. America's. Yet some reckless ideologues want to remove funding for the nation's transportation system and put the economy under the gun once again with their no taxes demands that could essentially force a decline in the nation's transportation system.

Taxes are at their lowest for the wealthy (and a contractor or doctor making $1M a year is not wealthy for the purpose of this argument, those people are barely cracking the upper-class -- I'm talking top 1% of America wealthy) since Hoover was President (now there is a ringing endorsement for job creation). Under President Bush, only 3 million jobs were created in 8 years by mortgaging the present (our past) for the future (our present) with tax cuts that mainly benefited the top 1% of this nation, the worst level of job creation since 1939 when the Labor Department started keeping payroll records. President Obama has seen those jobs wiped out and more as the country continues to recover from our hangover. Taxes? Still low but no jobs. Under President Clinton, who raised taxes on the rich but lowered them on the middle class, 23 million jobs were created (granted he was helped by the internet transforming how we lived and conducted business), expanding the payroll by over 21% -- more than any other President since 1939. But the tyranny of an uniformed minority would have you believe the only way out of the mess created by the Bush tax cuts to the top 1% is to continue those cuts at the expense of tax cuts for the middle class or more stimulus packages.

We have let the roughly 20 percent of the elected officials in Washington who are running the show, take over the country and hold us hostage to their demands which the other 80% attempts to negotiate. However, the rest of DC forgets the cardinal rule when dealing with those who scorn compromise anyway: never negotiate with economic terrorists. It only encourages them.