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.

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.

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