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New York Daily News

 

No Tax Dollars For Lawsuits: Give The Poor Free Attorneys? No Way - Civil 'Gideon' Is Dangerous

October 18, 2010

By Ted Frank

New York’s chief judge, Jonathan Lippman, has been holding hearings on an expansive new idea: establishing a right to an attorney so that, courtesy of taxpayers, low-income New Yorkers can have free legal representation in a wide range of cases from evictions to divorces to job and welfare disputes and more. But such a program will not have the results Judge Lippman and other well-meaning advocates desire.

The far-reaching idea is given the misnomer “civil Gideon,” after the landmark Gideon vs. Wainwright decision, which enshrined in law the idea of a right to court-appointed counsel for the indigent in criminal cases.

But there’s a big difference: The unanimous Gideon Supreme Court ruling was based on a plainly expressed right in the Sixth Amendment of the Constitution, which acts as a check on the awesome power of the government to deprive someone of liberty.

In civil cases, there is no corresponding constitutional provision. And more importantly, Lippman’s proposal will use taxpayer-funded attorneys to litigate cases against private citizens, effectively aggrandizing rather than limiting government power.

To date, no one has even begun to calculate the direct costs of such a program, which would surely be in the hundreds of millions of dollars in a New York state budget that is already stretched - especially if the taxpayer-funded lawyers will be used to sue the state and its municipalities.

Indeed, most estimates of the expense of government provision of attorneys are huge underestimates, because they are based on static statistics of current unmet needs without regard to the change in demand that will result if attorneys are free. Nor do the estimates consider the secondary costs to society.

As any economist would tell you, if you lower the price of something, you get more demand for it. If it becomes completely costless to bring suit, we will see many more meritless suits.

That’s no small problem in New York, where courts are already overloaded.

If a dispute over shelter entitles a cantankerous tenant to a free attorney on the government’s dime, it will be much easier for people to fight evictions when they violate a lease in ways that threaten other tenants or intentionally refuse to pay rent. Landlords, in turn, will have to hire their own attorneys and raise rents and costs for their honest tenants.

As the demand for attorneys on both sides increases, lawyers will benefit, but everyone else will have to pay more to obtain legal counsel. Middle-class citizens and small businesses with meritorious cases will find it harder to find representation. At the same time, because their income makes them ineligible for the new government benefit, the middle class will see a substantial increase in their implied marginal tax-rate, punishing those who work for a living.

Meanwhile, the honest poor will be worse off as a group: They will trade higher rents and higher taxes and fewer jobs for the right to legal services that often will not help them.

Civil Gideon supporters claim that providing free lawyers will reduce litigation expenses because the lawyers are more likely to settle than litigate, but that’s clearly nonsense. If providing free lawyers really reduced litigation expenses, the New York Court system could do so with its current $2.7 billion budget; it’s because costs will go up that Judge Lippman is prepared to ask for additional taxpayer funding.

Let us use the resources we have before we ask the taxpayers to kick in. Though pro bono work by law firms is at an all-time high, a disproportionate amount of it is in the service of left-wing political causes rather than basic legal aid. A few thousand hours less on terrorists in Guantanamo devoted instead to the local community would make a big difference.

And it seems strange that we are looking first to the taxpayers and not to the rules in New York’s legal system, which in many cases restrict access to justice. The state could, for example, loosen its rules against unauthorized practice of law, permitting lower-cost paralegals to handle many of the simpler legal problems the poor face. A "loser-pays" rule would both discourage wasteful meritless litigation while encouraging contingent-fee lawyers to represent the poor in meritorious cases.

His goal may be to increase access to justice or to help the poor, but Lippmann’s proposal to guarantee legal counsel in civil cases at public expense will do the opposite.

Original Source: http://www.nydailynews.com/opinions/2010/10/18/2010-10-18_no_tax_dollars_for_lawsuits.html?page=1

 

 
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