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January|February 2003
Almost Infamous By John Swansburg
A Lawyer's Limits By Jonathan L. Hafetz
Block Sender By Beth Taylor
Lone Star By Jordan Smith
Neolawisms By Adam Hanft
Off Target By James B. Jacobs
New War, Old Law By Stéphanie Giry

A Lawyer's Limits

By Jonathan L. Hafetz

I met Jim about a year ago when he was staying at a drop-in center for elderly homeless men and women in Manhattan. Drop-in centers are intended to provide a temporary refuge, but most people end up staying for much longer because of the shortage of affordable housing in the city, concerns about the safety of New York's shelter system, and the wide range of services the centers provide. Jim (not his real name) came to see me because the New York City Taxi and Limousine Commission had revoked his hack license four months earlier, and he was still out of work. He was unshaven, wore a baggy wool sweater and leather coat, and, at 61, had the worn look of a cab driver from a different era. As he told me his story, he used his hands as if he were pointing out New York landmarks from behind the wheel.

Jim told me he had driven a cab for over 20 years and had an excellent driving record. I had never handled a case involving the taxi commission, but I provide free legal assistance to the homeless at the drop-in center, and I thought that if Jim regained his license, he might escape homelessness too. When he asked if I could help, I agreed to represent him.

My first task as Jim's lawyer was to untangle the web of bureaucratic rules that had ensnared him. The loss of his license stemmed from a single passenger complaint in 2000 alleging that he had refused to accept a fare. The charge was dismissed because the passenger didn't show up for the hearing, but since Jim didn't show up either, he was issued a new violation for his failure to appear, and a new hearing was scheduled. Jim wasn't receiving the notices from the commission, so he continued to miss the hearings and accumulate violations. He eventually learned about the extent of his problem from the manager of his garage, but by that time it was too late: His license had been revoked.

Jim and his wife lost their home on Long Island four years ago; after a heart attack forced him to reduce the number of hours he worked, Jim was unable to pay the mortgage. The bank eventually foreclosed, and with nowhere else to go, Jim started sleeping in his taxi, while his wife, who was suffering from Alzheimer's disease, was placed in a nursing home. By the time Jim came to the drop-in center, he had lost the things he valued most—his home, his wife, and his job.

In Jim's legal papers, I argued that he had good cause for missing the hearings and that the commission had violated its own rules by punishing him repeatedly for essentially the same offense. But while this defense may have provided sympathetic grounds for overturning the commission's decision, it also made me realize there was more to Jim's story than that of a veteran taxi driver undone by a bureaucratic snafu.

After a few meetings, I noticed that Jim had difficulty remembering important facts, like whether he ever told the commission that he had lost his home. I also began to wonder whether the nervousness I had associated with Jim's eagerness to return to work reflected a deeper worry, a feeling of insecurity about his ability to get behind the wheel again. Jim would grasp my arm and repeatedly confirm the time of our next meeting or some detail about the case. I suspected that Jim's deteriorating mental condition, and not merely his heart problems, explained why his work had dwindled in the last three or four years, so that by the time he lost his license, he was driving a taxi only a couple of hours a day.

A few months after he retained me, Jim started seeing a social worker at the drop-in center. The social worker, whom I'll call Leslie, met with Jim at least twice a week. She believed he was suffering from obsessive-compulsive disorder and depression in addition to medical problems like hypertension and arthritis. It was Leslie's job to be concerned with Jim's overall well-being, and she did everything from persuading him to seek psychiatric treatment to helping him find housing.

Leslie also felt strongly that Jim shouldn't drive a taxi again, at least not until his condition improved. If filling out forms made him anxious, she argued, he couldn't possibly handle the stress of driving a cab in New York City. She believed that Jim's fixation on regaining his license was undermining her efforts to address his other needs. When she emphasized the importance of finding a suitable place to live so that he could leave the drop-in center, Jim would insist on first resolving his case with the commission and returning to work. Although she explained her concerns to Jim, he refused to acknowledge the severity of his psychiatric problems. Given his condition, Leslie didn't see the point of my continuing with his legal case. Why fight to regain Jim's license, she asked me, when it was not in anyone's interest, least of all his own?

The answer to her question was more complicated than it seemed. I had already agreed to represent Jim and help him regain his license. I couldn't withdraw from the case just because I had become uncertain whether he would ever work full time as a taxi driver again. Lawyers have an ethical duty to fight for what a client wants, not for what the lawyer thinks is best for him. This principle of zealous advocacy is contained in the code of professional responsibility, and it is central to how attorneys define their relationship with their clients. Social workers, on the other hand, are generally guided by their clients' best interests—a more subjective and elastic concept that did not require Leslie to continue to fight for Jim's license if it conflicted with her larger goal of promoting his welfare.

With Jim's consent, Leslie and I met every few weeks to discuss the status of his case. She told me about the progress of her clinical sessions with Jim, and I updated her on any developments in his case against the commission. But our conversations about Jim eventually turned into discussions of our different professional roles. While she understood my ethical bind, she found it frustrating that I was obligated to help Jim reach a goal that no longer seemed consistent with his other, more pressing needs.

Leslie and I ultimately came to an arrangement that would allow us to honor our professional duties and still serve what seemed to be Jim's best interests. Leslie would continue to discourage Jim from pursuing his license, but it was Jim's choice to make. In the meantime, I would continue to help him get his license back.

An administrative law judge denied Jim's initial motion, but on appeal the commission's original decision was modified to uphold all the prior violations minus one—enough to reduce the sanction to a suspension. Since the prescribed 30-day suspension period had already elapsed, and Jim had paid the fine as a condition of filing his appeal, the commission lifted the sanction. The manager at Jim's taxi company, who had always treated him kindly, agreed to take him back. All Jim had to do was renew his license, a routine requirement that he had previously neglected.

But our legal victory didn't get Jim back on the road. Jim's doctor, who treated patients at the drop-in center, refused to certify that he was medically fit to drive. The doctor had diagnosed Jim with celiac disease, or gluten intolerance, which can cause problems in cognitive functioning. The disease, the doctor believed, was causing Jim's loss of memory, confusion, and anxiety. He prescribed a strict diet that required Jim to avoid foods like milk, bread, and pasta.

Jim's doctor believes that the new diet could lead to a significant improvement in Jim's condition and perhaps even eliminate the psychological problems that have prevented him from returning to work. But Jim has resisted the regimen; he seems unable to grasp the significance of his eating habits and thinks the diet would be useless.

I have always felt that zealous advocacy is especially important when defending the poor. If Jim had been well off, he could easily have found a lawyer who would have represented him without questioning the wisdom of his choices. I felt I owed him no less. Jim's case didn't shake my belief in the principle of zealous advocacy, but it made me see its limitations for clients like Jim. A narrow focus on what Jim wanted may have helped him regain his license, but that victory will remain incomplete unless Jim's medical and psychiatric conditions improve.

I occasionally run into Jim at the drop-in center, where he still meets with Leslie. His excitement about the legal case he once thought would solve his problems has faded, but he remains as eager to drive a cab as before. He recently moved into his own apartment in a housing program run by a nonprofit organization. Leslie continues to work closely with him, helping him pay his rent on time and cope with the sadness and frustration he feels about his wife's condition, and Leslie is trying to help him stick to his diet. Now it will be the success or failure of her work that will decide whether Jim drives a taxi again.

Jonathan L. Hafetz, a staff attorney for the Partnership for the Homeless in New York City, last wrote for Legal Affairs about housing court.

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