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May|June 2002
Bum Rap By Christopher Hawthorne
Shoddy Construction By Benjamin Wittes
Kenneth Starr Responds By Kenneth Starr
Chains of Command By Beth Hillman
Silence! By David Luban
No Exceptions? By Michael Ignatieff

Silence!

Four ways the law keeps poor people from getting heard in court.

By David Luban

In America, who gets a lawyer and who doesn't? In the last few years, that question has been increasingly politicized by attacks on lawyers who represent poor people and left-of-center causes. These attacks strive to win legal arguments not by offering better ones, but by getting rid of the advocates who make the arguments for the other side. Lyndon Johnson famously defeated insurgents in the Texas Democratic Party by arranging to have the microphone unplugged when they got up to speak. If that was dirty politics, then taking out your adversary's lawyer is dirty law.

One of America's persistent myths is that the rich get richer, the poor get lawyers, and the middle class gets squeezed. In fact, of the $100 billion spent on legal services in the United States each year, less than 1 percent goes to delivering civil legal services to low-income Americans. About 5,000 legal-aid lawyers in the country serve the 50 million Americans who qualify for free legal services: roughly 4,000 legal-aid lawyers, plus about 1,000 other civil lawyers for the poor. There are also a few hundred public-interest lawyers working for causes all across the political spectrum—from gay rights to the rights of Christian home-schoolers, from consumer protection to business deregulation.

The numbers add up to one civil legal-aid lawyer for about 10,000 low-income clients—compared to one private lawyer for about 240 middle- and upper-income clients. To put the numbers in perspective, the American Bar Association found that in 1992 about half of low-income households confronted a legal problem. That's roughly 5,000 cases a year for each lawyer—100 a week, 20 a day. The numbers mean that most people who can't afford a lawyer don't have a prayer of getting one for free.

Why should that matter to anyone other than the people who go unrepresented? A lawyer's gut-level belief that everyone ought to have one may just be professional bias. But access to justice means more than legal process for process's sake. Fair process is the glue that keeps a pluralist society from coming apart at the seams.

After all, in a vibrant, vital society, conflict is inevitable. As the philosopher Stuart Hampshire wisely observes in his recent book Justice Is Conflict, the true source of value clashes is human variety itself, and that makes conflict downright desirable. Values don't come from the intellect, but from memory and imagination—primordial forces that are idiosyncratic to the core. As a result, conceptions of the good are irreducibly diverse, and the quest for definitive proof that one is superior to all others is hopeless. People will never agree on starting points.

In place of a specific vision of the good society, then, Hampshire offers a principle of procedural justice, the simple but powerful requirement to "hear the other side." This is the principle of adversary argument, and we follow it instinctively whenever we resolve conflicts within our own minds. The back-and-forth of inner argument makes hearing the other side as basic to practical reason as counting is to arithmetic. The same principle underlies the legal adversary system. By making each party responsible for presenting its own case, the adversary system arranges incentives so that every point of view gets presented as fully and sympathetically as possible. Partisan advocacy thus ensures that arguments won't get overlooked. And giving full voice to conflicting positions is more just. That's because, in Hampshire's phrase, justice is conflict.

If the chief virtue of the adversary system lies in giving opposing parties a hearing, its greatest vice lies in giving those parties an incentive to silence each other. Every trial lawyer understands the strategy: Try at all costs to keep dangerous evidence out of hostile hands. If you can't do that, get it excluded from trial. And if that fails, force the other side to use up their money and throw in their cards. Unfortunately, in the last few years a rash of cases, statutes, and rules has made it easier for adversaries of the poor to silence them by muzzling their lawyers. The "silencing doctrines" challenge federal and state support for public-interest lawyering, as well as law-school clinics and fee awards in civil rights cases. Most of the doctrines are the work of judicial and congressional conservatives, and several originated in lawsuits brought by a public-interest law firm on the right. But it would be just as wrong if the doctrines came from the left to silence the right. The problem is the same: You can't have an adversary system with only one adversary.

The single biggest source of funding for lawyers who handle civil cases for the poor is the federally funded Legal Services Corporation, which has an annual budget of $310 million. In 1998, the LSC funded 3,590 attorneys, at an average salary below $40,000. The numbers are low—one underpaid lawyer for about 13,000 eligible clients—but that hasn't shielded the LSC from decades of political assault. When Congress created the LSC in 1974, it prohibited the corporation's lawyers from using federal funds on volatile issues like abortion, school desegregation, and the draft. Those restrictions kept LSC-funded lawyers out of the biggest controversies of the day—not necessarily a bad thing—and allowed them to work on any prohibited issue provided they didn't use federal funds. As long as there were other funds or other advocates available, the restrictions weren't really a silencing doctrine.

Then, in 1996, Congress enacted a tougher set of restrictions. Not only did lawmakers prohibit LSC lawyers from taking on certain issues, they also forbade the lawyers from representing entire groups of clients. These include many immigrants, including some who are documented, and all prisoners, including those not convicted of a crime. The restrictions also prohibit LSC-funded lawyers from taking familiar steps and making arguments that lawyers routinely make. LSC lawyers are generally not allowed to influence rulemaking by administrative agencies or lawmaking by legislatures. They can't participate in class-action suits, often the best way to bring a case for more than one client. They can't ask defendants to pay their attorney's fees under statutes that allow for that, or in any way challenge welfare reform, or defend anyone charged with a drug offense in an eviction proceeding from public housing.

Finally, crucially, Congress prevented LSC lawyers from using any non-federal funds to support prohibited activities. This requirement had a drastic effect. It forced legal-services providers to split into separate organizations with separate offices, with one office receiving federal funds and abiding by the restrictions, and the other maintaining the freedom to take all kinds of cases at the cost of its LSC grant. Some organizations had to purchase duplicate computer systems and hire extra staff. In some places there is not enough money for two offices, so clients with the "wrong" cases have to travel hundreds of miles to find counsel. In hundreds of cases, LSC-funded lawyers had to withdraw because the restrictions did not allow them to continue representing their clients.

The restrictions are silencing doctrines. When they went into effect, David Udell, then an LSC-funded lawyer in New York, was monitoring an already settled class-action suit against the Social Security Administration. Udell informed the court that the defendant had violated the settlement. Even though the underlying case had been resolved years earlier, LSC declared Udell's letter "adversarial" and ordered him off the case, threatening that otherwise it would stop funding all legal-services lawyers in New York City. Udell made LSC back down, but it still docked his pay. In another case, LSC ordered Udell out but the judge ordered him back in. To keep his LSC funding, Udell had to work on this one for free on his own time. While LSC comes off as the heavy in this story, it was only following Congress's orders.

Udell's dilemma raises a question about whether the LSC restrictions compel legal-services lawyers to practice law unethically. The Model Rules of Professional Conduct, the bar's guide for ethical lawyering, forbid lawyers from letting a non-client who pays them interfere with their professional judgment on the client's behalf. Suppose a legal-aid lawyer wants to go after a revolving-credit scam that has bilked 1,000 poor people out of $20 each. She can't very well litigate 1,000 individual cases, so her professional judgment screams "Class action!"—but if she wants LSC to keep paying her, she can't file one. Or suppose the lawyer wants to use as negotiating leverage against the defendant the prospect of winning from him money for damages, plus attorney's fees provided by statute. The restrictions require legal-services lawyers to forgo that leverage, which may hurt the lawyer's effectiveness as well as her office's finances. In either of these cases, the lawyer has to offer the client severely compromised representation or no representation at all: Take it or leave it. The ethics rules are supposed to protect clients from choices like that.

The legal-services lawyer who wants to go after the revolving-credit scam, for example, can abide by the Model Rules only if she turns down the case. The perverse result is that the more poor people a legal problem affects, the less likely they are to find a lawyer to represent them. Given the scarcity of public-interest lawyers, the overwhelming presumption must be that the vast majority of the cases that legal-services lawyers have to turn down will never be brought. Because of the LSC restrictions, groups of poor people with pressing legal problems will never be heard in the legal system.

Yet instead of pointing out that the 1996 restrictions compromised the ideals of the legal profession, the ABA's ethics committee wrote an opinion saying that an LSC lawyer could ethically drop clients and give potential problem cases a wide berth. Both the bar and the legal-services establishment kept quiet because they feared that if they fought the restrictions, Congress (dominated at the time by conservatives) would retaliate by abolishing the LSC. It wasn't the ethics committee's proudest moment. By preventing lawyers from representing whole classes of clients, regardless of whether they have valid or important claims, the LSC restrictions not only function as a silencing doctrine, they violate the historic goals of the legal profession.

The ABA's Model Code of Professional Responsibility, the predecessor to the Model Rules, says that the bar's objective is "to make legal services fully available." It warns each lawyer against turning down cases, even those "which may be unattractive both to him and the bar generally." And it continues: "Regardless of his personal feelings, a lawyer should not decline representation because a client or a cause is unpopular or community reaction is adverse." The ABA ethics committee said none of this. Apparently, it decided that capitulation was the better part of valor.

When advocates for the poor challenged the LSC restrictions in court, they made little headway. The Ninth Circuit Court of Appeals, which includes nine western states, rejected claims that the restrictions were unconstitutional. The Second Circuit, which includes part of the Northeast, also rejected a suit, except for the portion of it that challenged the ban on making legal arguments against welfare reforms. The court held—and the Supreme Court agreed—that this restriction prevented certain viewpoints from being aired and violated the First Amendment.

But the victory affects only a relatively unimportant part of the statute. "Hear the other side"—except when the other side is a poor person who is also a prisoner or an immigrant, a member of a group of people with a particular grievance, or someone who would be adversely affected by a lawyer who follows the restrictions. In these cases, the courts said, Congress can take funding away from the poor person's lawyer.

A second silencing doctrine consists of attacks on state programs providing for Interest on Lawyers Trust Accounts. All 50 states and the District of Columbia have IOLTA programs, and half of them are mandatory. The programs generate about $100 million a year, making them the second-largest source of funds for legal-aid lawyers after the LSC. IOLTA funds come from the trust accounts lawyers must set up for their clients' money. Large amounts of interest go back to the client. But often the interest is so small that the cost of disbursing it would be greater than the amount itself. The interest used to go to the banks by default. In 1980, Congress changed the banking laws so that client money could instead be pooled in interest-bearing checking accounts, provided that all the interest went to charity. Under state IOLTA statutes, the designated charity is legal services for the poor. The idea was really clever. The clients couldn't recover the interest because the cost of getting it to them would eat it all up, and the banks had no right to the windfall. As one Texas judge quipped, IOLTA takes from the banks and gives to the poor.

Almost from the beginning, IOLTA faced challenges from disgruntled lawyers, clients, and activists who objected to the whole idea of helping legal-services lawyers, and who argued that their money was being unconstitutionally "taken," citing the Fifth Amendment, which requires the government to justly compensate citizens when it takes property from them for a public purpose. At first the "takings" challenges failed, but now they are beginning to succeed. The Washington Legal Foundation, a conservative public-interest law firm, has challenged IOLTA statutes in several states. A Texas case, Phillips v. Washington Legal Foundation, made its way to the U.S. Supreme Court, which held 5-4 in 1998 that interest on client funds belongs to the client, even if it can't be recovered. The Court then sent the case back to the lower courts to decide if IOLTA is an unconstitutional taking.

To understand why Phillips was wrong, imagine a Hans Christian Andersen-like tale about a miser to whom the fairies gave a peculiar gift: a magic penny that will turn to ashes unless the miser gives it away. If the miser tries to hoard the penny or spend it on himself—poof, a handful of ashes. But if he gives it to a person in need, the penny will never disappear. The miser can't bear to give his penny to the beggar he sees shivering in the street. He tries and tries, but his hand just won't unclench to drop the penny in the beggar's cup. The fairies whisper in his ear that the fate of his soul depends on his choice. The miser is about to give in, but suddenly recognizes that the beggar is his old rival, fallen on hard times. "Nothing for you!" he shrieks. At that moment the beggar dies, and the penny turns to ashes.

The interest from IOLTA accounts takes the form of a magic penny: It does good if it's pooled and given away, but disappears if its owner claims it. The law lets the miser hold back the penny because it is his. He has a property right in it, just as the Supreme Court says. But because of the fairies' curse, this right is the spite right, the least-used property right in the law. The spite right allows you to ruin your property to keep it out of someone else's hands, and it occasionally gets invoked when conquered people destroy their homes so that their enemies can't have them.

The Ninth Circuit recognized that the dynamics of spite were at work in the IOLTA case. The court characterized the mentality of IOLTA challengers as, "It is not so much that I want the $20, though I do, as that I don't want the [IOLTA] donees to get it, because I don't like what they do with it." What the court did not say is that spite rights are tolerated only because they are a rare special case. After all, the most common justification of private rights is that they maintain the world by giving people incentive to care for their pieces of it. The spite right actually clashes with the theory of private property. If all property could only be donated or destroyed, like the magic penny, we surely would recognize only the right to give it away because the alternative—destruction—is just what property rights discourage.

Yet Phillips upholds the spite right for IOLTA "magic-penny" interest. Chief Justice William Rehnquist argued that the Court was merely upholding the old common-law rule that interest follows principal. But it would have been easy to uphold that rule while carving out an exception for interest that the owner can't collect.

Once the Supreme Court held that interest belongs to the client even when the client can't collect it, bizarre legal questions arose for the lower courts to decide—questions like "What is it to ‘take' interest that the owner does not and cannot ‘have'?" and "What is ‘just compensation' when the owner is no worse off from having his interest ‘taken'?"

These questions are metaphysical brainteasers on a par with "How many imaginary fat men are standing in the doorway?"—they have no answer. So they invite political answers: The gut fills in the blanks, and judges reach whatever result they find congenial. When the Texas district court upheld IOLTA, it reasoned that since the owner couldn't earn interest unless his money was pooled with that of other clients, there was nothing to compensate him for. When the Fifth Circuit Court of Appeals reversed, it reasoned that an owner must be compensated for his interest, and so the interest shouldn't have gone to IOLTA. The Supreme Court's Phillips decision is to blame for the confusion. Bad law makes hard cases. The proper approach would be to deny that a spite right deserves constitutional protection. That means upholding IOLTA.

And it isn't just the rationale in the IOLTA ruling that's disturbing. The litigation also presents the spectacle of a comfortably funded public-interest law firm—the Washington Legal Foundation, with an annual budget of more than $4 million, 35 percent of which comes from corporate contributions—trying to shut out other public-interest law firms because they have different politics.

The same is true of yet another silencing doctrine. The next institution under fire is a staple of the American law school, the clinic. At present, 182 U.S. law schools offer clinics in more than 130 different subject areas, staffed by more than 1,400 instructors. Law schools spend about $250 million a year on these clinics. In return, the programs generate as much as 3 million hours each year of unpaid student legal work for needy clients.

Relatively little clinical work is controversial "cause" lawyering. Most clinics provide one-client-at-a-time, more or less routine, civil and criminal representation: Clinical students fight evictions in landlord-tenant cases, defend teens in juvenile court, and obtain protective orders for domestic violence victims. But the majority of clinical teachers probably identify as progressives. While nothing prevents conservatives from starting clinics devoted to issues they favor, for example a victims' rights clinic, that has rarely come to pass. An exception to the rule is the Economic Freedom Law Clinic at George Mason Law School, a clinic started by the Washington Legal Foundation that takes a "pro-free enterprise, limited government, and economic freedom perspective."

The most dramatic attacks on clinics target environmental-law programs, which often oppose development and lock horns with business interests. In the 1980s, the University of Oregon's environmental-law clinic came under siege from the timber industry and eventually had to move its litigators out of the law school.

Politicians and businesses have also attacked environmental-law clinics in West Virginia and Wyoming. Most recently, the University of Pittsburgh's environmental-law clinic infuriated state legislators by filing suits that delayed highway and logging projects in a national forest. In October, under pressure from the legislature, the university took back $62,559 of the clinic's annual budget of about $102,000.

The best-known effort to silence an environmental-law clinic involves Tulane Law School in New Orleans. After the Tulane clinic successfully kept a manufacturing plant out of a low-income black neighborhood known as "Cancer Alley," outraged business groups complained to the Louisiana Supreme Court. In response, the court made the student-practice rule more restrictive, making it virtually impossible for students to take on environmental-justice cases. Clinic supporters filed a federal suit against the Louisiana Supreme Court, arguing that the rule change violated academic freedom and free-speech rights. The Washington Legal Foundation and the Economic Freedom Law Clinic at George Mason weighed in on the opposing side, even though the George Mason clinic functions under student-practice requirements far less stringent than the Louisiana rule. The Fifth Circuit Court of Appeals sided with the Louisiana Supreme Court—and the narrowed student-practice rule stands. (The case is Southern Christian Leadership Conference v. Supreme Court of Louisiana.)

The Fifth Circuit reasoned that since the Louisiana Supreme Court has no obligation to permit any student to practice law, the new student-practice rule suppressed the students' right to practice law only in comparison to the rule's earlier version. Nor, the court said, did it matter whether the Louisiana Supreme Court's motivation was political and retaliatory. The new rule did not discriminate against anti-business views—it merely refused to promote those views by not letting law students into court to express them. In effect, the Fifth Circuit told the clinic students that they should be grateful that the Louisiana justices let them into court at all.

The Fifth Circuit's approach is almost willfully blind to the reality established by both custom and history. Law-school clinics aren't simply a sop to law students. For 30 years, they have been a vital part of the legal landscape, valued in every state with a clinic for the services they provide and the training they offer. Surely the 30-year history should determine the standard, not the court's power to eliminate clinics by decree. The court treats permitting students to represent clients as an act of grace; after all, it's an exception to the rule that only lawyers may practice law. But this argument seems completely upside-down. In most walks of life, it is restrictions on the market for services that call for special justification, and open access that is the preferred rule.

Why should law be different? The basic argument for restricting the practice of law to trained lawyers who have passed the bar is that this professional monopoly will protect consumers from incompetent or unethical representation. Yet no one was complaining about the competence or the ethics of the Tulane students. The students were attacked for representing the wrong causes—a purely political consideration.

As a Louisiana justice noted who dissented from the decision to narrow the student-practice rule, three powerful business associations lobbied the state supreme court to clamp down on the law students. The justices were up for re-election. But the federal district judge thought this didn't matter. In dismissing the lawsuit brought on behalf of the clinic, he wrote, "In Louisiana, where state judges are elected, one cannot claim complete surprise when political pressure somehow manifests itself within the judiciary." Even if he's right, that kind of complacent cynicism doesn't belong in a decision about whether a politically motivated rule change was discriminatory. Of course the new rule discriminated against the students because of their politics: Its point was to stop environmental challenges to business.

The last silencing doctrine comes from the U.S. Supreme Court. The Court has cut back on what lawyers call attorney's fees. In most cases, the American system is for each party in a lawsuit to pay for her own lawyer. In some kinds of cases, however, especially in the area of civil rights,

Congress has passed statutes making a defendant pay the fee of a plaintiff's lawyer if the plaintiff prevails in the case. Despite these statutes, in four decisions over the past 17 years, the Court has made it increasingly difficult for civil rights lawyers to get paid.

The latest example, from 2001, is Buckhannon v. West Virginia. In that case, the Court held 5-4 that if a plaintiff gets the relief he was seeking from a defendant before there has been a judicial decision or judicially approved settlement, then the plaintiff doesn't get attorney's fees provided by statute because he hasn't "prevailed." Before Buckhannon, some courts gave attorney's fees to the plaintiff as the prevailing party when his litigation efforts provoked the defendant to give the plaintiff what he wanted out of court. But since Buckhannon, a savvy or vindictive defendant can throw in the towel on the eve of a judgment and make the plaintiff and his lawyer eat their legal costs.

Justice Rehnquist's majority opinion offers little explanation for this result—it simply declines to extend the word "prevailing" to include gaining what you want from your lawsuit without a judge's help. But why not extend the word that far? If getting what you want through a settlement approved by a judge counts as "prevailing," why shouldn't gaining the same thing through the same lawsuit count as "prevailing" even if there's no such official settlement?

In a separate opinion defending the decision, Justice Antonin Scalia argues that requiring a judge to be involved before the plaintiff's lawyer gets paid would safeguard defendants against "phony" lawsuits, which defendants settle only to avoid bad publicity and litigation costs. But this isn't a convincing argument. Federal judges, who overwhelmingly prefer to settle cases rather than try them, never reject settlements merely because the defendant settled to avoid bad publicity or attorney's fees. Most judges think those are great reasons to settle.

David Vladeck, the director of a public-interest law firm called Public Citizen Litigation Group, calls Buckhannon "disastrous." He explains, "True example: We've been litigating fiercely a longstanding dispute with [an agency] ... We have just received a letter—after years of litigation, mind you—saying, in essence, 'You're right, we're wrong, we will change our policy to address your concerns.' " Under Buckhannon, the agency's capitulation before a judicial order was entered means that Vladeck's firm has no hope of getting paid, even though it has done about $40,000 worth of work—a significant part of its annual budget. "We see this kind of pattern: lengthy litigation, and at some point, capitulation, time and again." Vladeck continues, "Now we have no chance" to get fees in these cases. "I can't tell you how dispiriting this is for us."

Stuart Hampshire, the justice-is-conflict philosopher, is far from naïve about politics. He is a staunch defender of Machiavelli, who believed that people who aren't willing to get their hands dirty should steer clear of politics. Hampshire's point is that people who are willing to get their hands dirty still have a duty to hear the other side. Otherwise, they can never know for sure that if they decide to be ruthless on behalf of a cause, the cause is worth the harsh tactics. Nor will they understand the true extent of the damage they do to the other side.

Something else is at stake here, too. Because many progressive public-interest lawyers win so few cases and lose so many, they fear that all their voices accomplish is the creation of an historical record of rejected arguments on behalf of vanquished causes. But the alternative to making an historical record is not making a record, so that the cause the lawyers and their clients once supported disappears without a trace. "Hear the other side" is a principle of justice because in the absence of dissenting voices, a kind of smug consensus—a lie, really—takes their place, and the adversary system becomes little more than a field of lies. Even enemies of progressive public-interest lawyers should want something more truthful.

David Luban is Frederick J. Haas Professor of Law and Philosophy at Georgetown University Law Center. His books include Legal Modernism and Lawyers and Justice: An Ethical Study.

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