I feel like the only Darwinian on a panel debating whether dinosaurs were on Noah’s Ark. And like that Darwinian, I’d like to challenge some of the premises in the discussion we’re having about guaranteeing taxpayer funding of civil litigation.

We’ve heard that lawyers make a big difference to the results. I question the interpretation of those statistics. Pro bono and legal aid societies have scarce resources, so they’re going to focus those resources on the better cases in the intake, and let the clearly meritless cases slide. And judges know this. An immigration judge has the tough job of distinguishing amongst the hundreds of people claiming to be eligible for asylum, and the unfortunate reality is that a lot of them are lying. When the scarce resources are used to hire an attorney that signals to the judge that the litigant thought the claim was worth spending money on, or that the pro bono attorney thought the claim was meritorious. I did a lot of pro bono asylum work when I was in private practice (and every time, it was on behalf of an immigrant who had hired an attorney that had botched the asylum application), and I remember one case I had in front of an immigration judge notorious for rejecting asylum applications. I won that case, but I don’t think I brought anything special to it through my very first direct examination or court appearance as a junior associate; but the fact that a big law firm was standing behind the immigrant did give a strong signal to the judge that this wasn’t a run-of-the-mill case of someone claiming to be oppressed to get a green card. A lot of the anecdotes we’ve heard involved represented parties and narrow immigration laws, so adding taxpayer funding to the equation isn’t going to help the asylum-seekers unless we change the immigration laws.

And if lawyers do make a big difference to the results, what is the message we should take from this?  If we are to find that baseball players who take steroids do better than other baseball players, the answer isn’t to give steroids to everyone.  Let’s question the legal rules and procedures that turn a search for the truth into a gameshow that rewards the best attorney performance.

Let’s start by asking what we are trying to accomplish here. If the goal is “How do we get taxpayers to spend more money on lawyers?”, then the ABA Resolution 112A will certainly accomplish that. It’s understandable that lawyers might want more taxpayer money, and while most everyone in this room is or is about to be a lawyer, you’d have to admit as political mottos go it’s not a good bumper sticker to get laypeople on your side.

So we can pretty it up and say it’s about “increasing access to justice” or “helping the poor.” Then we get to the real problem, which is that the ABA Resolution 112A to guarantee legal counsel in civil cases at public expense will decrease access to justice and hurt the poor, as well as the middle class.

Criminal Gideon shows why a civil version will have problems. Let’s give credit to the public defenders’ office for the often thankless task they do, but let’s also agree that the record of court-appointed defense counsel has been one of triage at best. And that is triage often executed for political ends rather than the good of their clients. Take the case of the Atlanta public defenders, where the public defenders have blown a fifth of their budget on a single case, that of the plainly guilty Brian Nichols, who murdered a judge and a court reporter and two others. Why? Political maneuvering against the democratically-created death penalty. On the civil side, Legal Services Corporation taxpayer funding has gone for first-class airfare and limousine service and $14 cookies. GAO and inspector general reports have found a lot of waste. Before Congress stepped in in the 1990s, LSC would focus its budget on political causes and regulation through litigation rather than providing legal services to the poor.

Meanwhile, as any economist would tell you, if you lower the price of something, you get more of it. Because it’s effectively free to file a meritless criminal appeal, the court system is inundated with them: 85% of federal criminal appeals result in affirmances, and the vast majority of the remands reflect recent Supreme Court confusion over sentencing law rather than questions of guilt or innocence. All that has been accomplished is a vast increase in expense, not just in defense costs, but in the cost of prosecution, and a clogged justice system; worse, there’s no evidence of increased accuracy, and every reason to think that the cases of real innocents are getting lost in the haystack of bogus appeals. In the immigration context, if everyone gets an attorney, someone with a strong asylum case doesn’t have an easy way to signal she’s not one of the liars.

We can expect a similar flood of cases if legal access is costless to both the client and the attorney. A lot of big-firm pro bono work is self-serving or wasted effort. There is little evidence that poor people with meritorious civil cases could not be served by the current legal system of legal aid societies and pro bono work by attorneys. Let’s use the resources we have before we ask the taxpayers to kick in. In the Caliente Cab case, a woman who looked masculine was incorrectly thrown out of a restaurant when the bouncer mistook her for a man in the ladies’ room; okay, she has a complaint, the restaurant offered her a free meal, but we had three lawyers from a big law firm bringing a lawsuit over this pro bono and shaking down a small business for $10,000. That gets headlines, but it’s not legal service for the public good to extent there are poor people who need lawyers who are busy spending huge resources on a bathroom spat. On the other hand, there is evidence that courts are bending over backwards to reward pro se civil litigants: as a front-page article in the Wall Street Journal recently documented, a pro se litigant was able to use meritless litigation to stall foreclosure and live rent-free in his home for over eleven years.

If a dispute over “shelter” entitles one to a free attorney on the government’s dime, that makes it much easier for people to intentionally refuse to pay rent, or fight evictions when they threaten other tenants: the government will back them up. That will have costs far beyond simply paying for the plaintiffs’ attorneys. Landlords and mortgage-holders will have to pay for more attorneys, and raise rents and costs to their honest customers. Meanwhile, as the demand for attorneys on both sides of the v increases, this is good for lawyers, but it means that everyone will have to pay more to obtain legal counsel. Middle-class people with meritorious cases will find it harder to find legal counsel; meanwhile, they will face additional penalties for working hard and playing by the rules, because there will be yet another government benefit reserved to those who haven’t achieved middle-class status. Meanwhile, the honest poor will be worse off as a group: they will trade higher rents and higher taxes for the right to legal services that will not help them; meanwhile access to justice is reduced, because middle-class people with meritorious cases will find it harder to find legal counsel. And, like in the criminal context, parties with meritorious cases will find it harder to signal that to overwhelmed judges that they are different from the overwhelming majority of meritless cases that the courts see day to day.

And if the right to civil counsel is of constitutional import, the problem of a litigation explosion is only exacerbated. Now every loss in a civil court can be collaterally attacked as a constitutional violation because of lack of adequate counsel, and the habeas disaster we face in criminal courts will be repeated here.

Let’s address the claim that other nations provide free legal services. As George Liebmann notes, these foreign countries do not have American legal institutions: they limit contingent fee litigation; they have mandatory fee-shifting against unsuccessful plaintiffs; heavier reliance on lay magistrates; discretionary powers in courts to deny rights of suit or legal aid certificates; severe limits on damages; highly limited use of juries in civil cases; the reservation to public authorities of the right to sue for employment discrimination, environmental impairment or antitrust violation; and much smaller court systems and more elaborated systems of administrative law. None of these countries has the system that the ABA is proposing here for taxpayer funding; it’s not an apples-to-apples comparison.

If the goal is to improve access to civil justice, it seems strange that we’re looking first to the taxpayers, and not to the rules within our own legal system that restrict access to justice. If we were to move to a loser-pays rule, private attorneys would happily take meritorious cases no matter what the income level of the plaintiff or defendant; moreover, we would increase access to civil justice for defendants who are currently forced to settle extortionate meritless cases because they cannot afford the overwhelming costs of defense (costs that would only be exacerbated by the ABA Resolution). I hate to bring up Pearson’s pants suit, but the only reason he walked away with zero was because he wasn’t willing to accept a $12,000 payoff to go away–the immigrant small business instead had to pay their lawyers much more to defend themselves.We can end unjust laws against the “unauthorized practice of law” that reserve to a cartel of attorneys basic legal work like simple wills and uncontested divorces that can be performed by trained paralegals. We can end wasteful requirements of a third year in law school and bar examinations or CLE requirements that do nothing to prepare future lawyers; we can similarly strip the ABA of its cartelizing function of “accrediting” law schools by insisting on expensive features that do nothing but increase barriers to entry to the legal profession and legal education. Let’s have sensible tort reform so that so much of the nation’s economy isn’t subject to perpetual litigation, freeing up lawyers to help every-day people when they really need it.

If the goal is to help the poor or to help immigrants, then let’s help the poor or immigrants directly rather than through the wasteful process of the legal system, where well over half of the money spent will end up going to lawyers on both sides rather than the poor or immigrants.

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A couple of notes:

1) The talk was mistakenly interpreted as an attack on criminal Gideon itself. I agree that Gideon was correctly decided (the Supreme Court’s previous test was unworkable) but the constitutional and normative concerns motivating Gideon–better n guilty men go free than one innocent man go to jail–are not applicable.

2) The moderator asked me my position on government-provided counsel in cases where the government seeks to terminate parental rights. I noted that this was attacking the wrong problem: if we’re concerned that poor families are having their children unjustly taken away by the government, the solution is to stop Child Protective Services from taking children away, and that giving the parents lawyers is a poor second-best solution.

Filed under: asylum law, civil gideon, pro bono, Ted Frank