TorteDeForm

Kia Franklin

Times are Tough… Time for Civil Gideon

I've seen some pretty troubling figures about legal aid, and it's no wonder. Legal aid is completely stretched thin as more people find themselves in the middle of desperate civil legal battles due to the recession, while simultaneously legal aid organizations across the country are finding their funding slashed due to the downturn.

I think this is perhaps the starkest such statistic I've encountered so far:

[A]lthough 50 percent of New Mexicans qualify for Legal Aid services based on income, the entire state has only 43 attorneys working for Legal Aid.

“The needs of the poor in New Mexico are great,” Kuffer said... “And although Legal Aid would like to help them all, we can’t.”

Such sobering blog content for a Friday evening, isn't it? Especially with a long weekend ahead of us. But not thinking about it surely won't make it go away, and won't help the people personally affected by this reality. In fact, consider it a blessing if you are able to enjoy some nice, simple moments this holiday weekend without worrying about how an upcoming legal matter will affect your life. Appreciate it and do something fun with loved ones this weekend, knowing that, unfortunately, there will still be plenty of work to do in the field of civil justice after the holiday is over.

Here's the full article. It's actually pretty enlightening about the extent of legal needs out there right now due to the financial downturn. It's also helpful to keep this information in mind as we encounter more arguments against the provision of legal aid to the poor, based, ironically, on the argument that we don't have enough money for it. (By the way, the truth is that when provided upfront, legal aid can actually help cities and state governments avoid higher direct spending. From the Brennan Center: "Despite the cost of providing lawyers for tenants facing eviction, it will save the city money almost immediately... HRA's calculations show that the city will avert four dollars in costs associated with homelessness for every dollar that it spends on eviction prevention.")

Kia Franklin: Author Bio | Other Posts
Posted at 3:05 PM, May 22, 2009 in Civil Gideon | In the News
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Comments

The lawyer will help delay eviction of the tenant not paying rent, the tenant having loud parties all night, the tenant using the apartment as a crack house. Is that how the lawyer can save the city money?

Posted by: Supremacy Claus | May 23, 2009 5:01 AM

Of the many crackpot ideas advanced by this site, the so-called "Civil Gideon" is the worst. Any meritorious case, and thousands of cases with no merit whatsoever can find an ambulance-chaser to take the case for themand see who they can shake down for the costs of defense or other nuisance value

All Civil Gideon will accomplish is to ensure full employment for the legal profession. I have no problem with the ideals of Gideon Wainwright (and related cases) when applied to situiations where individuals face incarceration (and worse) but the leap from there to applying it in civil cases is a leap akin to trying to jump the Grand Canyon on a motorcycle. It cannot be justified on a moral, ethical or legal basis

By the way, Supremacy Claus is correct, if we are ever stupid enough to go with some form of Civil Gideon, it will likely mostly be used by scoundrels , deadbeats and malingerers. Or are you advocating Civil Gideon for use of honest citizens resisting eminant domain proceedings?

Posted by: Avenger | May 23, 2009 7:45 AM

Here is your answer for "Civil Gideon". Since we already have a "Medical Gideon" as mandated by Federal Law, lets apply it to Attorneys.

ENRALA ACT (as obtained from WhiteCoat)

WHEREFORE, there is a disparity in the ability of the citizens in this country to obtain legal representation, and

WHEREFORE, every citizen in this country has a right to legal representation, and

WHEREFORE, a federal law guaranteeing access to legal representation in this country will advance the legal interests of the underserved clients,

THEREFORE, BE IT RESOLVED THAT there shall be a new law enacted in this country titled “ELRALA” - the Emergency Legal Representation and Active Litigation Act.

The substance of this Act shall be as follows:

1. Any person that “comes to a law office” must receive a legal screening exam (”LSE”).
2. The LSE must be performed in a manner that is reasonably calculated to detect any emergency legal condition.
3. If an emergency legal condition is detected, the law office must stabilize that emergency legal condition within the best of its abilities. Such stabilizing measures shall include, but are not limited to:
a. Evaluation of the client’s complaint by a qualified legal provider
b. Retention of specific experts when the law office is unable to fully evaluate the validity of the client’s complaint
c. Initiation and maintenance of litigation until the client’s emergency legal condition has been stabilized
4. If the law office does not have the capability to stabilize the client’s emergency legal condition, the law office must make an “appropriate” transfer of the client to a law office that does have the capability to stabilize the client’s emergency legal condition.
5. Law offices providing specialized legal services shall not refuse to accept an appropriate transfer of a client who requires such specialized capabilities if the law office has the capacity to provide such services to the client.
6. The LSE must be carried out in an equal and nondiscriminatory fashion regardless of the client’s ability to pay.
7. Law offices must not engage in any actions that could delay the LSE, and may not inquire about a client’s ability to pay prior to providing the LSE.
8. Law offices may not request a “retainer” or any other form of advance payment prior to the stabilization of the client’s emergency legal condition.
9. Law offices shall assure that the legal care provided best meets the legal needs of the communities in which the law offices are located.
10. Legal specialists may arrange “coverage” for multiple law offices in smaller communities provided that the services best meet the legal needs for each community.
11. Law offices shall keep a “call roster” of attorneys specialized in each branch of law that will be available each day to provide specialty legal services to clients requiring such services.

Notes:
ELRALA shall only apply to “participating law offices”. A law office that uses any services provided in a court house shall be considered a “participating law office” for purposes of this Act.
A law office shall be considered to have fulfilled its duties under ELRALA once the client’s emergency legal condition has been stabilized.
For the purposes of this Act, the term “emergency legal condition” shall mean any condition or situation that presents a significant threat to any of a client’s legal rights.
For the purposes of this Act, the term “stabilization” shall mean that there is no longer a significant threat to a client’s legal rights.
Violations of ELRALA will result in a statutory fine of not more than $50,000 and, in repeated or flagrant cases, loss of license to practice law or loss of privilege to use the court system.

———————————————–

Up next:

The Emergency Hunger Treatment and Active Thirst Act - “EHTATA” - requiring all restaurants or people owning a stove to provide emergency hunger treatment to anyone that comes to their abodes or places of business complaining of being hungry and/or thirsty.

The Emergency Shelter Provision and Active Housing Act - “ESPAHA” - requiring all hotels and homeowners to provide emergency shelter for anyone coming to their abodes or places of business complaining of not having a place to live.

Posted by: throckmorton | May 23, 2009 9:59 AM

Excellent legislative proposal, Dr. T. Count on my financial and personal support to get it enacted.

Posted by: Supremacy Claus | May 24, 2009 3:54 PM

Dr. T: I took the liberty of pasting the link to your excellent proposal here:

http://www.litigationandtrial.com/2009/04/articles/management/brain-food/a-dialogue-with-an-emergency-physician-about-health-care-reform/

Comments requires moderation. I will let you know if this lawyer supports it.

Posted by: Supremacy Claus | May 24, 2009 10:27 PM

I posted WhiteCoats "ENRALA ACT" as it highlights the double standard that exists in the "tort industry". It is alright to determine by law that the healthcare industry must assume the responsibility of care the indigent and anyone else who walks into a hospital ER, yet the "trial industry" is required to do nothing of the sort. Lets not discriminate between professions, let the trial attorneys face the same pressures as physicians. Further, let the determination of malpractice be the same for physicians and attorneys. S.C. is the champion of the battle against the self dealt immunity of trial attorneys. After all, if our tort system is so good, why does it differentiate between the professions? Why is it ok to mandate health care but not to mandate legal care?

Posted by: throckmorton | May 25, 2009 5:25 PM

I posted your comment link. He tried to rebut your proposal. I went back to rebut his rebuttal, they were gone. I have asked him what happened.

Basically, he said, the rule does not apply to private doctors' offices as you want it to apply to lawyers' offices. He also welcomed the start of a $trillion funding program for legal services as doctors have in Medicare and Medicaid.

I was going to say, that made no difference. The gov was still stealing services. The location did not matter. As to the $trillion, it would be OK if docs ever got paid, and if they got paid more than the cost of the services and the collection. I did not say that because he yanked the comments.

Posted by: Supremacy Claus | May 25, 2009 6:22 PM

Posted by: Supremacy Claus | May 25, 2009 8:31 PM

avenger,

Any meritorious case, and thousands of cases with no merit whatsoever can find an ambulance-chaser to take the case for themand see who they can shake down for the costs of defense or other nuisance value

false. you are basically saying you don't agree with the facts, which are that every day, legal aid organizations and private practitioners have to turn away clients w/ legitimate cases because they don't have the capacity to meet their need. you're just disagreeing w/ an objective truth. i don't have anything more to say about that, because there's nothing left to be said.

throckmorton,

Civil Gideon is just a practical version of your ELRALA proposal. this sort of "triage" work already takes place at legal aid, but legal aid is severely underfunded. so Civil Gideon asks us to address the funding question, which is at the heart of the matter. who pays for the emergency medical services? similarly, we need to ask how we can pay for emergency legal services--and to do that, we should keep in mind how providing such services would actually ultimately save money.

Posted by: Kia | May 26, 2009 10:13 AM

Kia is misleading. The overwhelming majority of cases are weak and frivolous. They are filed to win the lawsuit lottery by intimidating defense costs. E-discovery, depositions, and other pre-trial attacks on innocent defendants make settlement the cheapest alternative.

The defendant has an affirmative duty to protect clinical care from these vile land pirates. It is a moral duty to seek the personal destruction and the professional destruction of the plaintiff and the plaintiff lawyer. In order to do that one must hire one's own legal malpractice lawyer to terrorize the inadequate insurance defense lawyer. The latter wants nothing done to deter the mortal enemy of clinical care. If deterred or driven out, the defense bad loses its insurance jobs.

Posted by: Supremacy Claus | May 26, 2009 10:28 AM

Yup, cuz the "lawsuit lottery" is a great way to characterize winning an eviction or foreclosure case, getting custody of your child, getting to hold on to disability benefits, etc.

People with serious legal matters affecting their very basic human needs don't have these lucrative, attractive cases that lawyers are just flocking to. So it's dishonest and misleading to throw out terms like "lawsuit lottery" in the context of this discussion. It has nothing to do with the discussion.

Maybe I should just start yelling out random things in the middle of these debates, and see what happens.

Posted by: Kia | May 26, 2009 2:56 PM

Kia: Poverty is a lifestyle choice. You want to subsidize it with obstructionist representation that further transfers hard earned money from the productive to the parasitic, full time Roman Orgy, immoral horrible person.

Posted by: Supremacy Claus | May 26, 2009 10:04 PM

Kia: You are right, legal aid is underfunded. My point is that that there is no funding for EMTALA mandated care for those who can not or do not wish to pay. That burden for care falls directly on the healthcare industry. Why doesnt the legal industry face the same burden. I do not get paid for taking care of amateur unregulated pharmaceutical distributors who have disagreements about the retail and wholesale price of their products. They came or were brought to the hospital and I have to treat them. Why cant anyone go to a courthouse and by law have their issue addressed by an attorney on call regardless of their ability to pay. It is all about economics. This is why "Civil Gideon" will no where. Medical Gideon is an unfunded mandate. Why is there not "Legal Gideon:? The Trail Lawyer industry has fought it. They do not want an unfunded mandate. IT is Aways About the Money!

Posted by: throckmorton | May 27, 2009 8:28 AM

SC: to be clear, you are saying that poor people are parasites and horrible people? I just want to confirm that I have no basis for debating these issues with you since you just spew out blanket classist statements.

Throckmorton: This is very interesting. I hear you on your concern w/ an unfunded mandate. And I can agree that the debate over Civil Gideon could be divided into two camps within the legal profession (although those outside the profession also play a big role in the debate). The contingent of the "legal industry," as you say, that is fighting against civil gideon, probably consists of people solely in the profession for the profit motive. On the other side is an energetic and mobilized group of lawyers (a diverse group too, consisting of big corporate firm types, plaintiffs lawyers, legal aid folks, and others) who believe providing this service to be a very important aspect of upholding people's basic legal rights.

I find the idea of compelled pro bono, for lack of a better phrase, very interesting. I wouldn't oppose the idea that in order to practice, you have to do so much pro bono per year, or something of that nature. But I think even better would be to provide funding, from government resources, to pay willing and eager advocates to provide quality legal services so that people in need of this help aren't receiving sub-par counsel. And it should come from the government because it's either pay for it up front or let the government pick up the pieces from the wasteful and unjust results of mishandled legal matters related to basic human needs. The example that constantly comes to mind for me is that of legal services related to housing (foreclosures and evictions). The money the govt pays for services such as emergency shelter, policing abandoned homes, paying for medical care from illnesses stemming from lack of shelter, etc., could be saved by spending just a little bit of money in comparison to provide people with a lawyer to help them defend legitimate claims, and even process unmerited claims much more quickly so that it costs less to get those through.

Thanks for comments.

Posted by: Kia | May 27, 2009 5:03 PM