Article: Max Raskin, The Raisins of Wrath: The Constitutionality of Interest on Lawyers’ Trust Accounts Following Horne v. USDA, 10 NYU J. L. & Liberty 857 (2016).
Interest on lawyers’ trust accounts (IOLTA) are programs that require lawyers to remit their some of their clients’ interest to the state. This money is used to fund legal aid programs. The Supreme Court, in a five-to-four 2003 decision in Brown v. Legal Foundation of Washington, upheld such a program against a Fifth Amendment takings challenge. This note argues that in light of subsequent Supreme Court jurisprudence, the Court’s reasoning in Brown is no longer tenable. The culmination of the post-Brown jurisprudence is Horne v. United States Department of Agriculture. Although the accounts are creations of the state, the benefits that flow from them cannot be unconstitutionally conditioned. Because no linkage can be drawn between providing free legal aid and the provision of IOLTA accounts, the interest remission requirement is unconstitutional.
Article: Kathryn A. Sabbeth, Housing Defense as the New Gideon, 43 Harv. J. L. & Gender (forthcoming).
New York City is poised to become the first jurisdiction in the United States to guarantee a right to counsel for poor people at risk of losing their homes. Although millions of Americans are evicted every year, until recently, scholars and policymakers largely ignored the eviction phenomenon. New research demonstrates the frequency of eviction and the breadth of its economic and social impacts on individuals, their families, and society at large. Relying on studies showing that housing defense lawyers decrease eviction rates and promote positive social outcomes, NYC legislators concluded that a right to housing defense counsel would be both morally right and cost-effective. They introduced Intro 214-A to establish such a right and, in February 2017, the NYC mayor announced that his administration will provide the funds the bill needs to move forward. This Article is the first to analyze this ground-breaking legislation.
The right to appointment of criminal defense counsel recognized in Gideon v. Wainwright grew out of the Supreme Court’s response to the Civil Rights Movement. Using NYC’s housing defense bill as a case study, this Article identifies three ways in which the civil right to counsel has the potential to build on the Gideon model and expand it for today. First, in targeting the secondary effects of the eviction phenomenon, the NYC legislature moves beyond procedure to promote substantive outcomes. Second, its focus on housing defense recognizes a set of concerns that disproportionately impact Black women, thus building on the racial equality aims underlying Gideon and adding a move toward gender equality. Third, whereas the criminal defense model defends individuals against state power, the new bill applies to tenants of public and private landlords, thus checking abuses of private power.
The Article also addresses the dynamics of defensive lawyering, a feature of both the old and the new models of appointment of counsel. Defensive lawyering suffers from systemic limitations and fails to challenge social problems that could be addressed through affirmative suits—such as discrimination, harassment, and unsafe conditions. The availability of counterclaims in civil litigation, however, makes the civil defensive position more flexible than its criminal cousin, and may overcome some of these limits. The Article concludes that the new right to counsel holds significant promise.
News Article: Bryce Covert, Trump wants to cut off poor people’s legal lifeline, Think Progress (Apr. 6, 2017).
In honor of National Online Pro Bono Conversation, I am linking to an older article if you haven’t already read it: Martha F. Davis, Access and Justice: The Transformative Potential of Pro Bono Work, 73 Fordham L. Rev. 903 (2004).
It is National Pro Bono Celebration Week so I thought I would write about law school pro bono pledges and student volunteering. The AALS has published: “Handbook on Law School Pro Bono Programs
” (June 2001), but I am not aware of studies that compare pro bono hours pre vs. post pro bono pledge programs.
Getting students to do volunteer work as part of a law school class can add a lot to the classroom discussions as students have experiences they can share with their peers (though when you are getting course credit, the label “pro bono” may be questionable). Nevertheless, it seems that professors can play an important role getting students to volunteer. One problem I ran into — or rather my wife ran into — was that some schools (hers was a non-law school) require students volunteer as part of their degree programs for course credit but then, and this is the issue, charge the students as if they were actually taking a class. Since at most such volunteer activity involves a slight administrative procedure for the school’s registrar, it seems unfair and even wrong to add to student debt or charges the full cost of a regular class. (My wife was covered by a spousal tuition remission program, but other students are not so lucky.)
If we think getting students to volunteer and developing in them a “pro bono” habit is a good thing, it would be great if schools removed as many financial and structural barriers as they can.
-Thanks to Kate Bladow at technola blog (http://www.techno.la
) for the heads up about this week. Check out technola blog for more pro bono posts.
Fordham Law Review has published a symposium on “The Economic Downturn and the Legal Profession.” Many of the articles are of interest, but below are two in particular of note for this blog:
LARGE LAW FIRMS AND THE PUBLIC INTEREST: PROVISION OF PRO BONO SERVICES BY LARGE LAW FIRMS
MANAGING PRO BONO: DOING WELL BY DOING BETTER
Scott L. Cummings & Deborah L. Rhode
THE PARADOXES OF PRO BONO