How to write a declaration

Declarations provide the factual basis for claims made in memoranda of points and authorities, briefs, and writs. (I.e., every statement of fact in a brief must be properly supported with a citation to a declaration.) Here’s how to write a really good declaration:

First, write the declaration in the declarant’s own voice, using her own language, from her own perspective.

Second, tell a good story. The declaration should be a narrative, and it should be comprehensive with regards to the incidents it relates.

Finally, follow the rules of evidence. Everything in a declaration must be admissible as if it were testimony in court. There must be foundation (how the witness knows what she knows) and there must not be inadmissible hearsay. Show personal knowledge for every claim in the declaration.

For example, do not say, “I applied for General Relief last week but I can’t get it for six more weeks.” Instead, say,

I went to the County Welfare Department office on Lincoln Avenue on June 4, 2012. I remember because it was a Monday, and I had spent the weekend sleeping outside. I spoke with Ms. Jones. I told her I am homeless. She gave me food stamps that day. She told me I would have to come back for an appointment in five weeks to discuss my General Relief application. I told her I need help now and asked if I could come in sooner. She said, “No exceptions.”

Conclusions and opinions (“they hate poor people”) without foundation are improper; impressions (“I felt discouraged”) are fine. Avoid the passive voice (e.g., “documents were received”). Use of the passive voice is a tip-off that the speaker lacks personal knowledge and is relying on hearsay.

Source: “Practice Tip: Drafting the Winning Declaration,” Western Center on Law & Poverty.

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Innovative Lawyer Profile: Chris Wimmer

Chris Wimmer graduated from Columbia Law School in 2005 and opened his own practice, Emergent Legal, in 2013. I spoke to him in March 2014.

“A good lawyer has to have a genuine desire to relate to his clients in order to advance their interests.  He has to be genuinely interested in understanding who they are and what motivates them.”

Tell me about the path that led you to start your own legal practice.

I went to law school to be a human rights lawyer.  But I had a daughter not long after I graduated from law school, and I had to think about how to support a family. So after I finished my clerkship with Judge Jack B. Weinstein in the U.S. District Court for the Eastern District of New York, I went to work in commercial litigation and white collar disputes, first at Boies, Schiller & Flexner LLP and Friedman Kaplan Seiler & Adelman LLP in New York, and then at Brune & Richard LLP and Taylor & Company Law Offices LLP in San Francisco.

Did you learn anything at these previous jobs that has helped you strike out on your own?

Every firm taught me something important.  Boies Schiller was my trial by fire—they gave me opportunities out of the gate that I would never have seen anywhere else.  Friedman Kaplan showed me it was possible to manage high-stakes cases without running your attorneys into the ground.  Brune & Richard exposed me to practice in courts all over the country and in widely divergent industries.  Taylor & Company gave me a very personal, hands-on model for handling clients and cases from the first meeting through resolution. 

*****

“I saw over the years that there are a lot of good cases that don’t get pursued….”

Who are your target clients at Emergent Legal?

First, Emergent handles traditional commercial litigation for small to midsize businesses, the kind of business that has 150 or fewer employees and is probably not publicly traded.  I’ve targeted this segment in part for practical reasons – general counsel at larger publicly traded companies tend to avoid hiring small new firms – but also out of personal preference. I like the human dynamic in dispute resolution, and if a case is too big, the individual personalities become more obscure. Representing smaller entities makes it easier to understand the human relationships involved in a dispute and to use these relationships to reach a resolution.

Second, Emergent handles business contingency litigation. Few business lawyers do contingency work because it is expensive and risky. But I do it when I think a case has merit and value because if a client needs a contingency fee arrangement, it often means she is being taken advantage of simply because she doesn’t have a lot of money. It kills me to see people like that left out in the cold. I love being a plaintiff’s attorney in these cases. My background working on the defense side for large companies gives me the experience to move quickly on these kinds of cases. It also appears to be the best opportunity to represent early stage companies in litigation, because these companies generally lack the money to fund a lawsuit.

Some cases are so small that it doesn’t even make sense to take them on contingency. For example, even in cases where $70,000 to $100,000 is at stake, the damages are too low to justify the cost of litigation. I’m trying to develop new technologies to make it easier to take on these low-damage cases. Not just in the model of Rocket Lawyer, which helps you find low-cost legal assistance, but rather to find a way to package the highest level of practice in a way that makes it accessible to more people.

I saw over the years that there are a lot of good cases that don’t get pursued, so that’s the gap I’m trying to fill.

In addition, I like to help artists with any type of legal need they may be facing – a gallery dispute, attorney fee dispute, whatever it may be. It’s my way of showing how much I value what artists contribute. And, I’ll help anyone else, really, if it’s a compelling case to me.

*****

“I expect that I take cases that a lot of other firms in the city wouldn’t look at because their overhead is too high.”

What sets you apart from your competition?

It’s always difficult to say what I do differently from other firms in the area, because there are a lot of great attorneys in the city and only limited information about their practices.  But I expect that I take cases that a lot of other firms in the city wouldn’t look at because their overhead is too high. For example, the contingency fee cases are opening up a lot of opportunities for me. A lot of lawyers won’t even look at business contingency cases.

Another thing that I hope characterizes Emergent is its attention to relationships.  The ultimate goal of the attorney-client relationship is to advance the client’s set of goals, even if the attorney would prioritize those goals differently.  A good lawyer has to have a genuine desire to relate to his clients in order to advance their interests.  He has to be genuinely interested in understanding who they are and what motivates them. And he has to be equally interested in the other side. A personal sense of having been wronged can loom larger than economic harms for some, and you had better understand what your client is really after before you dig into a case.

*****

“My ambition is for Emergent to practice at a level comparable to some of the biggest firms in the city….”

How are you able to compete with bigger firms, especially in how you handle large-scale cases?

You can do a lot in terms of managing a large case by just focusing on the issues that really matter.  For example, in drafting the complaint, you might have fifteen possible causes of action, but if you look closely you can eliminate the ones that don’t provide additional relief, say, or that would require a lot of discovery to prove.  If instead of listing all fifteen causes of action, you just focus on the core nucleus of the case, this saves a lot of work.  It also shows the judge and the other side that you’ve really thought about what the case is all about and are not just throwing everything at the wall.

There are some basic practical things, like going paperless and eliminating busywork, that can help you make effective use of your time and limited resources.  And there’s always the opportunity to scale up quickly by partnering with other small firms and looping in contract attorneys.

My ambition is for Emergent to practice at a level comparable to some of the biggest firms in the city, with just me and a couple of other people.  I’d like to believe that it just takes a couple of good heads and good instincts to win.  Time will tell.

How else do you improve efficiency in your practice?

Efficiency demands not going through the same 18 steps with every case you get. I am much more efficient when I can step back and think about what I need to achieve in a case at a very high level. I try to think about the particular goals of the case, distill the central narrative of the case, and use my instincts about what angles will resonate with my eventual audience. I find that, once I have this vision established for a case, the work seems to prioritize itself.

How do you use technology to improve efficiency?

Google Drive has been tremendous. It’s wonderful being able to store documents somewhere where they can be easily indexed and searched. Multi-sheet scanners are also great. They help me stay paperless. I use Dropbox and Box to share files with clients. This improves not only efficiency (for example, you don’t have to re-answer the same questions over and over for the client) but also risk management. By keeping clients up to date, they stay invested and involved in the case, and they understand why it took you so many hours to do a particular task.

What about case management tools?

I don’t have any faith in the big case management tools. I have never seen them to be useful. Most cases come down to 15 documents – especially cases involving smaller companies, but even in bigger cases. Especially since most cases never go to trial. If you’re trying to think about what 10 to 15 documents really make your case, categorizing every document doesn’t get you there.

What about tools for document review?

The most recent generation of technology-assisted review (TAR) has been tremendous, but there’s still a lot to figure out there: how to categorize by type, create a relevancy profile, etc. TAR might be useful for a huge case where you need to go through a lot of documents, but at my last firm, the TAR we used didn’t really add a lot of value.

I have an idiosyncratic idea of what document review should look like. If you’ve practiced long enough, you get a feel for what documents there will be. You can see who the key players are, how they manage their document system on the other side, etc. So you know where to look. A lot of it is just spending time sifting through the documents in a non-linear fashion to see what catches your eye. For example, in one case we had some documents with gibberish titles that turned out to be chat logs; they ended up being some of the most important documents in the case. Maybe TAR is backing into this nonlinear review in a more methodical way, but any review tool from the past five years is probably enough to allow you to do this sort of investigation.

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Developing professional skills through volunteering

Taking on pro bono cases is an oft-used way for new and seasoned lawyers alike to learn new areas of law and/or begin to develop a network for referrals. Here are some resources online to find the right pro bono opportunity for you:

  • Probono.net’s  Volunteer Guide lists organizations with pro bono opportunities, by state. You can narrow your search to specific areas of law, specific populations served, specific counties, and/or specific type of project.
  • The Boston Bar Association’s Volunteer Lawyer Project lists specific cases or shorter-term projects. Like probono.net, the site also lists programs and organizations that can refer pro bono cases that might not be listed on the site.

 

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Links to other profiles of enterprising lawyers

ABA’s Legal Rebels project – Profiles innovative lawyers “finding new ways to practice law, represent their clients, adjudicate cases and train the next generation of lawyers.”

James Baron, Esq. – Special education solo practitioner.

Helen Gulgun Bukulmez, Esq. – Immigration law solo practitioner.

Lee Rosen, Esq. – Family law solo practitioner.

Posted in Inspiration, Profiles of Innovative Lawyers | Leave a comment

Should you incorporate?: Choosing an entity for your law practice

If you want to hang your own shingle, or change the structure of your existing practice, one of your first decisions will be whether to form an entity for your business, and, if so, which one. Here’s what I’ve gathered so far on the topic.

Keep in mind that the law governing entity formation is mostly a matter of state law, and that the law varies from state to state. I have focused on California law — and in some cases local San Francisco law — here, on the reasoning that it will give others an indication of what to look out for in their own locality’s rules, but please feel free to add more info on options in other states.

First some general considerations:

  • In San Francisco, every person or entity doing business in the City and County of San Francisco must obtain a valid Business Registration Certificate from the Office of the Treasurer & Tax Collector. (Article 12A of the San Francisco Business and Tax Regulations Code.) Most localities probably have a similar requirement that local businesses obtain a business license.
  • Every person or entity conducting business under a name  other than that person’s or entity’s full legal name must also file a Fictitious Business Name Statement with the County Clerk.
  • In California (and maybe elsewhere as well), you may not call yourself a firm if you are a solo practitioner, no matter what entity you practice under. (California Rules of Professional Conduct, Rule 1-100)
  • Employment requirements under the Labor Code are the same regardless of which entity form you choose.
  • Forming an entity does not protect your assets from your own personal malpractice. Liability insurance is therefore highly recommended, whichever entity you choose.
  • The Internal Revenue Service (IRS) considers you to be self-employed for retirement planning purposes if you are an S corporation (see below), are in a partnership, or, of course, are a sole proprietor. If any of these apply to you, you might want to look into self-employment IRAs.

Now for more detail on the entity options available:

Summary: In California, the only for-profit options available to solo practitioners are to operate either as  (1) an unincorporated sole proprietor or (2) a professional corporation (PC). The for-profit options available to groups of two or more lawyers working together are (1) unincorporated general partnerships, (2) limited liability partnerships (LLPs), and (3) PCs. (In other states, the LLC is becoming the legal entity of choice, but that option is not available to lawyers in California. See more below.) Solo practitioners and groups of attorneys alike can operate as non-profit organizations.

Sole Proprietor/”DBA”

If you don’t want to incorporate, you can do business under either your own name or under a fictitious name (“doing business as,” or “DBA”). If you do business under your official name, you don’t have to file a DBA, but you should anyway.

You cannot have partners as a sole proprietor (there can be only one owner), but you can have an unlimited number of employees. If there are any employees in addition to yourself, you must apply for a Federal Employer Identification Number (EIN) by filing Form SS-4 with the Internal Revenue Service.

When you file your personal federal income tax return on Form 1040, you will attach Schedule C to report your profit or loss from operation of your sole proprietorship law practice. Deductions for health insurance, SEP-IRA contributions, or solo 401(k) contributions will reduce your federal income tax.

In addition to your federal income tax, you must pay a 15.3% self-employment tax (12.4% social security tax + 2.9% medicare tax) on your net income. Increasing your business-related expenses is one way to reduce your net income (and hence reduce your self-employment tax). Net income above the first $117,000 is not subject to the social security tax.

Pros:

  • After you get your business license, DBA, and, if applicable, your EIN, you don’t have to go through the ongoing administrative hassle of following corporate formalities.
  • You pay only individual rates for federal and state income taxes.

Cons:

  • No corporate liability shield: With no legal separation between you and your practice, a sole proprietorship doesn’t offer premises or employment liability, which means your personal assets are subject to seizure or lien by creditors. *Note, however, that another way to protect your personal assets, other than the corporate liability shield, is just to take out general commercial liability insurance.*
  • The self-employment tax. Some other entities (e.g., the S Corporation) offer lower social security and medicare taxes.

Professional Law Corporation (PC) 

A professional corporation (known as a professional association, or P.A., in some jurisdictions) is the only corporate entity available to solos under the California Corporations Code and Business and Professions Code. It is also available to associations of attorneys. All owners of the corporation must be licensed attorneys. There are currently about 8,800 certified law corporations in California.

To form a professional corporation in California, you must file Articles of Incorporation with the California Secretary of State. You can either compose your own document or use Form ARTS-PC.  The California Secretary of State provides tips for corporate filing. The California State Bar provides tips specific to Law Corporations.

The Law Corporations Program monitors compliance with applicable statutes and court rules. (See California Corporations Code Sections 200-202 et seq. and 13400 et seq.)

Pros:

  • Limited liability: Shareholders of a corporation do not have personal liability for liabilities that arise in the normal course of business (premises liability, employee liability, etc.). Note, however, that you can get similar protection by buying general commercial insurance. 
  • Shareholders of a corporation do not have vicarious liability for liabilities that arise from he malpractice of other attorneys in the firm. Note, however, that you can get the same protection by forming an LLP rather than a PC. Note also that incorporating does not protect your personal assets if a malpractice claim is brought against you personally or someone you supervise. (See California State Bar Rules of Professional Conduct, Rule 3-400.)
  • Safety from losing liability shield: If your professional corporation is administratively dissolved for failure to file the annual report, it may be reinstated at any time by paying the applicable reinstatement fee and filing the applicable form. The reinstatement is retroactive to the date of administrative dissolution. This is safer than an LLP (see below), where you lose liability protection altogether if you forget to file your annual report.  This is a main reason to operate as a PC rather than as an LLP.
  • If your profits are high, then you may pay lower taxes as a corporation than you would as a sole proprietor or partnership (see below). *This is the other main reason to operate your practice as a PC rather than as an LLP or sole proprietorship.* 

Cons:

  • Administrative burden: To maintain liability protections it is necessary to follow all corporate formalities: annual reports, meetings, minutes, separate bank accounts for the corporation and the lawyer’s/lawyers’ personal funds, etc.
  • There is $100 filing fee.
  • Two-tier taxation (see below). Unless you have very high profits, this two-tier taxation will result in you paying higher overall taxes than if you operated in some other form.
C Corporation or S Corporation?

If you form a professional corporation, it is presumed to be a C corporation (named after subsection C of the Internal Revenue Code) unless you specifically elect to make it an S corporation (named after subchapter S of the Internal Revenue Code) by filing Form 2553 with the IRS.

A C corporation has two levels of taxation on all profits: The corporation pays tax on its net income and then individuals shareholders pay tax on distributions. You should therefore not operate your PC as a C corporation unless you have little to no profit; you can minimize profit by designating income as salary.

An S corporation has a hybrid level of taxation that is usually better for lawyers. A lawyer incorporated as an S corporation can designate a reasonable salary for herself from the corporation’s profits. If the corporation’s income exceeds this salary, the remainder will be distributed to the lawyer as a dividend. The benefit of an S corporation is that this distribution income is taxed at a lower rate than the salary.

Other tax benefits that may depend on the particular circumstances of the individual lawyer(s) are that a C corporation can include greater deductions for health insurance and medical expenses, and an S corporation will have  lower payments for social security and medicare taxes.

C-Corps file federal taxes on Form 1020, and California state taxes on Form 100. In California, C-Corp is taxed on its net income at a rate of 8.84 percent; C-Corps (and LLCs that elect to be taxable as a C-Corp) are subject to a minimum tax of $800.S-Corps file federal taxes on Form 1020S and Form 1020S Schedule K-1, and California state taxes on Form 100S and Schedule K-1. In California, business and California non-business income is taxed at 1.5% or a minimum tax of $800, whichever is greater.

Take-aways:

  • If you are a sole practitioner, there seems little point to operating your law practice as a PC unless you make a lot of money. 
  • If you are not a sole practitioner, an LLP is generally more economical and less of an administrative burden than a PC, unless you make a lot of money. The one main benefit of a PC is that, unlike an LLP, it offers the security of being able to maintain limited liability protections even if it files its annual report late.
  • If you do decide to become a PC, for most law practices it makes sense to choose the S-Corp election. 

General Partnership

A partnership is a business that is not incorporated and is owned by two or more people. (A partnership is therefore not available to solo practitioners.) If you start a law practice with any partners and do not incorporate, then your law practice is by default considered a general partnership.

All partners in a law partnership must be lawyers. (California Rules of Professional Conduct, Rule 1-310) All partners in a partnership are owners of the partnership and can take an active role in managing the day-to-day affairs of the business. Each partner’s share in the profits and losses is determined by the partner’s percentage interest in the general partnership.

To form a partnership, you must file a partnership agreement with the state, stating how much each partner will put into the venture, how profits and losses will be allocated, how debts will be handled, etc. You can ensure the stability of the partnership by putting in the partnership agreement that the departure of one of the partners won’t automatically dissolve the partnership.

Pros:

  • Lower taxes: Partners are taxed on a pass-through basis under state and federal law. That is, the partners pay individual income tax on their respective distributive share of the partnership’s annual profits, as reported to each partner on Schedule K-1, but there is no separate entity-level taxation. The partners will therefore pay very little in taxes if their profits are low (and no taxes if they make no profit).
  • Lower administrative burden: Aside from applying for an EIN and filing a federal tax return each year on Form 1065, a general partnership doesn’t have to follow any corporate formalities, such as creating a board of directors and hiring a registered agent.

Cons: 

  • Vicarious liability: Each partner in a general partnership is jointly and severally liable for all liabilities of the law practice business, including for one another’s malpractice. All personal assets of each partner are subject to seizure or lien by creditors. Each partner’s financial risk is therefore unlimited.
  • If you make a lot in profits, then you might pay fewer taxes as a corporation than as a partnership.
  • Vicarious disqualification: Having a partner will raise the prospect that you will be vicariously disqualified from a matter if your partner has a conflict of interest in the matter. (California Rules of Professional Conduct, Rule 3-310)

Takeaway: Because of the liability risk, you should never join a general partnership. If you run a law practice with one or more other lawyers and are not incorporated, you should register as a limited liability partnership (see below).

Limited Liability Partnership (LLP)

A limited liability partnership is like a general partnership except that it gives all partners protection from vicarious liability for the malpractice or other tortious conduct of their partners and employees.  A limited liability partnership must be registered with the state bar. In California, partners in an LLP are each required to carry at least a million dollars in malpractice insurance.

Pros:

  • Same as general partnership: (1) Pass-through taxation (same as in general partnership). (2) Lower administrative burden than a PC — no need to follow corporate formalities, except for filing annual reports with the state bar.
  • Limited liability. Partners are not jointly and severally liable for the malpractice of other partners.

Cons:

  • Same as general partnership (except the joint and several liability): (1) If your profits are high, you may pay more in taxes as a partnership than you would as a PC. (2) Higher risk of vicarious disqualification.
  • $70 filing fee.
  • Higher taxes than a general partnership, but not really that much higher — something like $800 per year.
  • Risk of losing liability shield: LLPs must file an annual report. Failure to file the annual report can result in loss of LLP status and the personal liability of each partner for the liabilities of the partnership. This is one of the greatest disadvantages of the LLP as compared to the PC (see above).

Note that a limited liability partnership is distinct from a limited partnership (LP), which must have at least one limited partner and one general partner (with unlimited liability), or a limited liability limited partnership (LLLP), which is a limited partnership with additional limited liability protections for the general partner(s). I am discussing here only limited liability partnerships (LLPs).

Limited Liability Companies (LLCs)

In some states the LLC (or PLLC, professional limited liability company) is becoming the legal structure of choice, but in California the LLC form is not available to law practices.

An LLC is owned by members rather than by shareholders. It offers the same liability protections as a corporation, but is considered a pass-through entity under federal and state tax law — thus combining the major advantages of the corporate and partnership forms. Or members can choose to be treated as a corporation for tax purposes; or, different members of an LLC can each individually incorporate under a different form (C corporation or S corporation), depending on how they want to individually structure their tax responsibilities.

Nonprofits

Most nonprofits are corporations (though they an also be trusts, unincorporated associations, or LLCs). Not all nonprofits are tax-exempt; to be tax-exempt, a nonprofit must, among other things, (1) be formed and operated exclusively for the public benefit, and (2) its charter must include irrevocable dedication of assets to the organization. That is,while it can generate revenue, it cannot have shareholders and cannot distribute assets as dividends.

Pros:

  • Limited liability: Nonprofit corporations can limit liability, just as with any corporation.
  • Tax benefits: Nonprofits who meet the above criteria are exempt from state and federal income taxes.
  • Funding sources: Nonprofits are attractive to foundations and other charitable donors because contributions to a nonprofit are tax-deductible.
  • Other financial perks: Nonprofits are exempt from federal laws regarding unpaid interns and often enjoy other perks such as free software licenses.

Cons:

  • Administrative burden: A nonprofit corporation must maintain corporate formalities, just like any other corporation. Plus, to maintain tax-exempt status,  a 501(c)(3) must submit annual or biennial filings with the state, filings with the state attorney general.
  • Non-distribution restriction: Nonprofits cannot have shareholders and therefore cannot raise equity capital. All profits must be put back into the nonprofit.
  • Other restrictions on organizational activities: Tax-exempt nonprofits have other restrictions, including restrictions on political activity or lobbying and, most relevant to lawyers, on taking on contingency-fee cases.

In California, a professional law corporation can incorporate as a nonprofit public benefit corporation under the California Nonprofit Public Benefit Corporation Law. (Calif.Corp.Code §5110 et seq.) Such a corporation must either (1) be a “qualified legal services project” or a “qualified support center” within the meaning of Business & Professions Code §6213(a) and (b), or (2) must show that all its directors, officers, shareholders, and members are licensed to practice law in California, that 70% of its clients are “lower income persons,” and that it does not have contingency fee arrangements.

A similar corporate form, which does not have to comply with the Nonprofit Public Benefit Corporation Law, is a nonprofit “advocacy” corporation that provides legal services.

Hybrid Forms

Many states have passed legislation creating new hybrid corporate entities — known as benefit corporations or flexible purpose corporations — that combine the corporate attributes of shareholder ownership and equity capital with the nonprofit attributes of operating, in part, for the general public good. As yet, these hybrid forms present no tax advantages over traditional corporate forms; their principal benefits are that, in theory, (1) they are eligible to raise both equity capital and money from foundations and other charitable donors, and (2) their status as benefit corporations signals to socially and environmentally conscientious consumers that they are socially responsible corporations worth patronizing.

Sources:

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Behind the Veil: Visiting Someone in Prison

We . . . turned our courts into giant unthinking machines for sweeping our problem citizens under a rug. . . . [I]nstead of dealing with problems like poverty, drug abuse and mental illness, we increasingly just removed them all from view by putting them in jail.”

~ Matt Taibbi, “Cruel and Unusual Punishment,” Rolling Stone 

The Myth

Criminal punishment was at one time often very public: we whipped or executed outlaws before throngs of onlookers, or displayed them in the stocks in the public square.  Now we spirit the condemned away to hidden prison cells, forgotten by the rest of us, a modern-day form of ostracism.  The punishment of convicts occurs behind closed doors, much of it in secret.

English: Cell of a prison on , , USA

Adding to the cloak of invisibility is the popular media, which saturates us with fictionalized and misleading versions of what prison and the people inside it must be like. The new show Orange Is the New Black, about a yuppie serving a prison sentence in upstate New York, portrays prison conditions as pretty bad – unpalatable cafeteria food, insufficient hot water, noisy bunkmates, sexual harassment – but (with some exceptions) kind of in the way that seventh grade is pretty bad for the new kid in school with bad acne and an out-of-style wardrobe.  There’s a light humor behind the horribleness of the experience, which – like seventh grade – the show depicts as a “temporary” plight: the protagonist has a sentence of 15 months, another main character has a 34-month sentence, and a guard mentions a crack dealer sentenced to 9 months and – as an example of a truly extreme sentence – another inmate sentenced to 4 years.  There’s a nice enough looking library and contact visits with family members and a functioning hair salon.  An inmate with sufficient clout can barge in on a guard sitting on the crapper and demand new kitchen equipment from him with impunity.  This skew is understandable — the show is supposed to entertain us, not traumatize us.

Films like The Lincoln Lawyer and TV shows like Law and Order depict prisoners themselves as deranged, irredeemable, or just plain hardened.  They’re tough guys (and gals) that really aren’t too fazed by the whole prison experience – or at least not worthy of sympathy if they are.

The Reality (or at Least One Tiny Sliver of It)

Last month I made my latest prison visit.  After a two-hour drive under California’s cloudless sky, my firm’s partner, a summer fellow, and I pulled into the visitors’ parking lot at X___ State Prison, the fourth correctional facility I’ve visited in this state.  We had come to meet with two clients, each serving a life sentence under California’s three-strikes law, and each appealing their sentence under Proposition 36.  The third strike for each was heartbreakingly trivial.

(Until the passage of Proposition 36 last November, California was the only state that gave out three-strikes life sentences for nonviolent offenders.  In California, convicts with prior criminal records have been sentenced to life in prison for stealing a $2.50 pair of socks, a slice of pizza, a pair of baby socks, or five children’s videotapes from Kmart.  The typical third-striker in a California prison is homeless, mentally ill, and, of course, a person of color.)

In a tiny cinderblock visiting room, we met with the first of our young clients.  He talked animatedly about what he would do once he got out of prison: care for his daughter, raise horses on his uncle’s ranch.  He knew everything there was to know about horses.

“The city is not for me,” he said, and indeed it had not done him very many favors.  Born to a drug-addicted absentee mom, he had spent his youth caring for his younger siblings and disabled grandparents, doing odd jobs wherever he could get them.  He fell in with the wrong crowd as a teenager, got high one night, and got into trouble.

He showed us the novel he had just written in prison.  “Gotta keep busy,” he said.  He wrote it in one month.  He had already found a publisher.

A large part of these meetings is about managing expectations.  Though Proposition 36 prohibits imposing a life sentence for someone who has not committed a “serious” offense, those already serving such life sentences have an uphill battle in appealing their sentence.

Another part of these meetings is balancing the need to temper expectations against the need to keep the client motivated to stay on good behavior, to maximize their chances of success.  It can be a tricky balance.

“I have a good feeling about this appeal,” he told us at the end of our meeting.  “That’s what’s keeping me going.”

***

Our second client was only four years older than the first, though he seemed much more.  Otto (we’ll call him) was a tall but frail-looking man, his spine curved under the weight of an invisible burden.  He wore a goatee and glasses with small rimless lenses that magnified his large gentle eyes.  He looked child-like and scholarly at the same time; in a way he was both, and neither.

His background, like our first client’s, read like that of so many others in his shoes: born in poverty to a drug-addicted mother and a murdered father, he became enamored as a youth of the seemingly glamorous lives of the criminals around him and was sentenced first to juvenile detention and then prison before he was 20.  Prison was a shock to his system: he witnessed routine guard-on-inmate and inmate-on-inmate brutality, including the murder of close friends, and developed PTSD.   He received a life sentence for fleeing the wrong way down the highway after a cop pulled him over for speeding (to get to his hospitalized pregnant wife) and triggered his PTSD by pulling a gun on him.

As he shuffled into the visiting cell, Otto’s left hand clutched a clear plastic garbage bag, which he set beside him on the ground as he took his seat.  The bag contained a thick stack of papers held loosely together by a rubber band, and a paperback book.

As my partner introduced herself, he looked up slightly smilingly at her with his wide, patient eyes.  “We’ll be working closely with your trial lawyer on your appeal, so you have a great team working for you.”

“I really appreciate that,” he said with a humble nod of his head.  He was soft-spoken and gracious.

“It’s important that you understand that this is an appeal, though, which makes your chances of success very slim.”

He nodded deferentially again and said, “I know.”

“Thank you for sending all those documents,” she went on.  “I wouldn’t have known all that about you from the record the trial court sent me of you – the facts around your conviction, your background, the psych report, your record of rehabilitation.  We’re going to augment your record with all this stuff – it shows what a great candidate you are for this remedy,” she said.

The documentation on Otto – probation reports, reference letters, and the like – described a somewhat remarkable record of rehabilitation.  A psychologist running one of the prison programs described him as one of the inmates most respected by his peers – a quiet man others heeded and emulated, as he steadily tread the path of self-improvement.  A white supremacist who had previously refused to even speak to a black man had asked Otto for a hug during one of the program sessions.

“Thank you,” Otto replied.  He broke out in a wide grin, almost in spite of himself, like a schoolboy receiving his first accolades from a teacher.

“Do you have more for me there?” my partner asked, pointing to his bag.  He bent down and gingerly pulled the stack of paper from his trash bag.  He set it on the table and started turning over the pages.  “This is the certificate from the Life Skills program I did . . . and the Anger Management program . . . .”  He carefully set each sheet aside as he pulled it from the top of the thick pile.

“A___ will talk to you about the rehabilitation stuff in a minute,” my partner said.  “First, I’d like to go over a bit what happened at your trial.”

Otto poked through the stack of papers again.  “The DA said it was an accident.  He said they weren’t charging me with having done it on purpose.  I can’t find the transcript.  I’ve been doing research to try to find it, but I can’t find it.”

“I want you to understand, this appeal will not be a fast process,” my partner explained.

“That’s ok.”  He smiled.  “I’ve been here 11 years.  I can wait a little more.”

He wanted to know if he would have to appear in court.

“It would be better if you could.  Will that be a problem for you?”

“Well, last time I made an appearance, they had to hold me in transitional housing for 59 days.  That was hard.  They were transporting me quite long distances.  I had a pretty good cellmate before I left.  I was comfortable.  But when I got back I had a different cellmate.  They put me in a different unit.  Also, they were supposed to pack up my things when I left, but they didn’t, so when I got back I didn’t get my belongings back.”

After all of this, the judge had taken all of two minutes to deny Otto’s appeal.  Otto had not even been given the chance to speak.

“Oh, well, maybe we’ll see if we can do it without you having to appear.”

“Oh no, if you think it will help at all, I’ll go,” he said, his wide lips pulling apart into another humble smile.

The next main task for the visit was to make sure Otto was doing everything he could on his end to maximize his chances: staying out of trouble and taking active steps to demonstrate his rehabilitation.  “Have you signed up for any of the programs offered here?,” the summer fellow asked.

“I’m taking GED classes.  I already have a GED, but I want to work on my math, so I’m taking the classes again.  I have a really hard time with the math,” he smiled again.  “It’s good.  The teacher really works with us.”

“Great.  What about any of these other programs?”  The fellow brought out the list we had of prison programs.  “Drug programs, job training programs . . . .”

“Oh there’s a long waiting list for all of those.  I put my name on the list, but they don’t even let people with life sentences take them.  Lifers aren’t even eligible.”  (“So if you have a life sentence you’re as good as dead?,” my partner asked me later.)

“Have you been staying out of trouble?  Any disciplinary issues?”

“Oh no,” he stressed.  “I’m very careful about that.”  He was, in fact, a model inmate.

“Any contraband?”

“No.”

“Any drug use?”

“No.”

He later mentioned that he had been caught once with marijuana, which he had been using for the back pain caused by his scoliosis.

“So when I asked you before about drugs, you didn’t consider that a drug?”

“Oh, no, I guess not.  It was the only way I could sleep at night.  I couldn’t use Ibuprofen because the doctors said it was destroying my stomach lining.  But when they found me with marijuana, they put me in the hole for months.  I haven’t used it since then!,” he said wryly.  “I’d rather live with the pain.”

He writes poems in his spare time.  “I want to tell young people not to end up here.  I want to tell them what it’s really like.”  He pulled the paperback from his trash bag.  “This woman, she wrote a book for young people, about prison.  She put one of my poems in the book.”  He showed us the page.  His eyes shone with pride.

On his left ring finger he wore a band for a fiancée who waited for him on the outside.  He also had a daughter.  During our entire interview, that ring stabbed at my heart – that ring and the patient, earnest look in his eyes.

When it was time for us to go, he stood up, shook our hands, thanked us, and gathered up his trash bag of crinkled papers.  Then he turned away and stood stooped before the guard, his bag hanging from his hand, turning himself over to be escorted back to his cell.

“Thank you for coming to see me,” he wrote following our visit.  “It is truly rare that lawyers come and see inmates.  Second, thank you for taking my case.”

Posted in Criminal Justice, Interviewing Clients, My Story | Tagged , | 1 Comment

The hidden costs of pro bono

A friend of mine hired a lawyer to help him create a trust in which to put some of his earnings. The lawyer charged $800/hr.

Another friend needed a lawyer to appear with him (for a few hours) at his administrative hearing to help him contest his termination. The fee was $20,000.

The fee for a lawyer to advise a friend on a single provision in his mother’s trust was $1,500.

An attorney in my office once described the sense of guilt she sometimes feels when she looks at the total amount due on the invoice she is about to send out. “Don’t feel guilty!” a colleague told her. “Everyone else charges that much. You deserve it too!” If clients are willing to pay it, why should lawyers charge less?

Legal fees of $1,500 or $20,000 – or even $300 – are so out of touch with the cost of most goods and services in our economy that it’s as if they existed in a different currency.  Legal fees like this equate a few hours of legal services with taking a family vacation, making a down payment on a house, or hiring a home healthcare worker for an elderly parent.

I am not the only one whom it strikes as deeply problematic that legal services are accessible only to those who can afford a private jet or a summer home.  As the “gap” in access to legal services widens, calls for more pro bono commitments by lawyers have grown more strident.  Four years ago the American Bar Association created annual National Pro Bono Week, and states have followed up with their own.  The Chief Justice in Pennsylvania recently called on lawyers to devote more hours to pro bono work.  New York’s 4th Judicial Department is launching an appellate pro bono project.  State bar associations present Pro Bono Service Awards. The letter admitting me to the California bar urged me to do my pro bono bit.

Pro bono is not the answer

To put the access-to-justice problem in perspective, consider that around 83% of Americans have access to the food they need.  Around 84% of Americans have access to healthcare.  These rates are unacceptably low, but they make America look positively utopian next to rates of access to legal services.  Only 20% of poor Americans and a vanishingly small proportion of middle-class Americans have access to legal services. The U.S. ranks 66th out of 98 countries in accessibility of legal services.

Most people in this country have access to the food they need because they don’t need to afford a private chef to be able to eat, and most people in this country have access to medical services because health insurance covers what they cannot pay out of pocket.

Free place to sleep

For some reason, however, (explained in many sources not covered here), the emphasis on solving the access-to-justice problem — at least from bar associations and legal insiders — has not been on lowering legal fees or creating legal insurance schemes or some such solution.  Instead, as noted above, it has been to exhort lawyers to work for FREE.

Problem 1: “Pure” pro bono work is financially unsustainable

Main Street lawyers – primarily solo or small-firm practitioners – . . . consistently express the belief that pro bono is ‘an elitist claim to good works. . . . [They] regard ABA mandates about pro bono to be just another mandate from elite Wall Street attorneys who “feel they can tell all practitioners what to do.”

~ Professor Luz Herrera, “Rethinking Private Attorney Involvement through a Low-Bono Lens”

I cannot afford to work for free. Most lawyers, unless they have a rich spouse or a trust fund, cannot afford to work for free.

“Free” legal work must be subsidized by someone.  Large firms subsidize their pro bono services with fees earned from high-paying clients. Solo and small-firm attorneys – who are far and away the biggest source of legal services for low-income clients – usually do not earn high enough fees on any individual matter to offset purely pro bono services.  They therefore depend on reduced-fee (“low bono”) arrangements to sustain their practice. They may charge only a little, and they may continue to perform legal services after the client has become unable to pay for them, but they can’t operate by charging nothing to anyone at any point.

These subsidies for free legal work are extremely limited.  A small-firm lawyer can only give away so much of her time and resources.  A large firm can give away only so much of its time and resources as it can offset with fee-earning work.  Needless to say, when the economy is bad, their ability to provide free legal services goes down precisely when it is most needed.

Problem 2: The supply of pro bono services does not meet the demand

Again, small-practice attorneys – on whom most of the poor and middle class depend for legal services – are limited in the amount of time they can devote to pro bono work because they must personally subsidize any pro bono services they provide.

Not-for-profit, government-funded legal services offices do not fill the gap. Not only are government funds limited (as we all now know all too well), but, in addition, government funders expressly prohibit their donees from taking on certain kinds of cases. For example, Legal Services Corporation (LSC), the primary funder of legal aid organizations, restricts the organizations it funds from filing class actions, recovering attorneys’ fees, representing undocumented people, and suing government agencies. A friend of mine who works in a non-profit organization that represents victims of domestic violence is prohibited by her organization’s funder from representing anybody against whom the Administration for Children’s Services (ACS) has taken any action.

And, of course, one of the principal restrictions on most not-for-profit legal service providers is that they cannot represent anyone earning above a certain very low income threshold (usually between 125 and 200% of the federal poverty line, depending on the location of the organization).

Because of all these limitations, legal aid organizations serve one-third to one-half as many poor people as do private solo and small-firm practitioners.

The end result of all of this is that pro bono services are unavailable for most low-income clients and almost all middle-income clients.

Problem 3: Pro bono services, even when provided by private attorneys, have hidden costs for the public and for clients.

When a big corporate lawyer who does mergers and acquisitions every day takes on a pro bono asylum or death penalty case, she requires training in the new field of law. She requires written training materials and supervision by lawyers with expertise in the new field. Her firm requires a third party to connect it to pro bono clients.

The intermediaries serving these functions – providing the training and supervision, researching and writing the practice manuals, and generating client referrals – are usually independent non-profit organizations. That is, they are organizations subsidized by favorable tax treatment. Currently, the big firm lawyers receiving this training do not finance this infrastructure – the public does.

And the costs do not end there.  A friend of mine who works in a non-profit legal organization told me that her organization preferentially hands cases over to outside pro bono attorneys in big law firms over staff attorneys at the non-profit organization.  Unfortunately, the big firm lawyers – being relatively inexperienced with these kinds of cases – usually make a lot of mistakes that the staff attorneys then have to go back and fix anyway.  This not only greatly increases the time and resources for any particular matter, but also the risks to the client.

To give a sense of just a fraction of the costs involved each time a lawyer is trained in a new area of law (sometimes for the purpose of taking on only one or two cases in that area): Several months ago I participated in a reentry clinic – a clinic providing legal remedies to help those with criminal justice backgrounds obtain jobs, professional licenses, housing, etc.  I met with one client that day.  Because it was my first reentry client ever, two attorneys and a staff person from the organization that had organized the clinic met with me for an hour before I met with the client, and met with me again for one hour after the meeting to debrief and provide guidance about further steps. At the end of the day, five licensed attorneys and one additional staff person had spent three hours (eighteen hours, including fifteen lawyer hours, collectively) basically just on the intake for a client whose legal issues were no more complex than navigating a few administrative agencies and employment applications.  Normally, a client intake takes half an hour for an initial screening; one or two hours for a more thorough assessment of whether to take the case.

Training these big-firm lawyers for occasional dips into different areas of pro bono practice for 40 hours per year is not only expensive, but also inefficient. These recurring training and supervision costs do not exist for solo and small-firm practitioners providing legal services in areas they are already practice on a regular basis as part of their practice.

Free legal services have their place.  But if the law profession’s unique focus on “free” services — as opposed to, say, economies of scale, streamlined procedures, insurance schemes, or other economic solutions — as the principal means of meeting the demand for access to critical legal assistance, seems impractical or puzzling, I recommend reading more about the historical origin of the profession’s pro bono mantra.

Sources:

Luz E. Herrera, “Rethinking Private Attorney Involvement through a Low Bono Lens,” Loyola of Los Angeles Law Review, Vol. 43: 1, September 2009

Debra Cassens Weiss, “Middle-Class Dilemma: Can’t Afford Lawyers, Can’t Qualify for Legal Aid,” ABA Journal, July 22, 2010

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