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f/k/a archives . . . real opinions & real haiku

February 3, 2004

Poet Lawreates, Indeed, and In Print

Filed under: pre-06-2006 — David Giacalone @ 10:29 pm


masks   I’m pleased to be able to share some good news about lawyers with you, for a change. Through the magic of the internet, law Professor James R. Elkins (College of Law, West Virginia University) discovered that we both share an interest in ethics and poetry and contacted me last week. In addition to discovering a wealth of materials on legal ethics and morality, I was delighted and humbled by Prof. Elkins’ amazing creation – Strangers to Us All: Lawyers and Poetry.

I immediately shared this great resource with that dapper, cultured weblawger, George Wallace, who had this to say in a posting today at The Fool in the Forest:

Poet Lawreates

[David called my attention to] Strangers to Us All: Lawyers and Poetry — a most impressive compilation of lawyer-poets and poet-lawyers both contemporary and not. The familiar suspects are represented — Wallace Stevens, Archibald MacLeish, even Francis Scott Key [whose poetry we learn was edited after his death by U.S Supreme Court Chief Justice Roger Taney] — as are many more obscure figures. I can see that I’m likely to lose significant amounts of time in exploring Professor Elkins’ site on my return, and I commend it to you in my absence.

Professor Elkins has an array of other material posted dealing with the intersection of law and Culture. I’m particularly curious about his discussions of Lawyers and Mythology. A thorough directory of the professor’s online offerings can be found here.

Today, Prof. Elkins sent me the following good news: “Off the Record: An Anthology of Poetry By Lawyers” is now at the printer and will appear later this month as Volume 28 of the Legal Studies Forum. If you know of anyone interested in this curious, historical first — the first-ever published collection of poetry by lawyers which gets beyond the rather stale notion of “legal verse”– let me know.” [update: see our posting “every law library needs this volume” announcing the publication of Vol. 28, March 11, 2004]

  • order today Off the Record has 699 pages of poetry by lawyers. You can Contact Professor Elkins directly to let him know that you’d like a copy of Off the Record. Hurry to get the pre-publication price of $15.

skepticalEsq (who is feeling neglected amonst this positive stuff) asks: ” Do you think all those assigned counsel are writing poetry instead of interviewing clients?” No, I don’t!



Postscript (02-05-04): I couldn’t figure out where all the traffic was coming from for this little artsy post, until I discovered that I had been mentioned by the immensely popular, immensely-(though unnecessarily)-modest Scheherazade. I’ll take her links over hot-shot-professor links anyday. And thanks to Evan for his link, too.


Too Many Assigned Counsel Just Don’t Give a Damn

Filed under: lawyer news or ethics,viewpoint — David Giacalone @ 8:59 pm

you! . .

This time, the study targets Virginia, decrying rampant substandard legal services given to the poor by assigned counsel. Citing and summarizing A Comprehensive Review of Indigent Defense in Virginia, The Richmond Times Dispatch headline screams “Study finds ‘attorneys do the bare minimum, and often less’ for poor” (by Alan Cooper, 02-02-04). (thanks to SW Va Law Blog for pointing to the article)

Note: Public defenders are salaried employees; assigned counsel are appointed by judges on a per-case basis.

The Times Dispatch article reported that 80 attorneys each handled at least 400 assigned counsel cases last year, and that “Many of those lawyers are sole practitioners supported only by a secretary and voice mail.” [Of course, some don’t have a secretary.] The article quotes the Report as saying:

  • “Public defenders and assigned counsel simply do not have the time or energy to spend to try to change the status quo, nor do many even realize how low the status quo is in Virginia. The result is a culture of acquiescence . . .
  • “There is no question that attorneys who are juggling four, five, eight defendants in one morning, and hoping to plead them out that day, are doing virtually nothing for their individual clients.”
  • “Utilization of an expert requires time and effort: research must be done in order that an expert will be useful, a motion for an expert must be prepared and argued, and if approved, an expert must be located and time will be spent working with the expert. “Many court-appointed lawyers in Virginia never put this sort of effort into their cases.”

Two years ago, a New York study found:

“Notwithstanding the valiant efforts of many lawyers, too many of New York City’s poor are receiving thoroughly inadequate legal representation in such important court proceedings as those relating to child custody and visitation, child abuse and neglect, termination of parental rights, domestic violence, and criminal prosecution, often with serious adverse consequences.”“The outmoded, underfunded, overburdened, and organizationally chaotic system in operation today dishonors New York’s long-standing commitment to an individual’s right to meaningful and effective representation, often with devastating effects on the thousands of children and indigent adults who pass through that system each year.”

In 1997, an ABA study discovered that “In child abuse and neglect cases, the legal representation of parents, children, and child protection agencies is often seriously deficient,” with many lawyers apparently not understanding that “diligent representation” included obligations such as “to meet with clients well in advance of each substantive hearing, to investigate disputed facts, and to be present in court.” (See American Bar Association President N. Lee Cooper’s Challenge to State and Local Bar Organizations on “Improving Legal Representation in Cases Involving Children, Youth and Families” February 1997; and take a look here for more studies with similar sad conclusions.)

I agree that lack of money is an important source of the problem in the programs established to provide legal representation to the poor across this nation. And, I readily acknowledge that there are a large cadre of assigned counsel who care deeply and provide excellent service under impossible conditions (I tried to be one of them). Many others provide uninspired but fairly competent legal representation. But (and I know I’m going to anger a lot of folks), this much seems clear to me after years observing and participating in the assigned counsel system:

  • – many assigned counsel make no meaningful effort to provide meaningful, diligent representation
  • – a very large percentage take assigned cases solely because they have no other sources for clients
  • – they have no other sources because they do not have the respect of their colleagues, judges, or former clients
  • – they are unlikely to work harder if pay levels are increased, and may even do less per case
  • – local bar associations often oppose creating better-organized, and more effective institutional entities to provide legal services to the poor, because private practice attorneys fear losing the work, despite all their cries of being scandalously underpayed
  • – disciplinary committees totally avoid these issues of competence and diligence
  • – the mainstream bar holds its nose and pretends the ne’er do wells don’t exist

What percentage of assigned counsel fit my very negative picture? Of course, I can’t say for sure, but it’s certainly at least 20%, and probably a significantly larger figure. Too damn many of them.

The public doesn’t want to pay more to improve this system. Responsible lawyers need to act to assure more funding and better organization. They also need to take some of these cases.

Postnote (02-04-04): Ken Lammers at CrimLaw offers some practical suggestions for improving indigent representation in Virginia this morning. Put Ken in the column of assigned counsel who care.

Postnote (02-05-04): Carolyn Elefant at MyShingle has quite a bit to say today about assigned counsel pay and how to improve the system.

Postnote (09-04-04): David Feige has a thoughtful column at Slate: “Public Offenders’: Why criminals in Massachusetts are getting out of jail free.” He says only a comprehensive public defender system, not one relying so heavily on assigned counsel will provide adequate service.

Postnote (Jan. 31, 2006):  See our post “NYS Chief Judge wants statewide public defender system,” and the 2005 ABA report on indigent defense, Gideon’s Broken Promise, which states that national standards for indigent defense favor fulltime public defenders, whenever the population and caseload can support them.

NJ Court Won’t Apply Consumer Fraud Act to MDs & JDs

Filed under: pre-06-2006 — David Giacalone @ 4:12 pm

law’s a beach in NJ


Consumer fraud laws do not protect New Jersey patients or clients from fraudulent advertising, according to an opinion released by its Supreme Court.  An article in Newsday reports that the Court refused to apply the 40-year old statutue to doctors, lawyers and other learned professions, who “were not permitted to advertise at the time the law was enacted.”  (“N.J. Supreme Court says doctors can’t be sued for consumer fraud,” February 3, 2004) (Thanks to Legal Reader for the pointer, and especially to Jurist Paperchase, for adding links to the Act and decision.) 


It’s time for New Jersey’s legislature to stand up to medical and legal lobbies and clarify that the Consumer Fraud Act reaches doctors and lawyers.  Until then, legal clients are left under the protection of some fairly sleepy watchdogs.   According to HALT’s Report Card on the NJ discipline system, bar counsel investigate less than half of complaints made, and complainants are under a strict “gag rule” prohibiting discussing a complaint with anyone.   Despite getting good grades for holding open hearings, lawyer discipline in NJ got an overall C- for a grade, 27th in the nation.


In addition, you may remember from our post last September, that New Jersey RPC 1.1, the State’s ethical rule covering Competence, is considerably weaker than the Model Rule on Competence.  NJ won’t brand lawyer performance as incompetent unless it amounts to “gross negligence” or  a “pattern of negligence.”   My tip for legal consumers in NJ: pray for luck when choosing an attorney.

  • Extending consumer fraud statutes to lawyers in state’s that exempt them from coverage is a major goal of the legal reform group HALT.  Read about their activities in this area here.

Becoming a Partner-Rainmaker-Supervisor in D,C,

Filed under: pre-06-2006 — David Giacalone @ 1:00 am

Today’s edition of Legal Times has a cluster of articles about becoming a partner in BIGLAW Washington, DC., “New Partners: The Chosen” (02-03-2004).  The intro summarizes the climate in the Nation’s Capital:

“Litigators, corporate lawyers and intellectual property specialists were most likely to make partner this year at Washington, D.C.’s biggest firms. Increasingly, though, firms are using counsel as an intermediary step and stretching out the partnership track to eight years or more. Nor does getting the nod mean you’re home free — new partners face new pressures to land clients, supervise others and market themselves.”   

mouse lawyer . . mouse lawyer small

The most useful section, “From Peer to Supervisor,” by Holly English, 02-03-2004, explains why it’s important to become a good supervisor and gives some pretty good tips.  In Let It Rain,  Legal Times special reports editor Jenna Greene lets seven D.C. rainmakers tell how they landed their first clients. (Just how hard can it be to attract your first client if you just left the Department of Justice as the head of its Antitrust Division?)

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