In America You Can’t Buy Justice. But You Can Rent It.

In our final Law Governing Lawyers class, we had an extended discussion of proposed ABA rules strongly encouraging—if not requiring—minimumpro bono work by members of the bar (or law school students). What prompted this was our reading on the unmet need for legal services.  Among the indigent, those seeking immigration or asylum, and the mentally ill, legal services are virtually unobtainable. 

This is especially true for civil actions; at least in criminal actions an attorney can be appointed for an indigent client.  Civil representation for disadvantaged clients, in contrast, is often unaffordable.  When they can afford it, the lawyer is usually one whose entire client base is barely able to afford any fee.  Such attorneys mean well but be struggling with humongous case loads and limited resources.  My basic legal processes are infeasible for them, especially a thorough investigation or discovery.  While trying to help so many in need, they may be unable to provide any client with truly competent or adequate representation. 

Legal clinics (such as our own venerable Marquette Volunteer Legal Clinic) try to fill the gap, but often such clinics can only offer advice and direction.  They cannot or do not provide representation.

Against this backdrop, the ABA House of Delegates has considered and rejected changes to Model Rule 6.1 that would require lawyers to provide at least 50 hours of pro bono work per year, with a relatively cheap hourly buy-out.  There are of course, always mechanistic complaints: how would compliance be recorded? how would the requirement be enforced? what would the penalty be?  These can be worked out.

The real problem seems to be other complaints that are more philosophical.  What can a lawyer accomplish in 50 hours per year?  Would forced-labor representation be substandard?  Shouldn’t lawyers be able to avoid practicing in skill-areas they don’t want to practice in?  And why are we picking on lawyers?  Do doctors or plumbers have to do pro bono work?

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Wisconsin Court Affirms Arbitration Award of Reinstatement

In a very interesting decision by the Wisconsin Court of Appeals last week, the Court upheld an arbitration award against the large household goods store Menard’s for employment discrimination against, wait for it, its own in-house lawyer.  As reported in the Milwaukee Journal Sentinel,

Menard Inc. must reinstate a woman it fired as vice president and general counsel over a pay dispute, 3rd District judges for the state Court of Appeals said in a decision released Tuesday.

Dawn M. Sands filed a lawsuit in Eau Claire County citing the Equal Pay Act, Title VII of the Civil Rights Act and the Wisconsin Fair Employment Act. She claimed gender-based pay discrimination, asserting that similarly situated male employees were paid more.

A three-person arbitration panel found in her favor and awarded compensatory and punitive damages. The panel also ordered Menard to reinstate Sands with a specific salary and bonus. Menard balked and asked the appellate court to overturn an order by Eau Claire Circuit Judge Paul J. Lenz that had upheld the arbitration panel.

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Supreme Court Determines That Traditional Stay Continues to Be Available to Aliens Appealing from Removal Orders

As I blogged about previously, in January the United States Supreme Court heard oral argument in the case of Nken v. Holder, which raised the question of whether the 1996 amendments to judicial review provisions that removed the automatic stay of deportation pending appeal had replaced the automatic stay with a traditional stay standard or a heightened, extremely restrictive standard, one that almost never would allow a stay.

Today, in a 7-2 opinion authored by Justice Roberts, the Court announced its decision in favor of the alien, determining that the disputed 1996 statutory provision did not take away the appellate courts’ traditional stay power in appeals pending deportation.

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