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O Lawyer, Where Art Thou?How law firms are failing New Orleans.

By Lisa Lerer
Posted Friday, July 6, 2007, at 7:21 AM ET
Orleans Parish Criminal Courthouse in New Orleans. Click image to expand.

Law firms are the cavalry of the legal world. Disaster strikes, and the firms, with their thousands of lawyers and millions of dollars, ride into town to clean up the mess.

But what happens when the cavalry doesn't show?

That's the situation in New Orleans, where almost two years after Katrina, the criminal-defense system is still in a state of emergency. Public defense was never the city's strength: When the levees broke, there were about 7,000 criminal defendants waiting to see a state-appointed lawyer. Immediately after the storm, the city jailed roughly 5,000 of them, many on shaky legal grounds. Most remained locked up for over a year before speaking with a lawyer. The public defender's office is slowly working through the backlog, but is still overwhelmed. It's a situation public defenders bitterly call "Gitmo on the Bayou."

In response to the crisis, more than 2,700 law students traveled to New Orleans and the Gulf Coast, on trips a bit reminiscent of the famous civil rights freedom rides. The students do just about everything but appear in court, including interviewing defendants and collecting evidence. Public defenders from different parts of the country took sabbaticals from their day jobs to come down as well. But however welcome, this is as effective as washing the bathroom floor with a toothbrush, say New Orleans public defenders. Eventually, you'll clean up the mess, but a mop could take care of the problem a whole lot faster. The law firms are far stronger and richer than anyone else in the legal world. Why aren't they helping the Bayou's criminal-defense bar recover?

To be fair, big law has done a lot for the region. Firms donated thousands of hours to the legal rebuilding effort, sending lawyers down to help with FEMA appeals, small-business recovery, and Road Home grants. The Mississippi Center for Justice, a Jackson-based nonprofit founded in 2003, convinced 19 law firms to donate 8,100 hours last year, adding up to a value of $3 million.*

Most of this work, however, has been on civil matters. Generally, it makes sense for law firms to concentrate on helping with civil suits, because criminal defendants have a constitutional right to representation. Remember Gideon? The 1963 Supreme Court case ordered states to pay for attorneys for poor people accused of crimes, making pro bono work on their behalf relatively superfluous. The flip side of state-funded defense, however, is that when it fails, firms aren't prepared to help pick up the pieces. For poor litigants in New Orleans, that often means waiting months in jail before even meeting a lawyer.

It's the systems firms use to efficiently donate legal hours that hold them back from effectively helping criminal litigants. The idea of an organized firm pro bono program started gathering steam about 15 years ago. In 1993, the American Bar Association revised its Rule of Professional Conduct to describe donating 50 hours of free legal work a year as a "professional responsibility." The Pro Bono Institute at Georgetown University Law Center challenges firms to donate either 100 hours per attorney or an amount of time equal to 5 percent of the firm's total billable hours. More than 150 large firms have signed off on the standard.

That doesn't mean they meet it: According to the American Lawyer's 2006 pro bono survey, only about 37 percent of law firm attorneys at the 200 biggest firms did at least 20 hours of work last year. Still, even if the firms miss their pro bono goals, most consider setting them good for business. A strong pro bono program is a recruiting hook for top law students and junior lawyers, who give more weight to pro bono in deciding where to work than they used to. Industry publications, like the American Lawyer's A-List, include pro bono in their ranking criteria for firms.

Today, at most big firms, pro bono works like a well-oiled machine. Many have pro bono coordinators or partners working full time to vet projects and match them with the appropriate lawyers. The firms generally expect the public interest providers to present packaged, clear projects with a set scope and time frame. Firms will go far for the most desirable cases. As the Wall Street Journal recently reported (subscription required), some donate money, office space, or clerical help to nonprofits in return for the first crack at interesting legal matters. Lawyers Without Borders Inc. requires an upfront donation of $7,500 a year before it gives firms access to the best cases.

But if the cases don't fit the traditional format, firms won't touch them. And firms generally feel most comfortable doing the kind of work they know best. Hand them a real-estate dispute, small-business negotiation, or intellectual property problem, and they'll come at it with a flurry of paper and army of suits. But dealing with drug charges, petty thefts, and assaults? Not so much. Also, it takes lawyers to get lawyers. Even in the midst of legal chaos, firms want a fully developed plan of action. If a firm is going to take on a criminal case, in a district with different laws, it wants assurance that its lawyers will be heavily supervised. No firm likes a malpractice suit. And no lawyer wants to give any client—whether paying or not—bad legal advice.

But just as the fire department doesn't create a spreadsheet while the house goes down in flames, in New Orleans, there's no legal master plan and almost no one to oversee the volunteer defense lawyers. Orleans Parish lost almost all of its public defenders after Katrina, plummeting from about 40 to fewer than 10. In 2006, a Department of Justice report obtained by the Los Angeles Times recommended 70 full-time public defenders. With the city in a perpetual state of legal panic, no one has time to package up projects for firms. Also, since it takes weeks to learn how to navigate the dysfunctional system, volunteers ideally need to stay for several months. Firms are willing to send down lawyers for a week or two, but they won't give up a client-serving body for months on end.

In other cities with more developed pro bono infrastructures, nonprofit middlemen negotiate this kind of culture clash. For example, nonprofit groups like New York Lawyers for the Public Interest coordinated much of the legal response after 9/11. But in the Gulf Coast, there's no one to play mediator and no great pro bono force to spearhead a shift from civil to criminal work.

So, what can a Creole-loving firm do? Taking the small cases may be tough for firms, but challenging the entire system wouldn't be. Firms are great at impact litigation. Be it a suit against a city, state, or large public institution, firms have pushed the law forward in amazing ways through large-scale litigation. They can do the same in New Orleans. The current system raises some serious constitutional questions. For starters, poor litigants get no representation between the time bail is set and weeks later when the district attorney's office decides whether it will take the case to trial. Public defenders are funded largely by court fees—money paid by the indigent defendants themselves when they're convicted. Two New Orleans criminal court judges found the funding system unconstitutional, but the case has yet to be presented before the Supreme Court.

Another way firms could help: They can fund a New Orleans pro bono coordinator, in the way that they regularly sponsor public interest fellowships. The coordinator could work full time packaging the projects and rallying the law firm troops. The firms could get projects suited to them, and the city's defense lawyers could spend their time doing their jobs. The cavalry, it seems, might just need a good scout.

*Correction, July 6, 2007: The original sentence incorrectly stated that 19 firms donated 810,000 hours. (Return to the corrected sentence.)

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Lisa Lerer writes for the Politico.
Photograph of the New Orleans courthouse by Alex Brandon/AP.
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Remarks from the Fray:

I think the big reality that this article overlooks is that the attorneys were, in fact, also impacted by Katrina. I am an attorney in New Orleans. My firm is very small - two partners, two senior associates, four juniors. Out of those attorneys: one is still in a FEMA trailer waiting on his house to be rebuilt, one is living with her parents, son, three brothers, and four nephews in a three bedroom house, and one finally got to move into her house last month.

We just got the files from our old office back from the "reconstituting" service two months ago. Approximately a third of our files couldn't be salvaged. We're still trying to track down parties, witnesses, opposing counsel, and yes, clients. Getting paid by clients is like pulling teeth, and a lot of the big businesses are moving to greener pastures. […]

Expecting attorneys to volunteer their time to shore up a crumbling system is not only naive, it's also a quick, temporary fix to a larger problem. In order for the system to work correctly (and lets be honest here, it was never a hotbed of efficiency) there has to be a change in the system itself. Right now, revamping the criminal justice system doesn't seem to be too much of a priority for the City. Depressing, but true.

Sure it would be nice for the larger firms to join together in a large display of philanthropy and donate time and manpower to the city. It would also be nice if Entergy New Orleans would stop doubling my electric bill every month to cover the cost of their bankruptcy. What are the odds either is going to happen?

--Starchasm

(To reply, click here.)

I have been working with a dedicated and talented group of volunteer lawyers who have been helping hurricane victims get back on their feet by resisting efforts by the federal government (FEMA in particular) to seek repayment of disaster aid. Some 60,000 hurricane victims have received so-called "recoupment notices" in the last six months. Many of these people live at or near the poverty line, and received a few thousand dollars in emergency assistance and other aid after Katrina.

The GAO reported that FEMA mismanaged (read: lost) approximately $1 billion in aid money after Katrina. Rather than conduct an audit, FEMA is engaging in a scorched-earth policy, essentially turning due process on its head and demanding aid recipients to prove that they are not crooks.

Pro bono attorneys from large firms nationwide, working closely with Mississippi Legal Aid, recently won a huge victory in Federal Court. FEMA is enjoined from further collection activities until it comports with due process.

Meanwhile, those of us 'in the trenches' continue to fight for individual clients. The going is slow but steady, and the tide appears to be turning in our favor.

It's too bad that this situation hasn't garnered the sort of media attention that it deserves - FEMA making victims of Gulf Residents all over again.

--KaizerSozhe

(To reply, click here.)

While I'm generally in favor of pro-bono, and of lawyers doing more of it, I don't think that pro-bono is a realistic answer to New Orleans' criminal courts problems. It's like charity, it is a fine thing and does much good -- but it can't replace substantial government programs like Social Security and Medicare. Private charity can fill in small holes and help around the edges, but the "meat and potato" is provided by the government.

The New Orleans criminal court system, and in particular its PD practices, were broken badly *before* the hurricane. So it is not a matter of 'returning to normal.' New Orleans needs to build up a radically different system. Alas, there is little to no political will to do so. Why should attorneys volunteer to help a system that has always been broken and that no one is going to bother fixing? At what point is the attorney not really helping, but rather just "enabling" a broken system to limp along?

Never mind that New Orleans PDs don't get paid much. They aren't even hiring. I've been enquiring about doing criminal work in New Orleans, and have been informed that even the prosecutors' offices aren't hiring. They have no money, and apparently the local/state political elite believes that if they don't do anything the federal government will step in and do it for them. (Similarly, the National Guard is now apparently performing many civic functions like police and medical support). They don't want "pro bono" -- they want things to be so bad they get hypothetical mountains of federal cash. There is not apparent effort to "fix" anything. Instead the question is how to "fund" the dysfunctional system they had before.

Private attorneys are desperately competing for the limited/reduced pool of paying defendants—not someplace to 'hang your shingle' for a criminal defense specialist. In addition, part-time criminal attorneys who do court-appointed work are of the opinion that more "pro bono" just means less cases they get paid for. No one thinks it will be used to reduce backlog, etc.

I have been seriously looking into moving to New Orleans, but basically the 'vibe' I get is that the city really does not want/value the criminal justice system. I wish I had enough money to just move there and let things develop, but alas the economics of criminal practice do not normally allow such things. Sure, every jurisdiction dreams of having people come in and do all the work for free. But let's be realistic, pro bono is not going to solve New Orlean's problems.

--fozzy

(To reply, click here.)

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