Money or justice: must we choose?

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Published on 3/17/08

I firmly believe, and have often written, that a lawyer must make an adequate living at his practice before making a meaningful pro bono effort. Two recent articles in California's legal press set parameters on what this means as a practical matter.

The first was an article suggesting that public defenders who choose to strike betray the constitutional rights and liberty of their clients. I was angered at the implication that public defenders owe more to society than other lawyers, public officials or average citizens.

The reasoning seemed to be that becoming a government employee, a public defender, means that one's human and normal rights are checked at the door.

Yes, lawyers do have certain rights and responsibilities that are not required by others, including that all lawyers owe a pro bono obligation to society.

But that doesn't mean public defenders should forego adequate compensation, any more than it means that corporate America should forego executive compensation set by market forces as a gesture to customers and shareholders.

Why should the one group be restricted in its right to higher compensation while the other is lavished on its job severance with golden parachutes of ungodly riches?

Why should public defenders not be entitled to come together as any other group of employees in order to seek better conditions of work? If they were to organize, as some have, no one should reasonably believe that there is a violation of citizens' constitutional rights.

It is the responsibility of government and its citizens to make sure that defendants receive the best possible representation by compensating public defenders fairly and with at least some reference to the compensation generally received in private law firms.

A second article, however, showed the extremes to which this argument should not go. A profile of California's "Top Neutrals" detailed the very high prices demanded and commanded by these triers of fact. They range from a low of $400 per hour to the upper reaches of $12,000 per day.

I have yet to hear a complaint about these rates. Years ago, our system of independent neutrals developed because of changes in the judiciary's retirement system that caused economic pain to judges who remained on the bench.

This has created a separation of the rich and poor before the law. The poor folks had their matters heard by the judiciary, paid by taxpayers. The rich had their matters heard more quickly by independent neutrals, paid by the parties. Independent neutrals who work full time earn far more than judges.

Our system of justice suffers when economics play such a dominant role in the determination of disputes, when the poor receive different treatment than the rich. It's bad enough when the rich can afford to gather a "dream team" for the assertion of their claims; but it's outrageous when economics can determine who will be the trier of the facts.

In law and in society, the need is for balance, allowing compensation at a level that supports quality representation without perpetuating the idea of greedy lawyers making more money than anyone reasonably should.

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