Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

November 17, 2007

Forced Employment For Lawyers In Arizona

by Doug Mataconis

On Thursday, the Ninth Circuit Court of Appeals ruled that the State of Arizona has the right to force attorneys who practice there to preside on arbitration panels at incredibly reduced rates:

A federal appeals court on Thursday upheld an Arizona court rule requiring lawyers to serve as arbitrators on some civil cases with little pay, even if they object.

The ruling by the 9th U.S. Circuit Court of Appeals in San Francisco came 10 years after tax attorney Mark V. Scheehle of Prescott Valley objected to being forced to serve as an arbitrator in a civil case in Maricopa County, a duty required of Arizona lawyers.

Scheehle argued the rule was an unconstitutional “taking” of property by the government without just compensation.

The appeals court rejected the argument, referring to an earlier case where it ruled that “courts have long recognized that attorneys, because of their profession, owe some duty to the court and to the public to serve without compensation when called on.”

(…)

Arizona requires lawyers to arbitrate civil disputes valued at under $65,000. The attorneys are paid $75 per day, without being reimbursed for expenses. They are not required to take new cases in a given year if they have served two or more days.

Just for reference $ 75 per day pays for maybe 15 minutes of the average attorney’s time at standard hourly rates.

This is an issue that’s been discussed among attorneys in the past. On more than one occasion, the American Bar Association has proposed that all attorneys in the United States be required to provide a set number of hours of pro bono (free) legal representation to the public, whether they want to or not.

Leaving aside for the second the absurdity of a lawyer who has spent his career practicing tax law attempting to arbitrate a civil dispute (contrary to what you might think, just because you passed the bar doesn’t mean you know everything about the law), or a real estate lawyer being forced to provide pro bono legal representation to a guy charged with marijuana possession, whatever happened to the idea that an individual owns himself, his time, and his skills ?

Yes, the legal profession may be licensed by the state — and we can argue over whether that’s a good idea another time — but so are hairdressers and plumbers. Do you hear anything about plumbers being required to fix toilets for free ? Didn’t think so.

Why should someone who wants to practice law in the State of Arizona be forced to engage in labor for the state at a rate of compensation that  barely recognizes the level of skill of person involved ?

Lawyers may be officers of the Court, but they shouldn’t be treated like slaves of the state.

H/T: Kip Esquire

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  • http://unrepentantindividual.com/ Brad Warbiany

    So you’ve got a problem with forced employment?

    Well, (Insert lawyer joke here)!

  • Akston

    Weren’t you aware that the productive efforts of lawyers are a national resource?

    Like doctors, lawyers spring from the ground and ripen to a wholesome goodness under the warm embrace of the sun and gentle rain. Any passer-by, in need of legal representation or medical care, can simply pluck that ready resource from the office from which they’ve grown.

    After all, it’s not like these are professions that require years of training and expense like any other.

  • Quincy

    Do you hear anything about plumbers being required to fix toilets for free?

    I’d find that funny if there weren’t a sizeable contingent of statists that would take such an idea seriously.

  • UCrawford

    My suggestion for how lawyers should deal with it would be passive resistance. Basically, just do a shitty job on cases where you’re not paid and the state forces you to serve. I realize that this theoretically puts poor people who actually need help at a disadvantage, but it’s not like they’re generally provided with excellent legal counsel by public defenders anyway and I’d rather that our government just dispensed with the myth that they are. I’ve long suspected that the reason that so many vague and screwy laws get passed is because the government promises everybody a lawyer free of charge, which in many peoples’ minds basically negates the need to pay attention to or bitch about bad laws being passed. If you want poor people to understand why government assistance (and free legal representation is government assistance) doesn’t work, show them clearly what kind of quality they get when they don’t pay.

  • http://www.belowthebeltway.com Doug Mataconis

    Crawford,

    The problem with your suggestion is that lawyers have ethical obligations that would make a strategy like that problematic.

    Deliberately messing up someone’s case — especially a criminal case, which is where public defenders exist (there is, to my knowledge no state that provides free legal representation to poor people in civil cases) — would mean losing your license to practice.

  • UCrawford

    Doug,

    I understand that you have ethical obligations, but there’s a reason for this.

    First of all, if somebody decides to do pro bono work for indigent clients on their own, fine, I’ve got no problem with that. That’s private charity and as I understand it a lot of firms actually engage in it, as does the ACLU, the Institute for Justice and any number of other organizations. The problem is that once the government mandates it, it becomes theft…theft of your services, theft of your time, theft of your skills. The indigent client, by choosing to accept your services, is therefore a party to that theft. And I find it something of a fallacy to claim that somebody who participates in or abets theft has ethical standing to benefit from that theft.

    Secondly, I think my argument about free representation in criminal cases still stands. It creates a cushion which lessens the incentive to change bad law. People who can’t afford attorneys don’t need to care because fuck it, the state will provide them a lawyer if they get caught. People who can afford attorneys don’t need to care because fuck it, poor people get at least minimal representation if they get caught so why bother? Who cares if it’s all a sham? It’s like the open immigration vs. the welfare state argument…only when people are no longer insulated from the consequences of bad laws will they work to change those laws.

    Third, I understand your argument and agree that whoever engaged in that proposed strategy would likely suffer for it, and I wouldn’t expect any kind of open movement like that. My point is, however, that whenever the state mandates that an attorney provide their services to indigent clients without sufficient reparations what I’m proposing is often going to happen anyway…the attorney will dedicate as little time and effort to the case as he thinks he can get away with so he can focus on the clients who pay his bills, poor people will still be put at a disadvantage in the legal system, yet now we have this rationalization not to have to rock the boat and change bad or confusing law so it actually promotes (or at least respects) individual rights because of the myth that everybody has a fair chance under our system.

    I guess I’m just saying that I’d really rather everybody not engage in the hypocrisy of claiming that it’s otherwise and that our government dispensed with the illusion that they’ve made the legal system equal for everybody by providing a bad system of legal representation.

  • http://www.belowthebeltway.com Doug Mataconis

    Crawford,

    You and I generally agree on the first point — just keep in mind that other than this Arizona requirement there is no state in the Union that requires mandatory service of any kind by lawyers.

    Second, I’m not sure I agree that free legal representation encourages bad law. What laws are you think of, specifically ? More importantly, though, the Sixth Amendment provides that criminal defendants are entitled to be represented by counsel — how do you deal with the issue of poor people accused of crimes who can’t afford to pay for an attorney ?

    Third, on some level you’re right about that.

  • http://libertarianwiki.org/User:Thane_Eichenauer Thane Eichenauer

    I fail to cry much for the lawyers as even at $75/day that is still 6 times as much as they pay people for jury duty in Arizona (which is $12/day according to the Arizona Supreme Court web site). Laws establishing slave juries aren’t any worse a pox nor any better than the rules making slave lawyers.

    Even if you swallow the idea that lawyers don’t “know everything about the law” doesn’t mean you should swallow the idea that lawyers who pass their test know less about the law compared to those of us who didn’t pass the bar test.

    Darn government judiciary employees think they can mooch labor and not pay for it.

    I appreciate the notice about slave arbitrators. Should I ever need arbitration I would certainly be interested in knowing whether the arbitrator was coerced into performing. Just goes to show you there isn’t anything government can’t screw up, even supposedly non-government courts.

  • http://dangerouslyidealistic.blogspot.com/ UCrawford

    Doug,

    On the second point, I wasn’t saying that things like this lead to the creation of bad laws, I was saying that they remove an incentive to change bad laws by insulating people from the consequences of those bad laws.

    To make my point about the system of free representation, let’s look at where the heaviest burden falls. It generally falls on the poor because our legal statutes are complex enough that nobody can realistically represent themselves in criminal court and expect to win. They can’t just point at the Constitution and say, “The cops have no right to break into my house on a no-knock warrant based off evidence from a snitch because that represents an unreasonable search which the 4th Amendment prohibits.” You have to cite precedent (which most poor people aren’t going to have the time or resources to research on their own), you have to argue your case in a court regulated by complex rules of procedure (which any non-lawyer is likely going to have a lot of trouble navigating), and you have to be able to do the first two while putting together a presentation in a manner that can win over a jury of people who often don’t understand or space out on the technicalities but who can be swayed by a charismatic person spouting complete bullshit (John Edwards won his biggest case against a drain company using such tactics). Basically, unless you have a good attorney, you’re often screwed, and whenever you have a system of free representation that involves forcing attorneys to manage a case that they may not have sufficient time to handle against their will you pretty much insure that the indigent client will not legal advice that is compromised in some way, even if the lawyer isn’t just blowing the case off and even if the laws those poor people are being prosecuted under are complete bullshit (e.g. drug laws). Poor people generally understand this, I’m pretty sure. The problem is that they usually have little or no ability to improve their situation by hiring a better attorney or, more importantly, influencing a legislator to convince them to change the laws because they’re unconstitutional and unduly harsh. Poor people recognize the system is flawed, but have little to no capability to change the system.

    The flip side of this is the people of means who do have the capability to change the system. People can often be swayed by emotional arguments or take notice of situations when the human cost becomes substantial. When a situation is bad enough (like with Iraq) they’ll very often take steps to rectify the situation (like voting the incumbent party out of Congress in the hopes of forcing change). But people, in my experience, also dislike too much change, and are often willing to live with a bad or unfair situation as long as they’re given a rationalization not to change it. With state-run free representation for indigent clients they have that rationalization. Most people watch TV and read the news to some extent. They realize that poor people get shafted. But on the other hand they can tell themselves that since the poor do get some representation in our system (albeit bad representation) and the taxpayers are subsidizing it, they don’t need to feel guilty enough about it to talk to their legislators and force changes in the laws that may somehow fuck up their own lives. And, let’s face it, they’re especially not so willing to make changes in their own more comfortable lives for a group of poor people who aren’t always the most likeable or endearing folk (drug dealers, addicts, prostitutes, most of the homeless). Basically, because we’ve thrown the dregs of society a few scraps (with free legal representation) the people with the capability to change things no longer have an incentive to do so because the visible human costs of bad laws aren’t as visible to them or because their guilt is assuaged by government-run charity that doesn’t actually fix anybody’s problems (and often, in fact, makes those problems worse).

    It’s that whole destructionist school of thought thing that I follow. “Free” state-sponsored legal representation enables the continuation of bad legislation because it shields the people who can change the system from the consequences of that system and it often keeps people who have an incentive to change the system from being able to do so. That’s why I was saying that the best possible thing attorneys can do to benefit the legal system in a situation like the one you cited is to simply do a shitty job on the cases that they’re forced to take. When the rationalization not to change is lessened or removed, the incentive to change things for the better increases. Plus, as I said in my last point, this is often what happens anyway…my suggestion is merely about removing the facade.

  • http://dangerouslyidealistic.blogspot.com/ UCrawford

    The short answer to your question, Doug, (how do you deal with people who can’t afford lawyers) is the same as my answer to how you deal with the homeless or anybody else. Private charity. It’s been established a few times on this site that once government starts engaging in their own perverse form of “charity”, private charity decreases (because people have less incentive and less means to donate willingly). Remove government-sponsored lawyers from the equation and I suspect you’ll see an increase in donations to groups like the ACLU and the Institute for Justice (as well as more pro bono work from private firms).

  • http://dangerouslyidealistic.blogspot.com/ UCrawford

    And as an added bonus you may even see a few bad laws go by the wayside. :)

  • http://thomasblair.livejournal.com Brian T. Traylor

    UCrawford,

    It’s been established a few times on this site that once government starts engaging in their own perverse form of “charity”, private charity decreases (because people have less incentive and less means to donate willingly).

    I made this case to a friend a week ago, and I was wondering if you happened to know where on this site such arguments were made. I ask only because you are a contributor and may know right where to find it.

  • http://dangerouslyidealistic.blogspot.com/ UCrawford

    Off the top of my head I don’t. I’d check the subject tags to see if there are any articles that address it specifically, but most of the time as I recall it was brought up in conversations about other topics.

    The Cato Institute has written a few articles about this topic, however…they’re probably a more reputable source to cite than the Liberty Papers when you make arguments with your friends, since they generally tend to research their articles more heavily than we do (I’ve used them as a citation before on my own blog). Here’s a few links to stuff I found from them in a quick search.

    http://www.cato.org/pub_display.php?pub_id=1501

    http://www.cato-at-liberty.org/2006/06/14/voluntary-charity-vs-government-charity/

    http://www.cato.org/pub_display.php?pub_id=6286

    Reason Magazine also hits this topic from time to time so you might skim their archives.

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