innocence blog

A Web log for the Innocence Institute of Point Park University

Monday, September 26, 2005

Tipping scales in court

AND JUSTICE FOR ALL
In getting lawyer, wallet size matters
By John Heinz
Published September 25, 2005

The ideal of equality under the law--of equal treatment for rich and poor, powerful and oppressed--is often proclaimed, and courts and other legal institutions sometimes proceed as if it is a reality. But the pursuit ofjustice usually requires the services of a lawyer, sometimes several, and the skill and caseload of the lawyers often determine who wins and who loses. In 1968, the U.S. Supreme Court affirmed Leroy Powell's conviction for public drunkenness, even though he was a chronic alcoholic, because he had ahome and a wife and he could have chosen to be drunk at home instead of inpublic. Justice Byron White, concurring with the result, said: "For some of these alcoholics [homeless ones], I would think a showing could be made that resisting drunkenness is impossible and that avoiding public places when intoxicated is also impossible. "Last year, the California Court of Appeals heard just such a case, reviewing the conviction for public drunkenness of a homeless, hopeless alcoholic named Kellogg. One of the California judges observed: "Research has not revealed any cases [after Powell] that address the issue of whether a chronic alcoholic who is involuntarily homeless can be convicted of public intoxication ... The issue in this case appears to be one of first impression in the state and federal appellate courts. "Given Justice White's comment, why was there, for 35 years after the Powell decision, no test case in an appellate court challenging the government's power to punish homeless alcoholics with a criminal conviction instead of a civil commitment?
Answer: Homeless alcoholics are among the most impoverished, most powerless of our citizens. Where were their lawyers? There weren't any. There is no money in it. Even public interest lawyers have other priorities: death penalty cases, abortion, the medical use of marijuana. Who gets lawyers' services? We have some answers from hour long interviews with Chicago lawyers--more than 800 interviews from 1995 and earlier 800 interviews from 1975, both conducted by teams from the American Bar Foundation. The lawyers tell us that in 1995 corporate work commanded 64 percent of the time of Chicago lawyers, while work for smaller clients got only 29 percent. Twenty years earlier, corporate work had received a bit more than half. Lawyers' incomes depend on the types of clients they serve. Corporate lawyers get rich while slip-and-fall lawyers struggle. Indeed, law is said to be the profession with the most income inequality. In 1975, the top 25 percent of Chicago lawyers earned about 54 percent of thelocal bar's total income, while the bottom quarter collected 9 percent.
By 1995, the gap between the top and the bottom had widened further; the bottom quarter's share of total income fell to 6 percent while the top quarter's share increased to 61 percent. In constant (1995) dollars, the average income of lawyers in the bottom quarter actually decreased from $43,231 to $33,816, but the average in the top quarter rose from $266,733 to $325,050. So by 1995 the average lawyer in the top quartile of the income distribution earned almost 10 times as much as the average in the bottom quartile. These people are all called lawyers, but they are not in the same line of work. Legal scholar Karl Llewellyn said 70 years ago that "the practice of corporation law ... develops within itself a business point of view toward the way in which to do the work. "Even he would probably be surprised at how true this is today. Lawyers' ethical rules still prohibit non-lawyers from owning law firms, but they do not prohibit the law firms from owning other businesses. These ancillary businesses are sometimes extensive. The Holland and Knight lawfirm, based in Florida but with a Chicago office, owned nine subsidiaries as of 2001, including a detective agency, a firm that provides environmental consulting, a money management firm and a real estate firm.
Bingham McCutchen, a national law firm, owns a consulting firm that advises companies dealing with state regulatory agencies, another that advises small to medium-size companies on mergers and access to venture capital, and a third that is a joint venture with Legg Mason, a Baltimore financial services company, creating a money management firm. In one of its first advertising pieces, Bingham McCutchen characterized itself this way: "Dedicated to achieving your business objectives--Buildingon a proven track record in hundreds of high-stakes precedent-setting cases,we focus on what makes sense for your business and develop our strategy accordingly ... For issues that can't be predicted, we can help you quickly devise an effective and cost-efficient strategy, driven by your objectives and the realities of your business. "Note the emphasis on the lawyers' understanding of the client's business. The message is: These lawyers speak your language. And they do.
Shearman and Sterling, based in New York and one of the largest law firms in the world, distributed rankings that are called "league tables"because they resemble the obsessive statistics tabulating the performance of baseball teams. These tables list law firms ranked by some criterion, usually by the number or value of a particular type of transaction handled by the firms. The cover of one brochure read: "Shearman and Sterling is ranked among the top five law firms in more than 200 league tables published in 2000, more than any other law firm in the world. "Not surprisingly, the service that a client can expect from a lawyer who is paid $33,000 per year differs from that of the $325,000 lawyer. The odds are that the two were trained in schools that rank in different parts of the lawschool hierarchy, and their grades probably differed too. In 1995, 14 percent of Chicago lawyers were graduates of the top six law schools (Harvard University, Yale University, Columbia University, StanfordUniversity, University of Chicago and University of Michigan), but 30 percent of the lawyers in firms with 300 or more attorneys had attended those schools. Only 7 percent of lawyers in firms of two to nine attorneys and only 2 percent of those employed by government had done so. By contrast, four local law schools (Loyola University Chicago, DePaulUniversity, Chicago-Kent College of Law and John Marshall Law School) produced nearly half (45 percent) of all Chicago lawyers, two-thirds of the lawyers in firms of two to nine and in government employment, and only 17 percent of those in firms of 300 or more. In 1975, Chicago lawyers were asked this simple question: "How many lawyers are in your firm? "The average was 27. In 1995, the answer to the same question was 141. This is a stunning rate of growth. Of course, when the average was 141, some firms had five lawyers and others had 2,000. Ten years later, Baker & McKenzie, a global firm headquartered in Chicago, listed about 3,200. Clifford Chance, originally a British firm but now world wide, has 3,300. Law firms have become big business. Wealthy and powerful clients can afford superior service, while those with fewer assets may get inferior counsel or none at all.----------John Heinz, a professor at Northwestern University School of Law, isco-author of "Urban Lawyers: the New Social Structure of the Bar."