Ray Brescia: The Real Crisis in the Legal Profession Is Not Too Many Lawyers Defending Rights But Too Few.
By Ray Brescia
120 years ago, President Teddy Roosevelt called lawyers “hired cunning” who devised schemes to protect their wealthy clients. Roosevelt identified a crisis in the profession: that lawyers were neglecting the poor and the economically marginal in favor of big business.
President Trump is now also attacking the legal profession, but he seems to believe the exact opposite of Roosevelt: that too many lawyers support “liberal” causes, like protecting the environment, preventing homelessness, and representing immigrants facing unlawful deportation. In reality, the true crisis is not that there are too many lawyers to address these issues, but too few.
Trump’s targeting several large, private law firms is designed to punish them for his view that they have done him wrong in the past and deter lawyers from thwarting his agenda in the future. Despite the fact that what these law firms do with most of their resources is represent large corporations and wealthy individuals, another one of Trump’s stated justifications for these attacks is that these firms do not support conservative causes and clients enough and are, instead, providing a modicum of free assistance to non-profit, “liberal” groups.
For fourteen years, I worked in several such groups, where my colleagues and I provided free legal representation to low-income tenants facing eviction, workers who were denied wages under the law, and survivors of intimate partner violence. The one thing these clients had in common was that they could not afford a lawyer. If someone needed assistance and qualified for services because they could not afford an attorney, and if we had the resources to represent them, we would. We also never asked our clients about their party affiliation.
In reality, non-profit groups can only represent a tiny fraction of those who need and qualify for these services. While indigent defendants are guaranteed the right to counsel in many criminal proceedings, research from the federal U.S. Legal Services Corporation indicates that 92% of the civil legal needs of low-income Americans go unmet. These include veterans who have lost or been denied benefits, victims of human trafficking, families unlawfully denied food assistance, and seniors who might have a hard time navigating Medicare.
In truth, tens of millions of Americans cannot afford an attorney for even basic human needs like shelter, health care, and access to education. When lawyers do provide services to these individuals—and some of them who do are those working as volunteers from private firms, large and small—are those lawyers dedicating time to “liberal” causes, or are they just honoring their professional and, perhaps, moral obligations?
At the same time, if these are liberal causes, do conservative causes and clients really want for any legal services? In the wake of the victories of the Civil Rights Movement in the 1960s, the Conservative legal movement emerged, funded by some of the same donors who support a wide range of conservative causes, politicians, and political action committees. In the last fifteen years, this movement has rolled back reproductive rights and environmental protections, gutted the Voting Rights Act, kept our elections awash in big donor cash, and weakened the power of public sector unions. Those advancing these causes were never short on lawyers.
Perhaps Trump is feeling wronged because many of his past and current actions have been thwarted by prominent law firms. But he’s not the only president to find his policy agenda the subject of legal actions. Remember, the Obama and Biden Administrations faced relentless efforts to prevent some of their most important policy initiatives, like key elements of the Affordable Care Act and Biden’s student loan forgiveness plan, from going into effect. The attacks on these policies had no trouble finding lawyers to lead them in those conservative efforts.
While several of the law firms targeted by the president, like Perkins Coie, Jenner & Block, and WilmerHale, have challenged the president’s actions, more have capitulated to the president’s demands, agreeing to provide the equivalent of hundreds of millions of dollars in legal services to conservative causes. In this latter group, the law firm Skadden Arps has also agreed that it will reserve a portion of the coveted fellowships it awards each year to pay the salaries of lawyers fresh out of law school, who typically represent the poor, like tenants facing eviction, homeless youth, and children with disabilities, to instead go to lawyers with “conservative ideals.” What those are is not exactly clear. As I hope is apparent by now, however, when it comes to clients with claims that one might characterize as conservative, they are not finding it difficult to secure representation.
This last development is personal to me. I was one of those newly minted lawyers who was incredibly fortunate and grateful to have received one of these fellowships. It started my career as a non-profit lawyer, where I thought I could do the most good: to represent low-income tenants and try to prevent homelessness.
Indeed, tenants facing eviction rarely have counsel, while their landlords almost always do. And such courts evict nearly 1 million American families each year. Is preventing eviction and homelessness a liberal cause or a human one? And if so, what is its conservative corollary: private lawyers working pro bono, or those receiving grants to provide services for conservative causes, will now cause homelessness?
Trump’s attack on the legal profession is plainly unconstitutional, an affront to not just the First Amendment but also to the rule of law itself. But let’s not pretend that he has a point about liberal causes having all the law they want, and conservatives going without. Actions that purport to balance the scales of justice are really designed to tip them even further against the poor and marginalized. The real crisis is that there are too few lawyers for those who cannot afford them—and whose needs might not align with the president’s agenda—not too many.
Ray Brescia is the author of “Lawyer Nation: The Past, Present, and Future of the American Legal Profession” and a professor of law at Albany Law School.
