By Jo Mathis
Legal News
The U.S. legal system is based on the premise of equal justice under the law, but for low-income people, the system is more based on illusion than equality.
So said Bob Gillett, director of Legal Services of South Central Michigan (LSSCM), during a speech at Cooley Law School last week.
Gillett received Cooley’s “Integrity in Our Communities Award for his extensive pro bono and community work and as an advocate for community organizations serving low income persons.
“It's a system that often seems to congratulate itself on its fairness and even-handedness while what it delivers is really a pretty one-sided set of penalties and justice,” said Gillett.
Gillett began with a few comments about ethics, pointing out that the American Bar Association writes and publishes a national Model Code of Professional Responsibility, and in Michigan, lawyers practice under the Michigan Code of Professional Responsibility.
“When I started to learn about this in law school, I thought a lawyer’s code of ethics was a guide to ethical behavior,” he said. “It’s not. That was my mistake. I eventually learned that the code is a set of regulations that govern the practice of law. It’s a lot like any other statute. Like other statutes, it’s a product of compromise. Some parts of the code seem very moral and ethical to me. Some are not so moral and ethical.”
Occasionally the ABA looks at and updates the code, and Gillett was involved in that process in 2000. But he realized it was about the pragmatic practice of law, not about what was right and wrong in a global and moral sense.
“We’re directed by the code to advocate zealously for our clients; basically to represent, to step into the shoes of our clients, and that’s whether clients are right or wrong,” he said, noting that sometimes that means protecting those who have done bad things.
So in many lawyer-client relationships, there’s a tension between advocating the client’s position and the lawyer’s own moral judgment about the client’s actions.
“The code provides the guidance about where the line is between your tprofessional responsibility to your client and your own sense of ethics,” he said, adding that in the practice of law, there’s still a great deal of that moral tension, and there are times it’s not at all clear what is the right thing to do.
He told the students they would face ethical dilemmas in their careers, and the Code of Professional Responsibility wouldn’t help much in answering those questions.
“And so I think it’s important that each of you have a set of personal values that will help you address and resolve these conflicts,” he said. “I’m not arguing for any special code. You have to find that yourself. But I’d suggest that honesty, respect for others, civility, an awareness of and care for the greater community are good places to start.”
Gillett then talked about the interplay among ethics, poverty, and the legal system.
“I’ve had the amazing and rewarding experience of looking at the legal system through the eyes of indigent people for my whole career,” he said, referring to 35 years in the profession. “When you look at the legal system through the point of view of low income people, you’d have to say from their perspective, the system is not ethical.”
The court system is based on the values of fairness, non-discrimination, and a sense that every individual will be valued and treated equally, Gillett said.
“But day by day and case by case, our legal system doesn’t really reflect these values or deliver these values to low income people,” he said. “It seems to reflect a political system and economic system that both permits and often encourages the victimization of the poor by the wealthy.”
He said many laws were written by corporations and wealthy people in order to assist them in taking advantage of low-income people, and many banking laws are really statutes drafted and written by private banking industry that overtly favor the creditor and disfavor the debtor.
“We all celebrate our Constitution and I agree that our Constitution is in many ways a great document,” he said. “It was written in 1789, and it’s truly a remarkable document for the 18th Century.”
But he said the Constitution includes no right to food, housing, or health care. More modern constitutions recognize and guarantee these rights, he said.
Referring to the movie, “Inequality for All,” Gillett told students that during the last decade, billions of dollars have moved from the middle class to large corporations due to government policies favoring large corporations and their executives. Even though the overall economy has shown decent growth over the last 25 years, poverty in our country is deeper more institutionalized and more legally sanctioned than in any other developed country, he said, noting that in the last 10 years there has been a 32 percent increase in poverty nationally, and a 59 percent increase in poverty in Michigan.
He said that many banking laws—foreclosure laws; student loan laws; credit card collection laws—overtly favor banks.
“And they’re enforced by the courts because they’re the law,” he said. “But I would hope that the courts—put in a difficult position of enforcing imbalances laws against struggling
and vulnerable people —would do their best to defend the thousands of individuals and families who are being ruined by some of these laws. And they haven’t. Not only have the courts generally upheld these rights … the courts have institutionally joined the ranks of the banks.”
and vulnerable people —would do their best to defend the thousands of individuals and families who are being ruined by some of these laws. And they haven’t. Not only have the courts generally upheld these rights … the courts have institutionally joined the ranks of the banks.”
He said one of the growing scandals in the court system is judicial debts, assessment and collection.
Gillett texplained that this collection system mostly is attached to the criminal misdemeanor and traffic laws. Taken as a whole, he said, this system imposes debts on the most vulnerable, uses this debt to finance the court system, enforces this debt by putting people in jail who don’t or can’t pay, including indigent people with no determination of ability to pay.
“This debt system is one of the primary financing mechanisms of our whole court system now,” he said.
This all happens in cases where there is no right to counsel, he said, and the total fee for jail booking, jail stay, probation, drug testing and penalties often amounts to more than $1000 per case, and sometimes more than $10,000.
Gillett noted that re-balancing the legal system is each of our ethical responsibility.
“Not everyone can practice law—you need a license,” he said. “And in exchange for that privilege, one of our ethical duties is the duty to provide public interest legal services.”
Gillett applauded Cooley for encouraging students to recognize that professional responsibility and creating opportunities for them to fulfill it.
He challenged students to not let the practice of law be only a job; to not think that the MCPR is the first and last word on ethical behavior; to be aware of the legal system’s impact on the indigent and the unrepresented and to help fulfill its obligation to treat these litigants with respect and fairness; and to find a way to participate in pro bono now and throughout their careers.
After the talk, several first year Cooley students told The Legal News that Gillett re-enforced their determination to work on a pro bono basis one day.
Monica Carson said the talk was an eye-opener.
“I don’t understand how a system I love from the outside looking in could do that to people,” she said. “I hate thinking that someone who doesn’t have resources is going to spend more time in jail or be more likely to lose or treated unfairly than someone who has money.”
“I don’t understand how a system I love from the outside looking in could do that to people,” she said. “I hate thinking that someone who doesn’t have resources is going to spend more time in jail or be more likely to lose or treated unfairly than someone who has money.”
Gillett has served as counsel in many significant poverty law and civil rights issues, at the trial and appellate levels in both state and federal courts, including the U.S. and Michigan Supreme Courts. Gillett helped create Avalon Housing, the Washtenaw Housing Alliance and the Washtenaw Health Plan. He is active in state bar, local bar and national services work. He is currently the chair of the State Bar of Michigan Pro Bono Committee and is the co-chair of the Michigan State Planning Body. He also chairs the State Bar of Michigan’s Pro Bono Committee and is the co-chair of the Michigan State Planning Body.
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