Am I misinterpreting Lawrence Lessig in his post regarding Aaron Swartz’s suicide and its relationship to the criminal charges Swartz was facing?
In the post (entitled ‘Prosecutor as Bully’), Lessig declares (second last paragraph):
What is Lessing getting at? Why would an appeal for financial help, whether through crowdfunding, bake sales, or the passing of a hat, risk the ire of the judge? What am I missing?
Thanks!
Funding litigation in which you don’t have a stake yourself is generally frowned upon on the common law tradition. It’s seens as promoting litigiousness.
In some jurisdictions it is actually a tort: maintenance.
I’m not quite sure what you’re talking about. In the US, at least, how or where or whether a defense is attorney is being paid is none of the judge’s business.
If the attorney was paid in funds from some sort of illegal business - or from the crime itself - the the DA might take an interest in that. But “crowd sourcing” legal. No different from being paid by the defendants’s mom, or friends or family.
The specifics will very, but most state bar professionalism rules place restrictions on certain situations where a third party pays for a litigant’s legal fees. This is because the third party’s interests may differ from those of the litigant’s.
This is what the [ABA](http:// https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_8_current_clients_specific_rules/comment_on_rule_1_8.html) has to say about it:
In the case of crowdfunding, or passing a hat round the lodge meeting, or begging in the street, I can’t see how that would imply "interference with the lawyer’s independent professional judgment". Surely, the individual contributors would have no input apart from the cash.
I agree with bob++ - I think those ABA rules are designed to avoid situations like:
The Gambino crime family hires a lawyer to represent their street soldier “Vinny the Squid.” Since it is actually the crime family paying his case - there is the possibility that the lawyer wouldn’t take a deal that was actually in his clients best interest - as it would implicate the family. (Of course I realize that there aren’t any check books with “Gambino Crime Family” written on them)
Pfizer pays for representation of an employee suspected of promoting off label use of the drug to doctors. The lawyer has a responsibility to represent his client (the employee), but he might overlook certain defenses that would give Pfizer negative PR. He would be afraid of not getting the companies business in the future.
How asking the general public to contribute to his defense would piss off a judge is beyond me.
Now I only browsed the article for like a minute or two - so I don’t know the details, but maybe Lessig is talking about passim the hat around to hire HIM as an attorney. Lessig (if memory serves) is an activist in this area - and might be tempted to keep litigation going for his own selfish reasons.
It could be like the case of that woman who ended up getting a pretty hefty judgement against her by the Music Association or whatever it was. If memory serves she was represented by some left wing activist lawyers that may have been at Harvard or something. If memory serves - they were criticized by the legal community for pursuing their own agenda to set case law & fame - versus the zealous representation of their client.
Magistrate and former prosecutor here. As long as those donating were under no illusions that they could interfere in the attorney-client relationship, and it appeared to me that the lawyer was presenting a zealous defense, I would have no objection to the establishment of a legal-defense fund for a criminal defendant. It’s not “encouraging litigation” if the person is already charged.
Thanks all! Very helpful indeed.
Elendil’s Heir, in particular, I very much appreciate your comments. And, in light of what you said, it simply does not seem to be the case that Lessig’s hyperbole was justified - Swartz was already charged and I don’t think there could be any doubt that Lessig et al would mount anything other than a ‘zealous’ defence. That leaves ‘interference’ in the attorney-client relationship - something a diffuse set of supporters/funders would be incapable of doing.
The other question that might come up, then, is if the third party paying is encouraging litigation as in “let’s fight this thing to the max to establish a precedent” rather than accepting a compromise/plea bargain that may better serve the client’s interest.
Again though, that’s up to the lawyer to work in the best interest of the client.
In addition to Maintenance, I can see another problem with crowd-source: what if the funds run out and Web nerds find another cause de jere? No money to pay the lawyer for the rest of the trial (let alone appeal) means the lawyer (the only one who knows squat about the case) withdraws.
Fine, we’re 3 months into a trial and we need a new lawyer - is the Court to twiddle its thumbs for a month while the new lawyer comes up to speed?
Where is this lawyer getting paid, that the last one couldn’t.
If this is criminal case, a Public Defender can be certain to take it and see it through.
If it is a civil case, no provision for public representation - find somebody to take it on Pro Bono in the middle of the case… Ummmm. Yeah.
I can see why the Judge would be concerned.
OK, explain to me how this couldn’t happen if someone were paying for their own legal defense out of pocket. Aside from the fact this isn’t just a cause du jour for anyone, and that crowdfunding has gotten much more money for interests much more niche, this hardly seems like a problem unique to the model.
Like lawyers the world over don’t do this anyway?
This thread brings to mind a vague memory that those who contribute to such a fund may have an open-ended liability for a share of both sides’ legal costs.
This was reported in the context of a case, possibly around 20 years ago in England, where they said that if a member of the public were to contribute, say, £5, they could be liable for a much larger amount when the costs were awarded. Unfortunately I can’t remember any details of the case.
Wouldn’t be relevant to a criminal defence.
And, in the US, wouldn’t be relevant in a civil matter either, since awards of costs against the unsuccessful party are not normally a feature of US civil litigation.
What if there is a (non-disclosed by $ seeker) counter-suit?
If I contribute to Party A, do I become liable should the funded side lose and is hit with costs, actual, and punitive damages?
Would the Court then need to assess the % of money contributed as a total of $ spent by the losing side, and assess damages to each contributor?
"Well, you invested .00021% of the losing side’s expenses; the losing side just got hit with $50,000 total in costs and damages. Therefore, you owe the successful party .00021 of $50K - please remit $10.50 to the court. Mark your check “losing side of Case 606309”.
If that is the case, I can see laws being passed to explicitly prohibit such funding, or at least disclose the potential of losing your life saving’s.
Wouldn’t who paid the bills be a lawyer-client confidentiality issue?