By Mark D. Killian
The best way to guarantee the independence of the American lawyer is to help develop the public’s understanding of, and respect for, the courts and the ideal of judicial independence.
“Lawyers and judges must educate the public on the lawyer’s role and the judge’s role in a democracy,” said Joseph W. Hatchett, who delivered the annual lecture on the Independence of the American Lawyer at the Trial Lawyer Section’s Annual Chester Bedell Memorial Luncheon at the Bar’s recent convention. “We cannot wait until election times or times of crisis. We must be community educators using a variety of methods and tools to reach the media, the public, and the legislative and executive branches of government.”
The purpose of this independence, said Hatchett — the first black justice of the Florida Supreme Court, the first black elected to statewide office in the South, and the first black judge appointed to serve on a federal appellate court in the South — is the protection of the American people, “all of them without regard to race, color, sexual orientation, agenda, or other differences.”
To remain the “indispensable instruments for the protection of minority, individual, and unpopular rights,” Hatchett said, lawyers need to take action to:
* Eliminate the drift of raw politics into appellate judge elections;
* Ensure that middle-class Americans have access to the courts in civil cases; and
* Take immediate emergency action to provide access to the civil courts for the impoverished.
“Let’s talk about one of the forms of encroachment on the independence of the legal profession,” Hatchett said.
According to the Brennan Center for Justice, in the 2011-12 election cycle, many judicial races seemed indistinguishable from ordinary political campaigns featuring super PACs, mudslinging, attack ads, and millions of dollars. The Brennan Center reports that the boundaries that keep money and political pressure from interfering with the rule of law have become increasingly blurred.
“Sound familiar?” Hatchett asked. “It should.”
Hatchett said when he sought to retain his seat on the Florida Supreme Court in the 1970s he had an opponent and campaigned as if he were running for sheriff in all of Florida’s 67 counties.
“I went across Florida with my hands out begging for money, had political ads, name calling, and all the other activities that the voters of Florida thought they were eliminating in the general election of 1976 when they instituted merit retention for appellate judges,” Hatchett said. “What a proud day for Floridians when its appellate judges were no longer subject to the effects of campaigning, making promises, and accepting money from those expecting something in return.”
In the next couple of elections for the Florida Supreme Court, voters had changed the appellate selection and retention systems for the better, he said.
“But wait a minute; look what has happened,” Hatchett said.
The Brennan Center reports that across America, total spending in the 2011 and 2012 state supreme court races reached an estimated $56 million dollars, with the most expensive appellate judge elections run in Michigan, Wisconsin, North Carolina, and Florida.
He said Americans for Prosperity spent an estimated $155,000 targeting three Florida Supreme Court justices, who previously rejected a ballot proposal resisting mandates imposed by the Federal Affordable Care Act. America Votes, a progressive advocacy organization, contributed $300,000 to the Florida “Pro-Retention Group,” and Defend Justice from Politics spent more than $3 million on ads supporting the retention of the three Florida justices.
“Special interest groups are now giving large sums of money directly or indirectly to judicial candidates,” Hatchett said. “This activity furthers the impression that justice is for sale.”
So, what can lawyers do to ensure appellate elections do not destroy the independence of the judiciary?
“Well, some will say rightfully, it is time to amend the Florida Constitution to better address the situation we now face,” Hatchett said. “Right! We can do that in 2018 during the regular Florida Constitution Revision Commission process. Sure we can — if we are willing to wait four years. Sure we can — if we believe we can get the ‘right’ people on the revision commission.”
What lawyers can do now, Hatchett said, is educate the public, especially the young, through programs such as Justice Teaching and the Florida Law Related Education Association.
“But recent events shout at us to turn up the heat; to try harder; to work longer to preserve the independence we celebrate today,” he said.
Lawyers also must ensure that middle-class Americans have access to the courts, he said.
In 2009, the ABA Coalition for Justice conducted a study of judges across the United States to assess, among other things, self-representation and how it impacts the parties and the courts. Sixty-two percent of the judges surveyed said that outcomes were worse when people represented themselves, and 78 percent said that courts are negatively affected when parties are without lawyers.
“The system of justice in this country is based on an adversarial model,” Hatchett said. “It has sophisticated sets of rules and procedures under which everyone must operate. For it to operate efficiently, each party should be represented by a lawyer. When parties are not represented by lawyers, the study shows that the parties actually hurt their cases through self-representation. Not only do the parties hurt their cases, but the justice system itself is slowed, because unrepresented litigants use more staff time.”
Hatchett said the guarantees in the Constitution do not come with the caveat “for those who can afford them.”
“Denial of justice to a significant segment of our society, those who are not indigent and yet cannot afford a lawyer, is a failure of our profession and of our system of democracy,” he said.
The special privileges that come with being a lawyer also come with heightened ethical obligations to increase access to justice.
“The unrepresented must be helped,” Hatchett said. “Who is responsible for providing that help? The answer is found within the ethical duties governing lawyers — from not only our code of ethics, but from the very oath that we took as new lawyers. And I quote: ‘I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay anyone’s cause for lucre or malice. So help me God.’”
The profession also must “take emergency action” to provide access for those in poverty with civil matters, especially in light of the collapse in revenue from the IOTA program.
“Studies show that as much as 80 percent of the legal needs of the poor are going unfulfilled,” Hatchett said. “In addition, The Florida Bar Foundation is projecting cuts of 76 percent of its legal aid grants by the 2015-16 grant year, and current estimates for the near future project one legal aid attorney for every 10,700 Floridians living in poverty.”
Hatchett said we are going to have to do “something new” and that something will require more of lawyers’ time and money.
“In these difficult times, when power struggles between branches of government are frequent and everyone wants to see ‘reform’ or ‘change’ for the sake of change, the independence of the American lawyer must be viewed as a notion at risk and requiring special protection.”
He said the American independent lawyer must continue to insist that the rule of the majority is limited by constitutional guarantees to the minority and advocate for and define those rights.
“Our clients face challenges and losses to reputation, standing, office, property, liberty, and, sometimes, even life itself,” Hatchett said. “In those times of challenges and losses, our clients place their trust and confidence in us. And in resolving their disputes, we place our trust and confidence in our courts. Only in our courts, with independent judges and lawyers, can the rich and the poor, the educated and the uneducated, the members of the majority and minority groups, speak the truth, have their evidence fairly considered, and receive a just outcome.”