de Fina, Deborah --- "I want a lawyer, not a legal aid'" [1998] ALRCRefJl 24; (1998) 73 Australian Law Reform Commission Reform Journal 32

• Reform Issue 73 Spring 1998
• This article appeared on pages 32 – 33 of the original journal.

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Reform Issue 73 Spring 1998
This article appeared on pages 32 – 33 of the original journal.

I want a Lawyer, Not a Legal Aid

Reflections on working for the Legal Aid Society in New York City, by Deborah de Fina.*

“I want a lawyer, not a legal aid.” As a staff attorney with the Legal Aid Society - Juvenile Rights Division in New York City, I was often greeted by this cry of dismay when I appeared to represent my clients for the first time. To these children and their families, getting ‘legal aid’ meant that they weren’t getting a true lawyer at all, but a second rate legal assistant.

The first time that I heard this comment, I was shocked. I was a young lawyer who had recently graduated from a prestigious law school and had done everything I could to obtain a job with Legal Aid, even working for free for the Juvenile Rights Division for several months before being offered a paid position. Although I had taken out more than $US70, 000 in loans to finance my education, I was determined to resist the pressures to take a lucrative position in a Wall Street law firm and to follow my desires to advocate for the poor, the disadvantaged and the oppressed. I was amazed that after all I’d done, the very people I wanted to help didn’t trust my abilities.

However, the longer I worked for Legal Aid, the more I understood the reasons that my clients and their families initially believed that I couldn’t help them. I learned that proving again and again that I was not a part of ‘the system’ was simply another part of the job.

The Legal Aid Society - Juvenile Rights Division

Started in the late 1800s as an organisation to provide legal assistance to German migrants, the Legal Aid Society of New York City is now one of the largest law ‘firms’ operating in New York. It is a not-for-profit, private organisation that employs more than 1,500 lawyers in its various divisions, some of which have contracts with the State or City of New York to provide constitutionally mandated legal representation to criminal defendants. Its civil law divisions provide free legal assistance in a variety of areas of law.

I was one of 120 lawyers working for the Juvenile Rights Division, which had the State’s contract to represent all children who were subjects of petitions before the

Family Courts in New York City. The majority of the cases involved representing children in care and protection or juvenile justice matters. Although the legal issues in the cases were often very different, the social issues facing Juvenile Rights Division clients were often very similar. These children were often victims of violence and abuse and they were subjected to systemic racism. The predicaments they found themselves in were usually the result of a poor education system, rampant crime and drug abuse in their communities and a social welfare system that often did more harm than good.

Second class lawyers for second class citizens?

My clients and their families understood the position that they had been allocated by society. Their belief that they were constantly discriminated against and purposefully kept in desperate poverty in a country where ‘money is king’ was, in their eyes, confirmed by the fact that they were assigned a Legal Aid lawyer when they were brought before the courts. While the rich could afford teams of highly paid lawyers, the white man’s legal system gave them a lawyer who was willing to work for nearly nothing. It defied belief: how could someone who worked for free be any good? This attitude was exacerbated by that of the rest of society. Other than the police - who dreaded a cross-examination by one of us - many people held the same assumptions about Legal Aid lawyers. I can’t count the number of times I’ve overheard someone say “well, if [so and so who just graduated from the local law school] can’t find a job, she should work for Legal Aid”. The fact that I and many of my colleagues had gone to Harvard, Yale or Columbia, were recruited by the top law firms and yet still chose to work for $30,000 a year at Legal Aid was incomprehensible to most people.

The irony was that when a Legal Aid client’s family occasionally scraped up enough money to hire a private lawyer, the lawyer was often unqualified to deal in the highly specialised jurisdiction of the New York juvenile justice system. The Legal Aid attorney who had previously represented that child would often end up sitting in the back of the courtroom in tears, while the private lawyer made mistakes that would certainly cost the child his or her ability to live at home.

It’s a tough job, but someone’s got to do it

Given these attitudes and the underlying assumptions about the type of person who becomes a Legal Aid lawyer, my colleagues and I had a tough job. In order to properly represent our clients, we not only had to advocate for them in court, but also had to convince the children and their families that there were people out there who cared, who were willing to challenge the system on their behalf.

What I and the other Legal Aid attorneys were striving for was summed up in a letter received by one of my colleagues. ‘NG’ had just spent months handling four or five separate trials for one young man. He was black, 13 and could barely read and write. He had lived in foster care for most of his life, shifting from one home to another, eventually ending up in a group home for ‘troubled’ children.

Over the course of a few weeks, NG’s client had been arrested for several assaults, a few robberies and possession of deadly weapons. Due to the large number of serious charges against him and his unstable home environment, the prosecutor refused to offer any plea bargain other than for the child to plead guilty and spend several years in a secure juvenile detention facility - the same result that would occur if he lost any one of the trials. NG and her client declined, instead taking each case to trial. Needless to say, despite NG’s efforts, they lost.

After it was all over, NG received a letter from her client in detention. In it, he wrote; “Thanks for fighting for me. No-one’s ever done that for me before.”

* Deborah de Fina worked for the Legal Aid Society - Juvenile Rights Division in New York City for more than two years before moving to Australia. She was part of the legal team working on Australian Law Reform Commission/Human Rights and Equal Opportunity Commission reference into children and the legal process, completed in November last year.