Friday, May 02, 2003

Gee whiz, more about IOLTA?

Here are two things that are true about me: (1) I worry a lot about being wrong, because I don't like to be wrong; but (2) I will ultimately admit it if I'm wrong. So I've spent too much time worrying about the difference between opt-out and mandatory IOLTA programs today, because Bill Pryor's arch-supporter Feddie thinks that the difference is absolutely vital, and that it perfectly explains why Bill Pryor did not rise to the defense of Alabama's IOLTA program for funding legal services for poor people. Thus what I saw as an example of Pryor not defending a state law when he thought or hoped that the law was unconstitutional, Feddie sees as Pryor wisely doing nothing because Alabama's program (being an opt-out program) was really in no jeopardy because the Supreme Court litigation dealt precisely with a mandatory program.

Good news for me is that I still don't think, after further research, that I was wrong. I think that the best explanation of the situation is not that Bill Pryor (hyper-prolific amicus brief filer though he is) decided merely to sit this one out because Alabama's law wasn't really in any danger. I think that the only fair inference is that he sat this one out because he agreed with his ideological friends at Washington Legal Foundation in their attack on IOLTA. Why do I say this? Because (1) by my count, 14 other states with opt-out (or perhaps even with truly lawyer-voluntary) IOLTA programs did join in the defense of IOLTA in the Supreme Court. For those playing along at home, and guided by the categorization of IOLTA programs on this page, those States seem to be Indiana, Kansas, Maine, Mississippi, Nevada, New Hampshire, New Mexico, North Carolina, Oklahoma, Rhode Island, South Carolina, South Dakota, Tennessee, and Utah. Now one could either hypothesize (as Feddie does) that those AGs were all really just doing some politically-motivated nonsense that was totally unnecessary given that their programs were in absolutely no jeopardy, or infer that those AGs had some good reason for thinking that "opt-out" programs were in some substantial legal danger if the attack on the mandatory programs had succeeded. And (2) I think that the latter inference is more reasonable -- that those AGs had a good reason for thinking that their programs (and Alabama's) were in real jeopardy too, because from what I can glean it appears that WLF's theory ultimately was that client consent -- not lawyer consent, which is all that an opt-out program provides -- was required to make IOLTA programs constitutional, and that (though it would be easier to start the litigation by attacking mandatory programs) the constitutional theory that WLF was pursuing was (at least arguably) equally applicable to opt-out programs. If you're interested, and I cant imagine that you really would be, see for instance fn 225 of this (pdf) article.

So, with that longwinded anxiety out of the way, I arrive where I started: I think that anyone who believes that Alabama's program was in the clear, and in no jeopardy from WLF's attack, is being naive about how aggressive WLF would have gladly been if they had succeeded in attacking the mandatory programs first, or is being too confident in predicting that all courts would have agreed that the "opt-out" distinction was legally relevant. Bill Pryor surely didn't think either of those things, because he's too smart. He stayed out of the fray, I firmly believe, because he thought that mandatory IOLTA programs should be struck down, even if that would seriously jeopardize Alabama's program. And he didn't even file a brief -- which he could have -- saying "even if you strike down Washington's program, you shouldn't intimate that opt-out programs would be unconstitutional as well."

So, with that even more longwinded anxiety, I will continue to cite Pryor's behavior in the IOLTA case as an example of a time when he did not rally to the defense of state law. If anyone has factual or legal information that should convince me that in fact all the other opt-out State AGs were ignorant of the legal certitude that their programs were beyond attack, or were just doing PC politics, please feel free to let me know: sam at heldman dot net. [updated after initial posting to tone down some anger]

posted by sam 4:54 PM 0 comments

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