Doing well by doing good

Jeff Blackburn

Steven Phillips, one of the several dozen men exonerated through the efforts of  the Texas Innocence, is suing two Texas attorneys.  According to Phillips’, Amarillo attorney Jeff Blackburn and Lubbock attorney Kevin Glasheen are claiming $1 million in legal fees from Phillips.

Blackburn says its all a misunderstanding because, regardless of what the paperwork says, he has no financial interest in the case.  It appears evident, however, that Blackburn and Glasheen stand to collect a combined $8 million from representing Texas exonerees.

Jennifer Emily’s story in this morning’s Dallas Morning News is by far the most critical piece published thus far.  Emily quotes State Representative Raphael Anchia thusly:

“When I hear about folks potentially abusing and taking the money of the exonerees, it really breaks my heart. They should be helping the exonerees on a pro bono basis. The exonerees have suffered enough.”

The DMN article also quotes Michelle Moore, who once worked with Blackburn at the Innocence Project of Texas.  “It was bad enough to see private attorneys do it, taking 30 to 40 percent” Moore told the DMN, “but to see people who are supposed to be helping … I have no problem with someone who does attorney’s work receiving a fee. But when it’s a one-page document the guy could fill out himself …”

Finally, Texans for Public Justice, identified in the article as “a watchdog group”, has made statements critical of Blackburn and Glasheen.  “”The Texas Innocence Project will suffer a huge loss of innocence,” the group says “if its top attorney worked by day as a pro bono attorney for the falsely accused while secretly angling by night for a cut of those exonerees’ monetary settlements.”

Meanwhile, the blogosphere is picking up on the story.  “Frankly, I find this whole thing disgusting,” one blogger writes.  “The compensation paid by the state was to help make up for a huge injustice done to these exonerees. It was not meant to make attorneys rich.”

But that appears to be the real issue here: should attorneys be expected to invest thousands of unreimbursed hours working for their clients? 

Scott Henson at Grits for Breakfast doesn’t think so.  Grits calls State Rep. Achaia naive for expecting attorneys to work pro bono–how are they supposed to pay the mortgage?  Until recently, Henson worked with Blackburn and Glasheen for the Innocence Project of Texas.  He takes issue with Michelle Moore’s comment about lawyers charging the big bucks to help fill out a one-page form.  Scott’s argument here requires an extensive quotation:

The fact is that Texas already had a compensation statute when Steven Phillips got out of prison, but at a much lower compensation rate. All of the fellows who hired Glasheen (some of whom, but not Phillips, for which Blackburn receives a referral fee) could have filed that same one-page document already and received compensation at a lower rate. They each had a choice under the law: Sue or accept compensation. Some did accept the compensation and didn’t pay lawyers anything. Bully for them. That was their decision, but they’ll receive less money overall than Mr. Philips. The only ones on the hook for attorneys fees are the ones who made a conscious choice that the previous compensation package was not enough.

Under the law for exonerees who reject the state compensation package, their other option for compensation was and is to hire a lawyer and sue . . . Those lawsuits were settled this spring in light of Texas’ new compensation bill and a portion of the bill’s success may be attributed directly to leverage from Glasheen’s litigation – particularly among Dallas-area reps like Anchia whose local governments could otherwise be on the hook for big civil judgments. If the bill had failed, the litigation would have gone forward, including Mr. Phillips’, of that I have little doubt.

Bottom line: these exonerees are in a unique position because of a) choices they made and b) the point in history they made them. Nobody going forward will find themselves similarly situated because the law has changed.

This issue reveals a common assumption: those who work on behalf of indigent defendants are self-serving if they are reimbursed for their services.  It is generally believed that attorneys like Blackburn and Glasheen are on salary to the Innocence Project of Texas.  I’m not sure if that’s true and would like to be enlightened.

There is also the issue of proportionality.  If Blackburn and Glasheen rake in $8 million for their services on behalf of exonerated defendants they will be earning more in a single year than the combined incomes of several dozen full-time Texas criminal justice reform advocates.  The natural response, Scott Henson suggests, is that the attorneys in question lobbied extensively for legislation that, when passed, greatly expanded the pool of money available to the exonerated. 

I am willing to buy that argument, but an immense compensation gap remains between high profile attorneys like Jeff Blackburn and the hundreds of people across the county who have given up the criminal justice reform game in recent years because they couldn’t make a living at it.  The same issues arose in the wake of the Tulia drug sting.  Jeff Blackburn was reimbursed handsomely (albeit for several years of hard work) while the rest of the advocacy network assembled around the case was recompensed at much lower levels, or not at all. 

Friends of Justice and the Kunstler Fund for Racial Justice, the organizations that brought the case to national attention, received not a nickel.  The Texas ACLU was the first established Texas-based organization (eight months after Friends of Justice first blew the whistle) to enter the Tulia fight and they didn’t have a financial stake in the game when the winnings were divided.    It was just the way things worked.

True, there are many services that only attorneys can perform, and they certainly deserve to be reimbursed, but if the Tulia defendants had relied on Panhandle attorneys to go to the wall on their behalf (before 20/20 and the New York Times were involved, that is) they would have been sorely disappointed.  The first steps must be taken by plucky, small-budget organizations who assume all the risk and reap none of the profit.

The same scenario played out in Jena, Louisiana.  A few attorneys involved in the Jena fight were paid reasonable fees for their services but nothing approaching Blackburn-Glasheen levels.  As in Tulia, most of the legal work was on a pro bono basis.

Of course, in Tulia and Jena, pro bono attorneys were working fordeep-pocket law firms who could afford to make a few attorneys available.

There is little consistency, proportionality or fairness to all of this.  But if attorneys representing the Innocence Project of Texas are getting rich (and yes, $4 million in fees qualifies as rich in my book) the public should be aware of it.  This story illustrates just how little the mainstream media understands about the legal business.  Attorneys like Jeff Blackburn take big risks and incur big losses.  Sometimes they hit the jackpot.  That’s the way the game is played.  One thing is clear, none of the attorneys associated with the Innocence Project were working out of the goodness of their hearts. 

My guess is that more light is yet to be revealed.  I’ll keep you apprised.

3 thoughts on “Doing well by doing good

  1. Four million dollars is a lot… but what I want to know is how much of that figure is actual profit. I mean, did the attorneys have to spend money up front to pay for investigators and experts and court costs and a host of other expenses? How many man-hours did they themselves work on the case? Was this a multi-year project?

  2. Good questions. My sense is that the expenses vary greatly from case to case. I suspect the attorneys will make all of that information public in due course. This is the sort of story you have to follow over time because it takes a while for all the facts to emerge. Hopefully, the public will learn a few things about the risks and rewards of this kind of legal work. I suggest you read Scott Henson’s post, he does a good job of presenting the facts from an attorney’s perspective.

  3. I have an inborn aversion to doing well by doing good, if doing well means becoming rich by exploiting the misfortunes of others. This aversion applies to charities as well. When I decide which charities to support, I always try to find the compensation for their CEO. I support Heifer International. The compensation for their CEO is in the neighborhood of $120,000 which I think is a good living but not exorbitant. I had an appeal to multiply groceries for the needy, looked up the compensation for their CEO and found it to be over $300,000, so I chose not to support that charity. Jim Wallis of Sojourners has an annual compensation of something under $130,000 which for the East Coast is a get by salary.

    BTW, the budgeted compensation for Ex. Director Alan Bean of Friends of Justice is around $60,000, which is less than most school administrators. The catch is, that FOJ does not meet its budget, so Alan does not come even close to getting his budgeted compensation. This is as much of a disgrace as the exorbitant compensation of some charity CEOs. But it is not a disgrace that falls on Alan’s head.

    Hint, hint–click on “donate” on this web site.

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