“First, we kill all the lawyers … “

This famous quote from Shakespeare is used by politicians seeking to divert attention from any issue of controversy. Of course, what they fail to quote is the balance of that sentence, “… if we want to control the society.”

Ronald Reagan, while governor of California, used this tactic quite effectively. And, of course, he failed to finish the comment with the fact that many of the lawsuits brought against him in his capacity as governor of the state were successful. Lawyers, both for fee and for free (pro bono), were seeking to redress social wrongs.

Fast forward to 2010. Politicians, mortgage holders and bankers are once again lambasting lawyers. This time, the targets are those lawyers who have the temerity to question foreclosure procedures. In particular, lawyers are finding that mortgage/bank representatives are signing declarations (under penalty of perjury) that they have reviewed the file and know the contents of the loan default to be true. This unexpected discovery of “robo-signers” by an attorney in Florida has thrown the entire foreclosure business (23 states require such signing) into turmoil.

The net result for the plaintiffs is that they get additional time to remain in their homes and, in some cases, the opportunity to renegotiate the terms of their loan or to remove the foreclosure from a credit report in order to refinance the house and start over.

One lawyer, representing the mortgage lending industry, said that people don’t have the right to a “fee house.” This is true. But what is the difference between this and a business filing an answer and using other dilatory tactics in order to delay ultimate payment of a legitimate debt? Using the legal system for personal advantage is common. And, in the case of the housing industry, where bankruptcy proceedings have no authority to discharge the debt, let alone even modify the payment schedule to permit the debtor to retain the house while making “affordable” payments, there may be no other alternative.

Again, the legal profession has come to the aid of those in need. And, what is also common is for monied-interests to seek to limit the effectiveness of the legal profession to help the disadvantaged amongst us.

As a follow up to the success of the Florida lawyer who devised this new tactic for his clients, some states attorneys general are seeking new laws to void “technical problems” as a defense where the foreclosure is “substantially appropriate.”  In California, for example, both a new penal code and rule of professional conduct, prevent a lawyer from taking a retainer in a mortgage refinance case. In other words, a lawyer cannot take a retainer from a client if the gravamen of the service will be to negotiate with a lender for the refinance of the house mortgage. Even when the retainer will be placed into the client’s trust account and not removed until the service is delivered. How will a lawyer be able to represent such a person?

A person with admitted financial problems, whose problems will not go away merely by refinancing. This lawyer will then be working pro bono in most cases. California, in effect, has prevented lawyers from helping an endangered class of troubled Americans … the home owner suffering from the current  woes of our economy. The claim was that there were some lawyers who “stole” from this unsophisticated group of people and took advantage of their fears. However, theft is already a crime and moral turpitude violates the rules of professional conduct and subjects a lawyer to disbarment. This new law/rule, adopted “to protect the public,” actually hurts the very people it’s intended to protect by denying them access to counsel.

The battle goes on … between those lawyers seeking to help needy clients and those monied-interests seeking to control the society.

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