Testimony on the expansion of Ohio sales tax to legal services

Ian N. Friedman, Esq., on behalf of the Ohio Association of Criminal Defense Lawyers, March 6, 2013

 As defined by Merriam-Webster[1], the word “Essential” means:

 Of the utmost importance, for example: Basic, Indispensable, or Necessary.

 So the question must be asked: Should the legal profession in Ohio be deemed “Essential” or “Non-essential” as Governor Kasich so proposes?

 My position is confined to the profession of law and more specifically to the Ohio Association of Criminal Defense Lawyers.  I refer to the organization hereinafter as the “OACDL”. 

 The Mission Statement of the OACDL is to:

1.  To defend the rights secured by law of persons accused of the commission of a criminal offense;

 2. To educate and promote research in the field of criminal defense law and the related areas;

 3. To instruct and train attorneys through lectures, seminars and publications for the purpose of developing and improving their capabilities;

 4. To promote the advancement of knowledge of the law as it relates to the protection of the rights of persons accused of criminal conduct;

 5. To foster, maintain and encourage the integrity, independence and expertise of criminal defense lawyers through the presentation of accredited Continuing Legal Education programs;

 6. To educate the public as to the role of the criminal defense lawyer in the justice system, as it relates to the protection of the Bill of Rights and individual liberties; and

 7. To provide periodic meetings for the exchange of information and research regarding the administration of criminal justice.

 The OACDL is the only statewide bar association dedicated exclusively to the criminal defense attorney, their clients, and the betterment of Ohio’s criminal justice system. 

 Plainly stated, to consider the criminal justice system and the services provided by the criminal defense attorney “Non-essential” is to say, at the very least, troublesome. 

 Allegations are lodged daily toward individuals and entities, some truly guilty and some not.  Our clients face the prospect of being incarcerated for years, possibly a lifetime and separated from loved ones including children.  I believe and assert  today for this committee’s consideration, that the services provided by the criminal defense attorney far surpass the definition of “Essential” as referenced at the commencement of my presentation. 

 “Vital”, also defined by Merriam-Webster[2], is defined as:

 Concerned with or necessary to the maintenance of life.

 “Vital” is also defined as a:

 Fundamental concern with or affecting life or living beings.

 Every day, every moment and every second spent working on a person’s case, the service provided by the criminal defense attorney is vital.  It is not subject to being set aside or neglected. 

 People are put to death in the State of Ohio as punishment.  It is the function of the criminal defense attorney to keep the innocent or those guilty of a crime but not to the degree charged from this ultimate and obviously irreversible sanction.  To call this responsibility “Non-essential” defies logic and contradicts one of the most important documents ever authored. 

 The United States Constitution, adopted on September 17, 1787, effective March 4, 1789, speaks loudly to this debate, and begins:

 We the People of the United States, in order to form a more perfect union, and to establish justice . . . do ordain and establish this Constitution for the United States of America. 

 The founding Fathers of this country wrote plainly and from the beginning that the Constitution, our foundation, is in place to establish Justice.  It is the attorney that strives to ensure that justice.  To now claim this responsibility as “Non-essential” is an affront to our time honored legal pillars. 

 The importance of the criminal justice system and the need for criminal defense attorneys is seen throughout the United States Constitution. For instance, Article III, Section 2, addresses in part: judicial power, court jurisdiction, and the right to a jury trial in criminal matters. 

 Ratified in 1791, The Bill of Rights, evidences immense concern for the rights of the American citizen.  On behalf of their client, the criminal defense attorney routinely interprets and argues for the Free Speech protections of the First Amendment.  The right to bear arms, as guaranteed by the Second Amendment is the subject of constant debate in courtrooms across the United States and here throughout Ohio’s eighty-eight counties. The Fourth Amendment relates to the principles of search and seizure.  The Fifth Amendment ensures that no criminal defendant will be subject to double jeopardy nor shall they be deprived of due process of law.  The Sixth Amendment guarantees a defendant in a criminal matter assistance of counsel throughout the entire criminal prosecution.  The Eighth Amendment prevents excessive bail and fines.  It is also this Amendment that seeks to avert cruel and unusual punishments.  The Fourteenth Amendment imposes the aforementioned rights onto the states. It is the criminal defense attorney that works tirelessly to ensure their client is cloaked with all applicable rights found in the United States and Ohio Constitutions. 

 Under traditional public policy, the government does not tax the exercise of one’s constitutional rights.  Examples include: no poll taxes on voting, no property or income taxes on churches or religious organizations, and no sales tax on newspapers.  The proposed legal service tax is more alarming when the very government prosecuting the criminal defendant, is also calling for taxation of the criminal defense services.  In the event that the individual were exonerated, it is unlikely the state government will refund the taxed amount paid for the criminal defense attorney.

 The rule of law and the everyday function of the legal system is the backbone of our nation.  Finding the function of the criminal defense attorney as “Non-essential” is insulting. 

 I close with just a few practical issues that will arise if the Governor’s proposal is put into law:

 1. Access to justice will be denied due to financial hardship.  The individual finding him or herself needing legal counsel will face an even more insurmountable financial hurdle as the fee for representation will increase due to the new tax;

 2. The Attorney-Client privilege would be violated as the amount paid to counsel for services rendered could be known based upon the tax paid;

 3. Those who cannot afford private counsel will seek the assistance of public defender offices, Legal Aide Society, or court appointed counsel all of whom receive state funding further straining state resources; and

 4. Attorneys, particularly solo or small firm practitioners, would likely be forced to accept a lower annual income if they want to continue representing people without financial resource. Ohio criminal defense attorneys have endured tremendous financial hardship as the bleak economy in Ohio has already greatly reduced the number of clients able to retain private counsel.  The five percent tax would only inflict continued harm. 

 In conclusion, the OACDL commends the Governor for his effort toward strengthening the Ohio economy.  However, taxing criminal defense attorneys for their work in ensuring adherence to federal and state constitutional rights on behalf of their clients is wrong.  I say this respectfully but vehemently.  Attorneys will be harmed. The accused, all whom are presumed innocent, would also be harmed.  Ohio’s criminal justice system will be compromised.  The rule of law and fundamental protections within the law will be weakened.  We must always strive to protect the criminal justice system and the lives it touches.  Deeming the service of criminal defense attorneys as “Non-essential”, so as to impose a tax, defies the very intentions the Fathers of this country put into writing over two hundred years ago.

 Thank you.