Institutional coddling

Lawyers are coddled, writes Rick Casey of the Houston Chronicle, because they can’t be sued unless a client’s conviction is overturned. They’re coddled because they’re not monetarily liable for any errors they make that result in a conviction.

Bennett takes a bite at the apple, which in turn causes Greenfield to jump in. Bennett first:

The aim of the legal system—civil and criminal—when someone is sentenced to more time through the fault of his lawyer should be to reduce that person’s sentence, rather than to compensate him for it. Getting lawyers to help fix their own mistakes should take priority over getting them to pay up.

A rule that encourages lawyers who make mistakes that harm their clients to come clean is preferable to one that encourages them to stonewall. Allowing clients to sue lawyers because their sentences are too long encourages lawyers to stonewall. As the law stands, even with no practical sanction, too many criminal defense lawyers treat an ineffective-assistance claim as a personal affront; better lawyers treat it as one last opportunity to help the client get free. Add a financial penalty, though, and it’ll be only the rare (or well-insured) lawyer who tries to help his client get his sentence reduced.

So the rule that a person who hasn’t been acquitted can’t sue his lawyer for negligence, even if that negligence resulted in a lengthier sentence, benefits not only the criminal defense bar but also—and maybe more so—the wrongfully sentenced.

Bennett mentions the problem I have with coddled lawyers, but only in passing. Greenfield places the blame squarely on our shoulders:

The mistake is a problem, but not the most significant problem. The one that undermines our integrity, and gives rise to Rick Casey’s complaint, is our inability to admit our error and correct it. Rather than concede error, lawyers try to bury it. […]

Rick Casey’s issue is real, and it’s getting worse rather than better. It was a problem before, and is more of a problem today. We are coddled, and we coddle ourselves. No amount of lip service paid to the defendant we failed, who sits in a prison cell while lawyers ingratiate themselves with others to get more twitter love, cares how many followers we have. This mutual admiration society with people we don’t even know is not a substitute for having the guts to own up to mistakes so that human beings don’t spend a second longer suffering for them than they should.

The answer isn’t disclosing whether we possess malpractice insurance. The answer is being a real criminal defense lawyer, warts and all, rather than just pretending to be one for the benefit of being part of the gang. Do the hard work that minimizes the potential for mistakes. But when a screw-up happens, as it invariably will, make it right.

They’re both right. We are coddled. But they don’t focus on the other “third prong”, as it were, of the coddling. It doesn’t just come from the fraternity of lawyers, but from on high. The coddling of lawyers is institutionalized in our jurisprudence. From the collective mistrust and offhand dismissal of allegations of ineffective assistance that pervades the criminal bar to the vast legal opinions that ridicule such claims to the institutional roadblocks to even getting judicial review of the mistakes made by lawyers in their handling of cases.

Ask anyone who’s tried an ineffective assistance of counsel case. The coddling begins at the beginning. First, the community of habeas corpus lawyers are treated as lepers; outsiders on the lunatic fringes of the criminal defense bar. Trial lawyers are dismissive and uncooperative. Clients seeking redress via The Great Writ are viewed as whiners, their lawyers are traitors. Files aren’t turned over, communication is non-existent and the defenses are raised to maximum alert.

Habeas petitioners then have to jump through unmanageable hoops to actually get the merits of their claims heard by courts. Procedural default, deliberate bypass, cause and prejudice are institutional tools designed to protect the “finality” of convictions and to punish the defendant for failing to do that which a lawyer should have done and didn’t: provide effective assistance and own up to mistakes. The jurisprudence places the onus on the pro-se defendant to recognize that a) his lawyer has messed up and b) that he has an avenue for redress.

And if this defendant is somehow able to surmount the gargantuan task of getting a court to consider the merits, he is faced with the three-headed monster: an uncooperative trial lawyer, a skeptical, cynical and weary judge and a veritable landfill of caselaw that is designed to thwart his every effort to ensure that “justice” is done in his case.

Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U. S. 107, 133-134 (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” See Michel v. Louisiana, supra, at 101. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. See Goodpaster, 690 The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N. Y. U. L. Rev. 299, 343 (1983).

Strickland v. Washington, 466 U.S. 668 (1984). Courts are even given the power to deny the petitioner relief on either prong of Strickland:

Because the petitioner must satisfy both prongs of the Strickland test to prevail on a habeas corpus petition, this court may dispose of the petitioner’s claim if he fails to meet either prong. See Taft v. Commissioner of Correction, 47 Conn. App. 499, 504[…] (1998). We therefore need not decide whether the petitioner was denied the effective assistance of either his trial or habeas counsel because he has failed to demonstrate that he was prejudiced by his counsels’ assistance, whether or not it was deficient.

Denby v. Comm’r, 66 Conn. App. 809 (2001). Everywhere he turns, there are untameable lions guarding the exits. The collective ego of the profession prevents the one person whose life is altered by a brush with the justice system from every seeking and gaining redress. This is not surprising. Judges, after all, were also once lawyers. And the conventional wisdom, shared by most judges and prosecutors and defense lawyers, is that habeas is nothing but hogwash; another lame attempt by a clearly guilty man at escaping blame for his own evil and immoral actions.

If this is to change, if we are to truly care about the people that are processed like cogs on an assembly line, then the first step is to view ourselves not as entities distinct and separate from the people we represent, but as a manifestation of them. An incarnation, if you will.

If the conviction of the client is a conviction of the lawyer; if the days spent in jail by the client are days that the lawyer will have to also suffer, then and only then will the interests align. To be sure, there are few who already possess this view. The vast majority do not. To them, the attempt by the convicted client to shave a few years off his sentence, because of something the lawyer missed (or not), or the attempt to seek a new trial or to withdraw the plea of guilty are nothing more and nothing less than personal insults that impugn the reputation of the lawyer who goshdarnit did his best for the cretin that happened to walk through his door.

Us and them. While this divide exists, we cannot truly be counselor and representatives of our clients. We cannot change the system that views “them” differently. We cannot fulfill our duties and responsibilities to ensure that our clients’ rights are paid more than lip service.

This doesn’t happen overnight, there will be no sudden realization. It takes small steps. One lawyer here, one lawyer there who refuses to laugh along with the crowd at the ridicule of the defendant. Two lawyers who recognize the importance and value of The Great Writ, who have the courage to admit their errors even where they may be negligible. To realize that they have the comfort of going to their own homes at night, while the client will suffer in isolation. Whether this be by letting go of our egos as Scott writes or some sort of penalty as Mark considers and rejects or a change in the jurisprudence, it must be done for the sake of the client.

This is not an issue of “just desserts” or blame or punishment. This is about the ability to sleep at night, peacefully, knowing that you have done everything in your power to uphold the awesome responsibility of your profession: speak for another man when no one will.

We fight the institution. Why stop when the client is convicted?

27 thoughts on “Institutional coddling

  1. mirriam

    Bravo. I’m struggling with lots of IAC claims against lawyers right now who’ve plead clients out when they have clearly (and I mean on the record clearly) not discussed the case with their clients. You’d think it would be a slam dunk. But, sigh, I doubt it.

    1. Gideon Post author

      I just don’t get it. One would think that a private lawyer would gain a greater reputation among the “clientele” for being a standup guy and admitting his mistakes and helping the client years down the line.

      Instead the only ones we seem to want to ingratiate ourselves to are others like us.

      1. mirriam

        In one instance – the most egregious of them, it was a public defender. I didn’t want to say that since when I did say it was a public defender on a listserv I got creamed because I was ‘bashing’ poor PD’s who are overworked and can’t possibly be expected not to let clients plead to felonies that carry 10 year maximums when they’ve never met the guy before.

        Recently, an attorney on that same listserv gave this advice “Don’t be afraid to ‘throw a client under the bus’ when it’s a choice between YOUR reputation and your client’s candor!” I dunno, but I was taught never to use “throw under the bus” and “a client” in the same sentence. I think that guy gets paid, though.

        1. Gideon Post author

          That’s inexcusable. Both of those instances. We had some of that on the local listserve last week (see my post on effective misadvice).

          Your reputation is nothing if your integrity is missing.

        2. shg

          The listserv. Home of the brave, and a great place for the love and support of your brethren. How to make a quick buck, a quick plea, a cheap generic motion and sound, ethical advice.

          And, as Gid may not hear to often, the expectation of the private bar (and sometimes former PD) that one can never say bad things about bad lawyers who happen to be PDs because they’re special.

          And still the client goes to prison and the lawyer goes home. What a great profession. And tomorrow, back on the listserv for more advice, comfort and support.

        3. Gideon Post author

          I think the listserve can be useful for many things (and yes, my views on this have changed), but there’s a lot of back-patting and chest thumping mixed in.

          Scott, I think pds are just as bad as private attorneys and I didn’t mean to single out the private bar. In fact, I think the “institutional” problem is worse in the PD system.

          I’ve made it a point to seek out and provide advice to those lawyers – private and pd – who I think could benefit from whatever little wisdom I have.

          But you’re right. It’s a wretched profession in so many ways and noble in so many other(s?).

  2. mirriam

    Well, today I asked about using a registered agent service on the listserv and no one responded yet. I asked about who does plea colloquys in their state (pros, judge or defense attorney) and got a bunch of feedback. But, a lot of the time I am stunned at what lawyers will say in public, and they certainly do get people who agree with them. The other problem with this particular listserv is that it has people who work for the MAN on it. And, I don’t much care for the MAN.

    1. Gideon Post author

      I have yet to determine the science behind getting responses on a listserve.

      How does your listserve permit people who work for the “man”? Ours is defense lawyers only.

  3. mirriam

    It’s the ABA listserv for solo and small firms, SoloSez. I thought that since it was for you know, solos, that if you worked for the MAN you wouldn’t be on there. Dumb me.

    1. Jeff Gamso

      Forget the ABA. Join the local criminal defense bar and check out their listserv. NACDL, too. When they’re good, they’re invaluable. Far from perfect (there’s the backbiting and self-promotion and some CYA lawyers. But they can provide much.

      And except for the odd spy or loose lipped person (there’s no such thing as a truly secure listserv), they really are mostly us.

  4. mirriam

    When I get back to MD, I’m going to rejoin the local bar and NACDL (love). I’m not a member of the ABA, but the listserv provides some cameraderie in an othewise silent day.

    In NY we had a great NYACDL. MD’s isn’t so hot.

    1. shg

      I’m begging you, don’t go there with the NYSACDL listserv. It was internally considered so awful that we seriously considered ending it in the first year. The “advice” ranged from bad to awful, with the bulk of the members begging to be removed and it serving maybe 10% of the membership. And not the top 10%.

      Much of what one perceives as being good about a listserv is relative to where one is positioned in the scheme of CDLs. Young or lazy lawyers find it an easy way to get quick and dirty answers. Q & D is often dead wrong. But the answers seemed wonderful to people who didn’t know any better.

      There are a few great lawyers who provided info to others on the listserv. It wasn’t always horrible. But these were a tiny fraction of the posts, while the vast majority were crap, most notably the daily query, “does anybody have an omnibus motion I can use…”

      In many instances, we never knew just how bad/stupid certain lawyers were until we read what they wrote on the listserv. For the purpose of vetting competency, it was a rope for people to hang themselves.

      1. Jeff Gamso

        The danger of listservs is the bad advice. The tedium is the lawyers who want others to do their work for them.

        On the good lists, those things are far outweighed by the valuable assistance and support. And, at least sometimes, by the discussion and debate of serious issues. And for those who live & practice where there are few lawyers doing what we do (or doing it well), the chance to interact with others can be its own reward, I’m told.

        1. Gideon Post author

          I agree – the listserve can be sporadically useful. I do dislike the endless stream of congratulatory messages that seem to be a fundamental feature.

  5. mirriam

    Wait, didn’t I see a comment from SHG early this a.m. asking you why you said he was wrong? Did it get deleted? Or was I still asleep when I read that?

    1. Gideon Post author

      I don’t know what you’re talking about.

      You are feeling very sleepy…follow my finger. You are now asleep. When I snap my fingers, you will have no memory…zzzz

      1. mirriam

        Um, SHG said that you weren’t getting the support because you were being difficult or whatever. And you responded with a quote from the post and asked “how is this saying your wrong.” I ain’t crazy. . . am I?

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  7. LJS

    You think you have it tough in CT, Gideon — come up to Mass. Here, we don’t have a right to an evidentiary hearing for the habeas counterpart. We have to submit affidavits by the witnesses and trial counsel to show that there’s enough merit to the claim to get to the hearing.

    Trial counsel is required by the ethics rules to turn over the file, nothing more. No requirement to provide the affidavit or even talk to post-conviction counsel. And the absence of the affidavit is presumed to count agains the defendant. At least in CT, you get the hearing, and usually the prosecutor is the one to bring in the trial attorney. (Tho, really, habeas folks, talk to the trial and appellate attorney BEFORE you file — we may be able to save you some time if the issue was discussed with the client and we have the letters to show that the issue is bogus.)

    1. Gideon Post author

      That’s definitely worse – and it was part of the “habeas reform” bill in the lege this year. I don’t understand how one can get affidavits if one isn’t appointed counsel or has the resources to investigate.

      As to the admonition to habeas attorneys, in my experience, they do attempt to contact trial counsel. More often than not, counsel are unwilling to respond or are guarded.

      1. Jeff Gamso

        I try not to engage much in the My-State-Has-Worse-Procedure-and-Courts-And-Law-Than-Your-State game. But LJS does make the sound point that you folks in Connecticut have a comparatively good thing going. You could, of course, both perk up by measuring yourselves against the Texas of the North (Ohio).

        Let’s see: No habeas hearing unless you can show by credible evidence outside the record (which pretty much has to be done through affidavit that isn’t self-serving) that you were denied your rights. You have a right to counsel’s file, though you might have to sue to get it if the lawyer’s gonna be an ass about it. You get discovery before a hearing only if you convince a judge you should. You aren’t entitled to appointed counsel (though many judges will appoint someone if they’re going to hold a hearing). You have to file within 180 days of the date the transcript for appeal was filed or 210 days of the sentence if there is no appeal. The state public defender takes on almost all of the capital cases and a limited number of non-capital ones. A few local PD offices do a few. The rest of the folks are on their own. But if they happen to have counsel, there’s a statute that says the lawyer doesn’t have to be competent.

        And I haven’t begun to address case law.

      2. LJS

        Don’t know about trial counsel, but I’ve had several CT cases where the first I had heard about a habeas complaint about my work on the appeal was when the prosecutor called me a week or so before the hearing.

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