Last week we heard from an attorney who takes contract cases
from the Arizona public defenders office when the public defender is conflicted
off the case. Listening to him talk implicated many ethical issues when it
comes to providing clients with competent counsel. As I have accepted a job at
a public defender office outside of the state of Florida following my
graduation, I was interested in hearing what he was going to say when going in
to this talk, but unfortunately I was left perturbed and disturbed by the
callousness and lack of care that this attorney showed when talking about his
indigent clients.
Taking on criminal cases and being completely unwilling to
take the cases to trial, and with the only goal to be to settle the case with a
plea deal as soon as possible is an unethical form of representation. This is
lawyering in the interest of the lawyer rather than the interest of the client.
Pleading a case without doing any investigation, without even waiting for
potential exculpatory information to be disclosed is a terrible way to practice
criminal defense.
The attitude of this lawyer came across completely when he
talked about how he used a separate phone for his contract clients. He talked
about them with disdain, and with no empathy for their struggles with
transportation or making court case. This was shown in particular in his story
about a client who missed two court dates and his explanation being “well, the
court did tell her.” As the lawyer for the client, sometimes what is required
is reminding the client over and over about what date they must show up to
court. When you are representing someone, it is your job to help them interact
with the court, and this includes making sure they understand the dates that
they must be present. It is not a burden or an annoyance to make sure that your
clients are aware of their responsibilities to the court and their deadlines,
it is your job as their attorney. This attorney has signed up to represent
indigent criminal defendants but has the attitude that they are not even worth
his time.
Furthermore, this attitude of sign-a-client, plea-deal-a-client,
further contributes to the over criminalization and over charging of poverty
within our society and within our criminal justice system. In too many
instances, people are arrested by police and charged as a result of mental
health, substance abuse, or poverty circumstances, and their public defender is
the only person that has the ability to make a difference in that person’s
life. The attorney we heard from last week did not appear to care whatsoever
about these issues, or even his clients as individuals, and instead appears to
be proud that he has found a way to profit a few dollars by acting as nothing
but another length of conveyor belt that helps take indigent clients straight
from the back of a police car to a sentencing hearing. For someone who claims
to be distrustful of the government and skeptical of the state, it appears as
if he has become just another tool of the state in criminalizing and punishing the
act of being poor.
I was not impressed in the slightest by how he described his
practice, and I certainly hope that I will never become as jaded as he has in
the representation of indigent clients and the practice of criminal law in
general. I have no doubt that however difficult it may be to represent indigent
clients, and how frustrating it must be to be paid very little to take on
difficult cases, that those people still deserve adequate and competent zealous
representation of their rights and I have very little confidence that his
clients are receiving that based on his talk to our class.
The economics of law practice makes it impossible to take these cases to trial and stay in business. If the lawyer cannot survive financially, there will be no one to provide even minimal representation to these clients.
ReplyDeleteThis is not a problem any one attorney, or even a small group of attorneys, can solve. It is a societal problem. So long as we tolerate a court system that compensates appointed counsel on a flat fee basis whether the case is pled at the first appearance or goes to a jury trial, we get the justice we deserve.
In my line of work, termination of parental rights is roughly the equivalent of a capital criminal case. It is the equivalent of the death penalty for a parent's right to continue to be a parent to their child. It is the permanent severing of the most important Constitutional right other then life itself. Yet appoint counsel in child welfare cases are also usually compensated by very low flat fees.
At the appellate level, appointed counsel handling very complex termination of parental rights appeals are usually paid a flat rate (in my state) of $1,000 or less. A privately retained attorney would charge $10,000 to $15,000 for the same appeal involving the same number of hours of work and the same legal issues.
Whether we like or dislike Alex's approach, he was just reflecting the economic reality. If he didn't plead out the appointed cases early in the process, getting pretty good deals for many of them based on his experience, he couldn't afford to take the PD contract at all and there would be no one for these defendants other than people with much less experience who likely would not get the same deals Alex can get.
One of the struggles of law practice is trying to maintain your idealism in the face of economic realities.
The client has a constitutional right to have counsel appointed to them, and that does not change no matter what the attorney has contracted to receive as payment. I think that any business model which relies upon not ever taking any client to trial, even if they may have a chance to prevail at trial is an unethical way of practicing law. Using your example, I am sure that any family law counsel who takes on parental rights termination cases and always has their client agree to give up their child because they do not want to take the case to court would not be providing adequate representation. The lawyer has an ethical duty to their client, and if they cannot afford to represent the client in the clients best interest, then they can withdraw due to financial hardship. I do not think that someone who never takes an appointed case to trial is negotiating a good plea deal, because the best deal for the client is always a not guilty or dismissal. In his experience, his client always gets a conviction on their record. I also do not think that a lawyer who the DA knows will never take a case to trial is in a good position to negotiate a favorable plea deal.
DeleteRegardless of the financial difficulties that a lawyer may face, the ethical rules, and their clients constitutional rights still are more important.
You are of course correct about the Constitution and its protection for those accused of crimes. The problem is reality. Where will the lawyers come from to take these cases to trial? PD offices have nowhere near the staffing or resources to do this, and they usually do exactly the same thing Alex does because if they take one case to trial, there are 20 other defendants they can't represent.
DeleteMaybe the answer is mandatory court appointments. All licenses lawyers, no matter their work circumstances (private practice, house counsel, big firm or solo, public sector) are required to take one criminal appointment per year and take it to trial if that is what the client wants. Of course, that could mean that the lawyer or the lawyer's law firm give up perhaps 10 to 20% of that lawyer's hours or productivity for the year.
Unless and until we get serious about funding indigent defense by compensating by the hour, and at a reasonable hourly rate, instead of a very low flat fee, this will continue to be a problem. The only way to solve it is probably an increase in taxes dedicated to indigent defense. How many people would vote for that? How many politicians would be re-elected if they shifted appropriates away from other priorities to fund the courts' indigent defense costs?
Until society changes, this problem will not go away.