"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Wednesday, October 15, 2014

Why it is not economically feasible for an assigned counsel to provide truly effective representation

A lot of people, prospective and current clients, complained to me about the quality of assigned representation in court.

The complaints are usually that the assigned attorneys do the following:

1) Do not talk to their clients, do not explain the essence of proceedings, the clients' rights;

2) Steer people into unfair settlements in civil cases (child neglect, child custody) or into plea bargains in criminal cases where the case could be won with proper discovery and motion practice;

3) Waive important rights on behalf of criminal defendants without advising them of those rights or asking whether they want to waive those rights. Usually this is the right to a speedy trial, in one court I saw counsel routinely waive criminal defendants' right to remain silent;

4) in felony cases, assigned counsel routinely waive their clients' time limitation for a felony hearing (144 hours since the arrest and detention), and keep their clients unnecessarily in jail while they can be released for failure to give a felony hearing, and while such a waiver gives the prosecution more time to coach its witnesses; waiver of a felony hearing, which is what assigned counsel regularly do, deprives the defendant of the most significant opportunity before trial to collect statements from the accusers at the time prosecution did not yet have time to coach their witnesses, for impeachment purposes at trial;

5) assigned counsel routinely have their indigent clients waive their right to be indicted by the grand jury (in writing, without explaining what exactly is being waived, or what is the importance of the grand jury proceeding);

even though, sadly, there is a saying that grand juries can indict a ham sandwich, it is not always true.

Grand juries do refuse to indict occasionally, do indict at a lower level than what is requested by the prosecution, and forfeiting the right to be indicted without receiving anything in return, as it often happens in assigned cases, is a gross disservice to the client.  Grand jury testimony of the accusers must also be provided to the defense counsel at trial and can be used for impeachment purposes.

6) I have yet to see assigned counsel who would do motions for his/her client, and even doing routine discovery is very rare for assigned counsel in criminal cases; I never saw any discovery from assigned counsel in Family court cases;

Motions in a criminal case may lead to obtaining pretrial hearings, which may serve to (a) suppress physical evidence, identifications or statements; (b) provide one more source of pre-trial statements from the accusers for impeachment purposes.

7) Assigned counsel practically never engage experts and investigators at county expense, to which their clients are entitled.

Thus, by waiving felony hearings, waiving grand jury indictments, waiving pretrial discovery and motions,  waiving their clients' rights to experts and investigators, assigned counsel deprive their clients of any meaningful way to impeach their accusers at trial, and this way it is easier to steer defendants into plea bargains on terms that could have been a lot better had the assigned counsel did their job properly;

8) clients often complain that it is impossible to have their assigned counsel raise sensitive subjects on motions, such as police, prosecutorial and judicial misconduct.

9) in both civil and criminal cases, people complain that their assigned counsel do not prepare fir trial even if the clients want a trial, with predictable results.

Why all of that is happening?

I see two main reasons, and neither one has anything to do with interests of the clients.

First, economy is bad now, and the market of legal services is shrinking.  Assigned cases provide a source of income to attorneys ($60.00 per hour for.misdemeanor criminal cases, $75.00 per hour for felony criminal cases and for Family court cases). Attorneys who do too much work for their clients, resulting in higher bills to the county per client, do not get assigned again.  Assignments are in the hands of presiding judges.  If the assigned counsel challenges a particular judge for bias, he or she can say good bye to assigned cases from that judge.  For many attorneys, assigned cases constitute a substantial portion of their incomes, and they will not risk their opportunities fir future assigned cases to help one client, no matter what the attorney's oath of office or rules if professional conduct say.

I have yet to see an attorney to be publicly disciplined for neglecting his or her client in any of the above described ways.

Rules of malpractice in New York for criminal cases are such that a criminal defendant may not sue his or her attorney for legal malpractice, unless the criminal defendant first overturns the criminal conviction caused by such attorney malpractice.

It is notoriously hard to overturn a criminal conviction on appeal, and it is practically impossible to overturn a conviction on a plea bargain, especially where part of the plea is a written waiver of the right to appeal.

Therefore, an assigned counsel who did a sloppy job, waived important rights of his or her client for the counsel's benefit and not the client's benefit, and steered the client into a non-beneficial plea bargain, does not have anything to fear, but has the good graces of the judge to gain in.order to secure future financial stability through more assigned cases.

The second reason for sloppy work of assigned counsel is even easier, it is cash flow.

Unlike the private counsel who gets a retainer down at the beginning of the case to cover substantial amount of his/her work, and who is paid by private counsel further, during the case, when the retainer is depleted and who is usually paid a separate retainer if the case goes to trial, before trial, the assigned counsel is only paid at the conclusion of the case.

In other words, the State of New York makes assigned counsel finance litigation in assigned cases, including attorney's services and out of pocket costs such as paper, copying, postage, gas for driving to and from the court, legal research, and that attorney financing of cases is interest-free, no matter how long it takes to bring the case to conclusion - and even then it takes time for attorney vouchers to be approved and paid.

It is then not surprising that assigned counsel's financial strategy is to keep in good graces of judges by not raising sensitive issues and thus keeping assignments coming in, take on many assigned cases at the same time, do the least amount of work requiring out of pocket expenses and bring cases to conclusion as quickly as possible to get paid sooner and keep the cash coming in steadily.  Apparently, if the clients' rights need to be waived to achieve that cash flow goal, the clients are sacrificed, with impunity.

These are purely economic incentives for assigned counsel to do sloppy work fast, and as long as assignments are in the hands of presiding judges and assigned counsel are not paid nor reimbursed for out of pocket expenses or given money for such estimated expenses, same as private counsel are, up front and during the pendency of the case, effective and independent representation of the indigent will remain a myth and a farce which is what it is now in New York.

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