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April 15, 2012

"Agency and Equity: Why Do We Blame Clients for Their Lawyers' Mistakes?"

The title of this post is the title of this notable new Foreword in the Michigan Law Review authored by Adam Liptak, which gets started this way:

If you were to ask a child whether it would be fair to execute a prisoner because his lawyer had made a mistake, the answer would be no.  You might even get a look suggesting that you had asked a pretty stupid question.  But judges treat the issue as a hard one, relying on a theory as casually accepted in criminal justice as it is offensive to principles of moral philosophy.

This theory holds that the lawyer is the client’s agent.  What the agent does binds the principal. But clients and lawyers fit the agency model imperfectly.  Agency law is built on the concepts of free choice, consent, and loyalty, and it is not unusual to find lawyer-client relationships in which some or all of these elements are missing.

Let us put to one side the ideal case: a sophisticated client with money. That client presumably chooses a good lawyer, monitors and controls the lawyer’s work, and fires her if she turns out to be disloyal or incompetent.  The lawyer in that case really is the instrument of her client’s will, and so the client may fairly be tagged with the lawyer’s errors.

Now consider a client who is poor, uneducated, mentally troubled, scared, or imprisoned—or perhaps all of these things at once.  And then add to this mix a lawyer who is not retained but a volunteer or assigned by the state.  Does it still make sense to consider such a lawyer an authentic agent of the client?

April 15, 2012 at 05:47 PM | Permalink


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The reason the system is broken is because people have an incentive to break it. That's the core of the problem: ends justify the means and if the means to the end are a broken and dysfunction counsel system then that's the price one pays. The truly perverse aspect is that both prosecutors and defendants have an interest in the system being broken because both sides perceive that their interests are better served that way.

But I fully place the blame on the "life lovers" for this problem. They started it. So I completely unsympathetic to claims Adam raises.

Posted by: Daniel | Apr 15, 2012 9:05:31 PM

"If you were to ask a child whether it would be fair to execute a prisoner because his lawyer had made a mistake, the answer would be no."

Only the prisoner is not executed because his lawyer made a mistake. He's executed because he murdered a person or persons, often cruelly and without remorse.

The emphasis placed on lawyers is not testament to their importance but to their vanity.

Posted by: Bill Otis | Apr 15, 2012 9:30:29 PM

And if the prosecutors make a "mistake", Mr Bill? You say that doesn't happen either.

New Research Illustrates Lack of Accountability for Prosecutors in Texas

Judge Orders Court of Inquiry into Possible Prosecutorial Misconduct That Contributed to Michael Morton’s Wrongful Murder Conviction

Illinois Appeals Court Throws Major Blow to Lake County Prosecutor’s Effort to Retry Man that DNA Testing Has Excluded as Source of Evidence in 1986 Rape

Texas Court Rules There Is Probable Cause to Believe Former District Attorney Violated State Law in Michael Morton Prosecution

Innocence Project Research Illustrates Lack of Accountability for Prosecutors Who Commit Misconduct

Innocence Network Organizations Secured 21 Exonerations in 2011

More: http://www.innocenceproject.org/news/Press-Releases.php

Posted by: George | Apr 15, 2012 11:37:34 PM

It is called professionalism. The duty is to the client, no matter the payor. The duty is to zealous representation, no matter the oversight ability of the client. End self-regulation, and have government oversight of competence if anyone disagrees with the current situation of agency.

The number of retrospectively identifiable mistakes, or wrong turns taken can be infinite. Lawyer mistakes that do not not result in a wrong verdict are pretexts, and should be sanctioned if brought up in any appellate court. That is why I have another original proposal. All important verdicts should be reviewed by experienced investigators, not by know nothing about nothing judges on an appellate bench, usually political election losers seeking a sinecure. The review should include video recordings of all interrogations to preclude those in which false memories were implanted by the interrogator. All witness testimony must be corroborated by physical evidence or excluded as a new standard.

The rate of false verdicts is appalling. The equivalence of outcomes between public defenders and pro se criminal defendants is appalling. The atavism of Medieval Rules of Evidence is appalling. The power of know nothing lawyers on the appellate bench, real dumbasses, facing and ruling on highly technical subject matter is appalling. The adversarial system copying the disputation method of seeking answers to difficult problems derived from Scholasticism is appalling. The violation of the Establishment Clause by the entire criminal law's intent and supernatural mind reading requirement is appalling. In death penalty and other harsh penalty cases, the "beyond a reasonable doubt" standard (about 80% certainty) is appalling.

Posted by: Supremacy Claus | Apr 16, 2012 2:23:04 AM

George --

"And if the prosecutors make a 'mistake', Mr Bill? You say that doesn't happen either."

I don't recall saying that. Would you please quote where I did?

I have said that there is no proof accepted by neutral parties that we have executed an innocent person in the modern era. There was, however, copious lying by abolitionists indignantly claiming that Roger Keith Coleman was innocent. Care to acknowledge that?

Posted by: Bill Otis | Apr 16, 2012 8:15:04 AM

Very good, Bill. The ole can't-prove-the-negative defense. You death-penalty champions owe a big debt of gratitude to the innocence projects for saving you from yourselves.

Posted by: John K | Apr 16, 2012 9:06:05 AM

I think it's a worthy question, but Liptak's premise is undermined by painting with too broad a brush about the level of representation afforded indigent defendants. The question is relevant whether the defendant pays his own way or not. To suggest indigent defendants they cannot expect agency on the part of their "volunteer" lawyers is to suggest that the ethical obligation of lawyers depends on how much and by whom they are paid.

Admittedly, I am biased. As a public defender I make a fraction of what I could in the private sector. But I can do so without having to fret about whether my fee is the product of ill-gotten gain or represents my client's grandmother's life savings. It's a choice. And I can be fired by my client just about as easily as any other lawyer. At least where I practice, defendants' complaints about their court-appointed lawyers are routinely entertained in status conferences; the prime complaint is that a lawyer is not doing what a client believes should be done in his case...in other words, acting as his agent.

All that said, there are cases of egregious failures by defense lawyers, paid and otherwise--failures to communicate, to investigate, and to advocate. In cases where the defendants, irrespective of their alleged or actual crimes, are vulnerable due to limited intelligence or mental health issues, such failures can be devastatingly unjust. I'd hope Liptak could start a discussion about that without kneejerkingly (if unintentionally) denigrating lawyers who work on behalf of indigent defendants.

Posted by: AFPD | Apr 16, 2012 9:28:53 AM

I agree in part with AFPD. Over the many years I spent as an AUSA in EDVA, my experience was that the FPD was at least as good on average as privately retained counsel, and the quality of each was high.

Posted by: Bill Otis | Apr 16, 2012 3:27:27 PM

John K --

"Very good, Bill. The ole can't-prove-the-negative defense."

Take it up with your own people, John. They claimed loudly and for years to be able to prove a negative about Coleman. Of course they couldn't do so, not because it's inherently impossible, but because what they were saying was just a pack of falsehoods. Now they claim with equal indignation to be able to prove a negative about Troy Davis and Willingham.

You're pulling the old abolitionist trick: You claim not to be able to prove a negative, except when you claim you can.

Far out.

Posted by: Bill Otis | Apr 16, 2012 5:30:19 PM

How does this relate to plea bargaining? That is the source of 90 percent of all convictions. If every counsel were truly effective in every case, then every counsel would challenge the state to a jury trial.

Posted by: Jardinero1 | Apr 16, 2012 5:33:34 PM

The "people" in general and/or the victim(s) of the specific crime(s) charged don't have any practical control (other than waiting for the next election) over the selection or supervision of the prosecutors staffed on a particular case, yet they are bound by the screwups of their "agents," with jeopardy attached if those screwups lead to the acquittal of a factually-guilty defendant.

Posted by: JWB | Apr 17, 2012 12:22:49 PM

The problem is even worse. Much of being a trial lawyer involves a large number of small decisions. Some are legal. Some are strategic. Some are just plain personal. Do we really want to blame a hapless client for the following:

1. A decision not to challenge a grand jury proceeding, so as not to let the state know a defense.
2. A decision to wear a brown suit during opening
3. A decision to be dramatic during voire dire
4. A decision to kick a guy off the jury that was wearing a hat
5. A decision to spend 45 minutes in the office of a DA, wearing him down until he gives you what you want, only to have it overruled by the his supervisor and a defense revealed to the prosecutor.

Posted by: S.cotus | Apr 20, 2012 2:46:48 AM

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