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October 20, 2012

"Prescriptions for Ethical Blindness: Improving Advocacy for Indigent Defendants in Criminal Cases"

The title of this post is the title of this new article appearing on SSRN and authored by Tigran Eldred. Here is the abstract:

The reasons criminal lawyers so often fail to provide adequate legal representation to indigent defendants are well-known: severe underfunding, excessive workloads and other disincentives for competent representation work together to encourage quick disposition of cases, with little regard for the quality of legal services that are provided.  Yet, largely overlooked in this equation is whether defense lawyers who provide subpar representation are aware of their own shortcomings.

To answer this question, this article focuses on the psychology of ethical decision-making. Relying on research that reveals the subtle ways that self-interest can cause people to overlook unethical behavior, it argues that defense lawyers will tend to be “ethically blind” to their own poor performance.  Concluding that lawyers who suffer from ethical blindness cannot be expected to improve the quality of legal representation on their own, it recommends ways to reduce psychological barriers to competent representation that have proven successful in other contexts.

October 20, 2012 at 05:09 PM | Permalink

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Comments

The commodification of poor defendants is an outrage among innumerable others. The profession is run like a criminal cult enterprise, threatening the public safety and the continuation of American civilization. The plea bargain is a fictitious charge, often accepted by totally innocent defendants.

There is no recourse in legal ethics. Disciplinary counsels will only enforce four rules of conduct, those that serve the economic interests of the profession. They will destroy a lawyer who commingles funds yet will never enforce against the filing of meritless claims. Most enforced cases are filed by members of the hierarchy against lawyers that offended them. Then, no matter how rich, smart, or aggressive the lawyer, they destroy his life. If the public is oppressed by this tyrannical hierarchy, the lawyer is doubly so, and the regular judge triply so.

That leaves no legal recourse, only a campaign of vilification, boycott, and eventually mass arrest, brief fair trials, and the execution of the entire lawyer hierarchy. If the hierarchy that replaces does not learn, eradicate it. Every social pathology can then be solved in the nation.

Posted by: Supremacy Claus | Oct 21, 2012 12:40:22 AM

there are a number of problems with our indigent defense programs. none are solved by another superior article picking on the people who actually do it. they are not above criticism, but all these "scholars" should stop writing articles and, sorry doug, amicus briefs, no one needs and go do a few cases and show us how you do these cases right with few resources. no cheating---you can't use your twenty students to do it for you. we don't have twenty intelligent bodies to outsource to.

Posted by: big bad wolf | Oct 22, 2012 10:41:12 PM

Psychological barriers to competent demonstration that have proven winning in other contexts,

Posted by: dissertation layout Idea | Oct 24, 2012 9:24:36 AM

Big Bad Wolf: I read the article and I agree. Just when I got used to being called "incompetent" and "lazy," some law professor had to pile on by calling me "ethically blind."

I think the perspective of the article might have been very different if the author had spent time shadowing attorneys who actually handle indigent defense. He identifies some problems, but the article is pretty divorced from reality for me.

Posted by: Bryan Gates | Oct 25, 2012 12:28:30 PM

"Prescriptions for Ethical Blindness: Improving Advocacy for Indigent Defendants in Criminal Cases"

Posted by: Wholesale Snapback Hats | Nov 28, 2012 10:16:55 PM

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