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May 16, 2018

"The Right to Two Criminal Defense Lawyers"

the title of this post is the title of this notable new article authored by Bruce Green now available via SSRN. Here is its abstract:

In conjunction with a symposium on “disruptive innovation in criminal defense,” this article proposes that indigent defendants be assigned two lawyers each of whom would have primary responsibility for different functions -- the “settlement lawyer” would have responsibility for the counseling and negotiating roles while the “trial lawyer” would be the principal advocate. 

The proposal to divide defense representation between two lawyers, as a potential “disruptive innovation”, provides an occasion to consider various problems associated with indigent defense apart from underfunding and excessive caseloads.  These problems relate to how some defense lawyers think about and structure their work, where they choose to direct their energy and how they prioritize their time, how they respond to incentives, preferences and even unconscious motivations, and how they relate to prosecutors, clients or others in the criminal process.  Whether or not a right to two lawyers is realistically achievable, the proposal provides a vehicle for contemplating deficiencies in criminal defense representation and potential responses.

May 16, 2018 at 01:29 PM | Permalink


Let's call this the Super Full Employment for Lawyers plan.

There are enough problems getting adequate representation even under current requirements to make this sound idiotic on its face.

Posted by: Soronel Haetir | May 16, 2018 5:15:40 PM

Yes, we need double the number of government funded defense lawyers. I also propose to have 2 prosecutors for each defendants, one to formulate and manage the plea, the other to litigate the case in a tribunal. That way we can have 4 lawyers per defendant, and not just three.

Beyond those four lawyers, I propose to have a lawyer malpractice expert and litigator for each side, to terrorize the lawyers on each side to comply with the Rules of Conduct, plus the dozens of obligations of each in the Rules of Evidence, of Criminal procedure, and in precedent in the common law.

That way each defendant would be served by 6 lawyers.

Then the victims need lawyers to navigate the complex legal system. If there are 2 victims, then there would be 8 lawyers a case.

Posted by: David Behar | May 16, 2018 9:47:20 PM

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