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A modest proposal for legal reform

In Massachusetts, two brothers were convicted of murder. During the course of their trial, they agreed to cooperate with a group of filmmakers from Public Broadcasting who made a documentary of their trial. As part of that -- apparently unknown to the brothers and the judge at first -- their attorneys wore concealed microphones.

After being convicted, the brothers -- with new, unwired counsel -- sought a restrial, saying that their rights were violated by this unwanted recording. A judge agreed, saying that their rights to lawyer-client confidentiality were violated.

I happen to agree with the judge's decision in this particular case -- it seems pretty obvious to me that their lawyers were, indeed, blinded by the filmmaker's spotlight and let their legal duties take a secondary role. But I'm going to use it to bring up an idea I had a while ago to help fix our legal system.

One of the most common grounds for overturning a conviction is incompetent counsel. I have no problems with this; everyone's human, even (most) lawyers, and mistakes are inevitable.

But when a lawyer makes a mistake so egregious as to merit an entire retrial, I think that is something else. That requires extra attention.

I'd like to propose that any time a retrial is granted for incompetent counsel, the attorneys that made the mistake in that first trial have their law license suspended immediately. They would be unable to practice law until the state Bar Association investigates and certifies that the attorney in question is, indeed, competent and qualified to continue practicing law. They could hold a hearing, test the attorney, or require them to take and pass remedial classes to prevent future occurrences.

This strikes me as a win-win situation. Either lawyers will cut back on using the "incompetent counsel" argument, out of fear that it could be used against them, or lawyers will start preying on each other with a vengeance.

And the argument is seductively simple. If a lawyer makes that serious a mistake, then they OUGHT to be stopped from practicing law until they prove they won't make that level of error again.


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Comments (15)

I move we apply the same st... (Below threshold)

I move we apply the same standard to Doctors...
Though niether has a snowball's chance, a worthy thought.


It's a great idea as long a... (Below threshold)
Jade Philosopher:

It's a great idea as long as all attorneys are good and decent, both willing to admit their own failures and willing to draw attention to the failures of others, knowing in the latter case that they are setting themselves up for similar but spurious claims against them.

As Yogurt points out, doctors already do this and it don't work so good.

Fine, give them a new trial... (Below threshold)
Bob Jones:

Fine, give them a new trial, but I want their greedy lawyers disbarred and I want them to pay for all the costs of the new trial.

what a crock.

This rule would leave Nebra... (Below threshold)

This rule would leave Nebraska with very few lower court judges, many of whom were accused of incompetence by unhappy clients before taking the bench. Why not just make lawyers whose bungling results in a new trial pay all costs associated therewith?

It isn't that simple. While... (Below threshold)

It isn't that simple. While the example here is pretty egregious, most ineffective assistance of counsel allegations are much less so. In fact, I think it's fair to say that most such allegations are desperation moves resorted to by appellants with few or no other grounds for appeal. A rule like the one you propose would have two effects: 1) It would cause a lot of attorneys to refuse to take difficult or complicated cases, to the detriment of the overwhelming majority of criminal defendants who receive perfectly adequate representation, and 2) make it that much harder for those who have legitimate ineffective assistance claims from getting them vindicated (the cost of the rule to the attorney will necessarily result in the bar for finding that to have occured to rise).

The current standard by which such a thing is judged is what a reasonably competent attorney of similar experience would have done. A simple oversight by an overworked lawyer (say, for instance, a public defender with 300 cases) can lead to one. If the error goes beyond simple negligence - as the actions complained of here seem to - they are almost assuredly covered by the Ethics rules of the state bar of which they are members. Further, the defendants' rights can be vindicated without the rule change you propose (as here, where they're getting a new trial), so I cannot see any reason to change the rules about how ineffective assistance claims is needed.

Why not just make lawyer... (Below threshold)

Why not just make lawyers whose bungling results in a new trial pay all costs associated therewith?

I'd add that to Jay Tea's idea.

Please consider the tremend... (Below threshold)

Please consider the tremendous caseload and relative inexperience of most public defenders, and the huge financial disincentives to becoming or staying a public defender, and then reexamine this suggestion...

Wait a dang minute! Jay Tea... (Below threshold)

Wait a dang minute! Jay Tea, exactly WHAT about the lawyers' misbehavior proved that the defendants did not receive constitutionally sufficient representation? There's nothing in the article about the ruling. Sure, I can IMAGINE how it might have impermissibly impacted the defense. But in the law I know (which, thank God, is not Massachusetts') it takes smore than guesswork to overturn a conviction.

Let me suggest that most everyone here has done the same thing as may have been done by most everyone associated with the case: ASSUMED harm to such a degree that the trial was unfair or that the conviction was wrongly obtained.

It's not really our fault; we're victims of a 40-year propaganda war. We've been conditioned by the anti-law-and-order special interests (ACLU, Partners Of Prisoners, etc.), through their constant shrieking about imagined "injustice", to automatically assume every criminal conviction holds a major screw-up which, shocks, shocks I tell you, the conscience. Pardon my yawn, but I've seen them and been on to their imperial new clothes for almost 30 years.

Instead, based on the facts available in the post and article, we readers of Wizbang don't know HOW the clients were harmed. All we can say is, it hasn't even been alleged how they were hurt, much less demonstrated that it actually happened. Just an assumption.

So, even though a defendant has a self-interested asshat for a lawyer, it doesn't necessarily follow that error suffcient to overturn the conviction ocurred. And because this gun was more than likely jumped, the minding-their-own-business, paying-their-taxes, obeying-the-law citizenry must endure the galling event of seeing two convicted murderers returned to their midst for reasons not connected to anything the police or prosecutors did wrong.

So let's step back and ask: how were they hurt?

Hmmm.1. I'd like p... (Below threshold)


1. I'd like part of the penalty is that lawyer's for the previous trial have to pay for the legal cost of the second trial.

2. Just speculation on my part but I assume that death penalty opponents use this "ineffective counsel" stuff to bugger up the legal system when dealing with death penalty cases.

In which case it would be doubly useful to apply a penalty to legal counsel that has been found to be "ineffective".

And really now. How could they complain?

I have a modest proposal of... (Below threshold)

I have a modest proposal of my own. All lawyer-client consultations should be recorded and then immediately sealed and filed with, say, the local DAs office. A warrant, based on credible evidence of wrong-doing, would allow such recordings to be unsealed and handed to Law Enforcement. I reckon this would have a salutary effect on crooked lawyers who would be risking exposure, trial, and a custodial sentence.
But it would also provide a safeguard for good, competent lawyers who may at some time be accused of incompetence by a bitter, disappointed client. (We are consistently informed by every con in the prison system, that they are all innocent victims of biased, bungling, alcoholic lawyers, so in theory they should welcome a chance to prove it.)

Judges can report incompete... (Below threshold)
Starboard Attitude:

Judges can report incompetent attorneys to the state bar for investigation, and this is done all the time. In California, the bar is very strict and they are busy censuring, suspending and disbarring bad attorneys every day.

Furthermore, the aggrieved former client can sue the bad lawyer for malpractice. It happens all the time, and large monetary damages are frequently awarded. After all, juries tend to be biased against a defendant attorney and they love stickin' it to da man.

But do you really want to impose a system whereby every criminal defense lawyer is exposed to the risk of losing the equivilent of 2, 3 or 4 years salary every time there is a successful prosecution? A successful prosectution invariably leaves an unhappy defendant pointing the finger at his attorney. Hindsight is always pretty harsh in its depiction of how the attorney could have won if only he handled various tactical dilemmas differently--and it seems to blur all the valid reasons for taking the tact that ultimately led to the loss. Often the objectively correct move turns out to be a loser (ever stand on 17 in blackjack, only to find you would have drawn a 4 to make 21?) Under these circumstances, every losing attorney is severely at risk, and unfairly so. I think the proposed system would kill the criminal defense bar, and wipe out the entire concept of public defenders.

I'm not sure that's what we want.

Clarification:I wa... (Below threshold)
Starboard Attitude:


I was referring to the comment about making the incompetent guy pay for the re-trial.

Also, I'm with Jumbo.... (Below threshold)
Starboard Attitude:

Also, I'm with Jumbo.

The wired attorneys violated one of the most important cannons of ethics, and they should be disbarred if they haven't been already.

But how did the obliteration of the attorney-client privilege lead to the loss? There are no facts in the article to establish causation and the need for a re-trial.

Monty, I hope you don't really believe what you wrote.

What about prosecutoriual m... (Below threshold)

What about prosecutoriual misconduct? More cases are reversed becasue of that bundling? Does the individual DA pay?

1. Unless the information c... (Below threshold)

1. Unless the information collected by the attorney's was used against them at trial, then no retrial should have been afforded them, IMO.
2. Along with pulling the attorney's license, they should have to reimburse the State for the cost of a new trial.






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