A Solo At the Supremes
Over at The WSJ Law Blog, there's a nice profile of Richard Diaz, the Florida solo who represents Michael Williams, a defendant who is challenging the constitutionality of a federal child-pornography statute in United States v. Williams. Last week, Diaz argued the case before the Supreme Court.
But despite his moment of glory at WSJ Law Blog, Diaz took a bit of a beating over at Volokh Conspiracy, where Eugene Volokh termed Diaz's brief "pretty shoddy." The post generated 66 comments, which discussed whether a brief even matters at the High Court (where talented law clerks could just as easily do the research and analysis) and whether Diaz hurt his client by handling the case himself instead of passing it on to another lawyer.
I'll admit that Diaz's brief isn't a model of clear writing, but I've seen much, much worse. But how does Diaz's brief compared to others filed at the Supreme Court by more experienced practitioners? And why is it that solos who represent criminal clients at the Supreme Court are regularly attacked by "experts" convinced that they could do a better job?
And maybe they could, at least up at the Court. But first, the cases have to get there. And I think that many of the experts underestimate the time and the skill that into shepherding a case from the trial level up to the Supremes (the WSJ post describes the procedural history of how Diaz's client got to the court). Even where a case presents an interesting issue, most clients rarely "buy on." They want to understand the issue and get a sense of their chance for success. They need to figure out if it's worth the extra money and psychological toll to move ahead, or if they're better off just making the best of a result to have a case over.
And the way you get clients to move ahead isn't by pushing your legal analysis. Foremost, you've got to build a trusting relationship with your client so that they'll accept your advice when you recommend pursuing an appeal to begin with. And Diaz established that kind of bond with his client.
Consider this quote from the WSJ Law Blog story, where Diaz describes why his client chose him over a Supreme Court expert:
I got calls from all over the country from lawyers who called themselves First Amendment advocates. Some graciously offered help, others aggressively tried to take the case away from me. One lawyer accused me of not being an appellate advocate and threatened to contact my client and directly to solicit the case from him. So I wrote to Mr. Williams and I honestly told him that I was neither an appellate advocate nor a First Amendment expert but asked him what he wanted me to do. He essentially told me, “I’ve known you for 20 years as a street cop and I’ve seen you work in the federal court building for over 10 years. There’s nobody I want arguing my case in front of the Supreme Court except you.”Perhaps Diaz didn't have the best Supreme Court brief. But he has something far more valuable: the thrill and honor of knowing that his client trusted him with one of the most important legal decisions of his life. And that's something that many Supreme Court experts will never experience.
Great Criminal Law Resource, and Why It Helps Solos
At Illinois Trial Lawyer , Evan Schaeffer shares a wonderfully valuable resource, The Center for Criminal Justice Advocacy. The Center was formed as a free, non-partisan training resource to assist new lawyers in becoming competent criminal practitioners. And one of the Center's missions is to provide newly licensed sole practitioners with materials to provide a structured analytical approach to planning and conducting a criminal trial. The site is chocked full of resources, including sample opening statements, witness interview forms and even law office management tips for solos setting up a criminal practice.
The CCJA site will help far more solos than those who specialize in criminal work - and in fact, arguably provides a more significant service for those who don't necessarily seek to focus on criminal work. In my view, whether you want to practice criminal law or not, handling criminal cases on a court appointed basis offers an excellent way for solos to build skills and make some money at the same time. When I started my firm, I was adamant about getting into court so I signed up for DC's court appointed panel. Within two years, I'd argued several suppression motions and had a couple of bench trials, two jury trials and sentencing hearings. I earned some money (enough to pay rent, at least) and acquired the experience that I'd craved. But I was fortunate: the DC Public Defender's office offered a two day training program that taught new court appointed lawyers exactly what we needed to do from arraignment through appeals. That course, combined with a $60 handbook on DC Criminal Practice and a couple of days of court-watching gave me enough of a foundation to actually procure pretty good results, considering my lack of experience.
The CCJA site provides much of the background that I received in my DC training course (though of course, the information is more general rather than jurisdiction specific). Nevertheless, with a resource like this, new solos who want to sample criminal work either to make some money or get courtroom experience can do so more readily, while still serving clients with the level of competence they deserve.
Should you go with a judge or a jury?
Over at Legal Blogwatch, I posted here about a recent analysis by Volokh guest blogger Andy Leipold, who found that criminal defendants stand a better chance of acquittal before a jury. I thought that the study might help some of my readers who practice criminal law to make more informed decisions about a bench or [jury] box trial.
And by the way, when postings here at MyShingle are slim, you can always catch me over at Legal Blogwatch writing about a variety of legal news stories.
Hey Biglaw - Where Were You When It Mattered?
Apparently, competition for Supreme Court cases has now grown so intense that biglaw firms are trying to poach criminal cases from small fry defense lawyers. That's the distinct impression that I came away with after reading Will Defense Lawyers Accept Help on High Court Criminal Cases?
The article reports that this past term, the Supreme Court heard argument on 22 criminal cases - and according to observers in the defense bar, some of the cases were not argued or briefed particularly well. Whereas once, the purported lack of quality did not matter as much because the the states attorney generals office were also less qualified, the article describes that now, most states have high quality, professional solicitors offices with ample appellate experience.
Most of the lawyers quoted in the article who criticize the small fry's performance are biglaw attorneys who sit on the National Association of Criminal Defense Lawyers (NACDL) board and no doubt are chomping at the bit to log more time before the court. The NACDL attorneys claim that small firm attorneys have rebuffed them when they call with offers of assistance. But NACDL isn't just offering assistance; though the article doesn't say it, I am guessing that in most cases, NACDL lawyers essentially want to take the case on themselves, stealing it from the small firm attorney.
One of the cases that the article cites as an example concerns Michael Studebaker, an attorney from Utah who argued the case at the court [full disclosure: Studebaker is on one of my listserves and during a discussion of whether he should retain the case, I was one of those who strongly advocated that he keep it, provided that he was willing to seek support from experts which he apparently did]. The article critiques the length of Studebaker's brief and quality of his argument. I did not view the argument nor review the brief but as an appellate advocate, I know that you are only as good as the arguments presented below. Once you reach the Supreme Court level, there is only so much that you can do with a case that's not very strong and the impression that I reached from reading coverage of Brigham (for excerpts of the argument, see here), the defense faced an uphill fight.
Which brings me to my last point. If biglaw cares so much about the rights of defendants, then where is biglaw when it matters? Where is biglaw when a case is initially briefed inside a seedy city courthouse or before a judge on the bench in the middle of nowhere? Where is biglaw when a capital defendant needs to raise a novel argument regarding his IQ or mitigating factors or an expert witness who can discredit the prosecutor's DNA evidence? Where is biglaw when the defendant can't pay to order the transcript but didn't qualify for "in forma pauperis," so his small fry lawyer picked up the tab and on top of it, briefed the appeal for free? In appellate practice, the lower level is often where it counts, where arguments are raised or waived or successfully developed or not, and where factual findings that bind the case going forward are made. Up at the Supreme Court level, for better or worse, you play the hand you're dealt. Biglaw might have handled the Brigham case with more deftness, with a 50 page brief and snappy comebacks to the judges, but at the end of the day, I'm guessing that the outcome of what was not a very strong case for the defendant to begin with would have been the same.
And let's be honest. This cry for better quality representation at the Supreme Court is all about biglaw attorneys trying to leach on to the last "open field" of cases available for argument before the Supreme Court. It has nothing to do with protecting criminal defendants. If biglaw really and truly cared about the quality of criminal representation, it shouldn't come come waltzing in at the last hour with a high end defense, like a wayward parent who never spends times with the kids but lavishes them with gifts and cash once a year on their birthday and then wonders why they go astray. For all the money, the parent wasn't there when it counted. And for all the skills and sophisticated arguments that biglaw wants to bestow on a small firm lawyer or a criminal defendant before the court of last resort, truth of the matter is, biglaw wasn't there when it mattered. They have no right to be there now.
Wouldn't It Be Great to Have Your Own Monday Morning Blogger-back?
As an energy regulatory attorney who knew of Enron when it was just another IPP (independent power producer) pushing for deregulation, I've followed the company's rise and fall, up through this last chapter, the Lay and Skilling Enron trials. My favorite source of news and commentary is from the Houston Chronicle's Enron Legal Commentary Blog. It's a truly amazing resource, not just for those with an interest in the trial, but also, presumably for the lawyers involved in the case. Think about it - imagine you are handling a trial and every day when you came back from court, you'd have feedback on your performance, your witnesses and the judge's rulings as well as advice and tips from top legal analysts - all for free! From what I can tell, that's pretty much what the Enron Legal Commentary Blog is providing for the lawyers in the case. For example, consider this post on why people plead guilty when they're not. Skilling's and Lay's defense attorneys could wrap that argument up in their closing to refute the credibility of every government witness who cut a deal to testify against their former superiors.
Of course, the irony is that neither the government prosecutors nor Ramsey and Petrocelli (who represent Lay and Skilling) need the advice; they're all hand-picked, experienced and well compensated for their work. Now, if you could get some legal bloggers to sit in on the run of the mill criminal trials with younger, greener attorneys that go through the court system every day - maybe that would help change some of the outcomes.
Court Appointed Work Is Not Supposed To Be A Full Time Job!
Well after all of the controversy, looks like the Massachusetts legislature will raise rates for court appointed attorneys as reported here in State House OK's Raises for Lawyers for the Poor, David Abel (July 22, 2005). According to the article, lawmakers will increase court appointed rates to $100 an hour from $61.50 for homicide cases; to $60 per hour from $46.50 for nonhomicide Superior Court cases, including sexually dangerous persons cases; and to $50 per hour from $37.50 for district court cases and children in need of services cases, as well as children and family law cases, sex offender registry, and mental health cases. However, the plan also caps the number of hours that each attorney can bill, to 1400 annually. Thus, the maximum that attorneys can earn from court appointed work annually would range from $70,000 (handling lower end cases) to $84,500 (at the upper end).
You'd think that the Massachusetts lawyers would be grateful for the generous pay increase, but they're still complaining:
''In order to do this work well, you have to do it a lot," said Joss Filiault, an attorney from Concord who worked about 1,800 hours as a bar advocate during the last fiscal year. ''It's difficult work that requires expertise. There seems to be an attitude in the Legislature that it's bad to do this work as your primary work. I don't understand that."
But here's the thing: no one is stopping attorneys like Filiault from handling other cases that might pay $200/hour. And even if lawyers believe that they need to focus full time on criminal work to keep skills intact, well, hello - there are many clients who will actually pay lawyers, quite generously, for representation in criminal matters. Think the late Johnnie Cochran or Thomas Mesereau. They handled criminal work and certainly weren't getting $60 an hour for it.
Court appointed lawyers can't expect a guaranteed stream of revenue at private rates. It's a trade off. If lawyers want the security of a flow of cases for which they don't have to advertise or market, then they can settle for court appointed work at a lower rate. If they want to make more, then they need to go out and find the clients who are going to pay - and stop asking the captive ones to fork up even more money.
And as I've always said, court appointed work is interesting and a good way to pay the rent early on or even a way to do work that's got a pro bono element without working entirely for free. But if you want to step up to a successful practice, your plan has got to include weaning yourself from court appointed work. After all, why limit yourself to $84,000 a year when you could possibly make ten times that much?
When a Client's Right to Access Counsel Hangs by A Hook...Of A Bra
Donna Thompson-Schneider is a solo criminal defense attorney who hasn't visited her incarcerated clients. Lest you think that this is another story about an irresponsible attorney giving her clients ground for an ineffective assistance of counsel claim, read on. The reason that Donna hasn't visited her clients is because the prison has a practice of requiring women visitors to remove their bras to clear the metal detectors (apparently, not just underwires but even hooks will set them off). Except...that many other law enforcement personnel, including district attorneys and employees of the public defenders' office can bypass security entirely. Moreover, as Donna discusses here, she was willing to accede to a security wand or even a pat down, but prison personnel rejected both options. After trying for amicable resolution, Donna decided to send this letter to the Wisconsin Department of Corrections.
There's so much wrong with the prison's policies it's hard to know where to begin to attack it. First, there's the obvious intrusiveness of a search policy that requires women to remove articles of clothing, even in privacy (and this assumes that a woman is wearing a shirt that provides adequate coverage without a bra).
Second, the policy jeopardizes security more than protecting it. As Donna describes in her letter, prison personnel were willing to allow her to enter the prison and go up to the restroom to remove her bra. Surely, if she had hidden con-bra-band, she could extract it, leave it in the restroom and retrieve it after passing through security. Seems that the more sensible option would be to simply wand her at the door and be done with it.
Finally - and near to MyShingle's own heart - why should private attorneys handling court appointed work have a more difficult time accessing incarcerated clients or witnesses than prosecutors or public defenders? Court appointed attorneys get so much criticism for being incompetent and irresponsible. And yet when a court appointed actually tries to satisfy professional obligations, she's prevented from doing so.
Why You Can't Just Take Your Client's Word for It
The Supreme Court just issued a ruling in Rompilla v. Beard (see this link at SCOTUS blog for a good summary and links to the opinions) a case that I blogged about several months ago here. In Rompilla, the Supreme Court reversed a death penalty ruling, finding that the Rompilla's defense attorneys were ineffective because they did not review Rompilla's court files which might have yielded evidence of mitigating circumstances that might have spared his life. But, Rompilla's attorneys had interviewed their client and numerous family members who could not offer up any information on mitigating circumstances, which presumably lead the attorneys to conclude that none existed.
What bothered me about the decision then - and now - is that it relieves clients of any responsibility for their fate in the case. Not only does Rompilla impose a duty on attorneys to double check everything their clients tell them, but it also rewards clients who withhold information from attorneys. Had Rompilla been straightforward with his attorneys, the mitigating evidence would have come out - and clients would realize that they need to cooperate with their attorneys for a favorable outcome. Now, it appears that clients need do nothing but sit back and let their attorneys do all the work. For those of us attorneys who seek to empower our clients and encourage them to play an active role in their representation, Rompilla sure doesn't give us much assistance in the way of reaching that goal.
Alabama Court Appointed Attorneys May Strike
We've already had a lengthy discussion over the reasonableness of $30-$40/hour court appointed rates back here. Now, there's an interesting development relating to court appointed rates out of Alabama as reported in Lawyers for Poor Threaten Walkout, David Holden, Huntsville Times (2/22/05). According to the article, the state currently pays attorneys for indigent criminal clients $40/hour for work out of court and $60/hour for in court work. But on February 1, 2005 an opinion by Attorney General Troy King said that payment or the lawyers' overhead expenses is illegal. Lawyers will not receive overhead expenses on requests made after the opinion issued. Now, according the article, Alabama defense attorneys are deciding whether to strike (in which case, they will have David Giacalone to contend with!).
I've already said that fees of $40-$60 an hour aren't inherently unreasonable - and that lawyers should try to develop a diverse portfolio of work to wean themselves from reliance on lower fees. But I especially don't agree with the idea of a separate overhead charge, if only because few attorneys track overhead closely enough to allow it to be allocated. I see nothing wrong with repaying expenses incurred for investigation fees or even legal research like LEXIS - but it should be done on a cost basis and not as an added hourly charge.
A Perspective on the Lynne Stewart Trial
A rather lengthy criminal prosecution in a Manhattan federal courtroom is nearing its end after having begun in June 2004. It has notoriety if only because the lead defendant is a well-known (at least in New York City) and very capable criminal defense attorney. Her name is Lynne Stewart, and even though she’s not on trial for her life, most certainly her professional career hangs in the balance.
I decided to focus on Ms. Stewart (and her co-defendants, whom we’ll get to momentarily) before a verdict is recorded because it doesn’t seem that these observations are in any way dependent upon the outcome. Rather, the spectacle that has unfolded in this case resulted from the federal government indicting her because she was doing her job. Or was she plotting against others on behalf of a client who is a convicted terrorist and will never see the light of a free day?
Ms. Stewart defended Sheik Omar Abdel Rahman, the supposed mastermind behind plans to destroy some New York landmarks. He was convicted of criminal conspiracy several years ago in the same building in which the present trial is going forward. Ms. Stewart has remained his lawyer until mid-2002 for not only appellate purposes but also to serve as an advocate in connection with his prison conditions. Apparently he speaks no English, is blind, is diabetic and has been subject to indefinite solitary confinement.
During this time, too, the Bureau of Prisons issued rules that restrict communications by certain prisoners to the outside world. They’re called SAMs: special administrative measures. In order for lawyers like Ms. Stewart to confer with prisoners like Abdel Rahman, she is required to acknowledge in writing that she (or those with whom she works) will not serve as a conduit in order to broadcast or pass prisoner messages to others. The reverse is also true; the lawyer and her staff are prohibited from passing information to the prisoner that he is otherwise restricted from obtaining.
Ms. Stewart signed off initially and intermittently thereafter as a condition of her ongoing visits and telephone conferences with her client. The same was true of a paralegal and interpreter, both of whom worked for her and who also stand trial on charges of aiding or abetting terrorism as a result of violating the SAMs. Predicates for the violations appear to be providing Abdel Rahman with either letters or news reports regarding events in the Middle East, particularly in Egypt. Also, Ms. Stewart is accused of speaking with a Reuters reporter, disclosing that her client withdrew support for a cease-fire between the Islamic Group and the Egyptian government following a tragic terrorist incident at Cairo’s Luxor in 1997.
Indictments of lawyers, particularly those who practice criminal defense, is hardly novel. Supposedly, they are often targeted in the southern reaches of Florida for allegedly laundering the tainted money of their clients. Sometimes they get too close to their clients in financial scams that eventually draw the attention of postal inspectors, securities regulators or the IRS. And on other occasions, they are accused of stealing from a client’s trust account.
But what is the appropriate response when a lawyer is left to choose between being an advocate for her client and meeting the conditions that arguably restrict a person’s right to counsel or otherwise impinge upon the privilege of confidentiality in attorney-client communications? Even more vexing is the prospect of the federal government’s awesome power unleashed upon you if opting to serve your client rather than the government.
No lawyer should have to suffer the ignominy of FBI agents serving a search warrant upon his or her law office, as did Ms. Stewart. Or being escorted from that law office in steel bracelets, as did Ms. Stewart. And perhaps the overwhelming majority of criminal-defense lawyers will never incur such indignities in their professional careers. But there is always the possibility of that one client walking through the door and in whose way the government will stand like a bully during legal representation.
Ms. Stewart has been flagged as having a long record of taking on unpopular causes, associating with incorrigible types whose civil rights have been trampled and representing notorious individuals. If there is a way to define a heroine or champion by example, then she fits the bill. Yet, isn’t this client characterization applicable to most criminal defendants? Their misdeeds, if believed, precede them. Society pre-judges their guilt, as if sneering at one’s constitutional right to the presumption of innocence. No one would dare share an elevator with that person, assuming he wasn’t already in pre-trial detention. Anyone who engages in criminal defense is necessarily defending civil liberties.
And then there is the second side to this coin. Although conceivable, it’s hard to fathom someone of Ms. Stewart’s ilk plotting to undermine the security of this, or any other, nation. Lawyers are obliged to report future criminal activity or fraud upon the court upon learning of that prospect from a client. Was she party to some diabolical scheme, by simply engaging as a messenger? Violence is universally prohibited, no matter the venue. But what is the difference between the spoken word and conversation that could be interpreted to incite mayhem or destruction? Is such a thing even subject to definition?
Perhaps the Lynne Stewart trial can be distilled as follows. (If for no other reason than the trial record already exceeds 9,000 pages.) One can argue that she’s a criminal defendant because the federal government squares certain communications as being incendiary. Maybe Ms. Stewart would even concede that, in a most technical way, she violated the SAMs but that her actions were not indictable, that her communications between the outside world and a convicted terrorist were simply innocuous.
The distance between counsel’s seat and the chair occupied by his client is negligible. As this case illustrates, a defense lawyer has quickly gone from one to the other. A gap without proportion remains, leaving unresolved a lawyer’s understanding of when the client’s communication ceases to be privileged and becomes actionable to the detriment of his legal advocate.
(Mr. Sindler is a criminal-defense lawyer based in Pittsburgh. An occasional guest on CourtTV, he is scheduled to appear on that network December 20, 2004 during its 9:00 - 11:00 a.m. program schedule.)