You Can’t Get Upstream Without Swimming Against the Current

“It’s a simple throw down case, you should be able to prepare for that trial in a day.”
“I can look at the police report and tell whether the case should be a plea.”
“My client told me he did it, what else is there to do?”

We have all heard lawyers make similar statements. Often they are uttered by attorneys who are well-intentioned. Almost always they come from defenders who have been shaped by systems that demand that they handle far too many cases, with far too few resources, and far too little time. To survive in these systems, lawyers learn to adapt. Forced to triage, these advocates make decisions about how to invest their scare time and energy. And because we, as a country, have never taken the right to counsel seriously, this is the reality that faces almost all of our nation’s public defenders.

These lawyers are the best of us. They are part of a mission that is at the foundation of our democracy. They deal with challenges that most lawyers cannot fathom. And they are asked to do this with one hand tied behind their back.

The pressure to abandon their ideals drives many to leave the profession prematurely. For those who stay, a culture that defines success as processing many people as quickly as possible will threaten to make them a little more jaded, a bit more cynical, a tad more accepting of the status quo.

Before the lawyer knows it, s/he can come to see the ability to very quickly assess which cases deserve his or her energy and which do not as the mark of a good lawyer. While learning to take shortcuts (making educated guesses about how to most effectively triage) may be a reality for the public defender in a broken system, the real danger is when the defender sees this as the mark of a good lawyer as opposed to a necessary evil that renders him or her ineffective in those cases.

And so we see lawyers who believe they can effectively handle 200, 300, 400 cases per year because they believe they can adequately resolve some in two hours. This frequently happens when a defender meets a client for the first time who says he wants to plead guilty that day, and the police report strongly suggests that the state has evidence to support a conviction. In many systems, defenders routinely assist clients to plead guilty at first appearance. But in doing so, the defender is failing to meet his or her independent obligation to investigate, to research relevant legal issues, to spend time advising the client of the alternatives, and to explore potential consequences of the conviction. This can’t be done in two hours. Even in the simplest misdemeanor.

Of course many of our lawyers are forced to triage at times. But they need to realize they are being forced, by an unjust system, to be unethical. They need to forgive themselves for things beyond their control. But the CANNOT accept this as ok. While the lawyer may be forced to choose when to be ineffective, s/he should never lose sight of the fact that some clients are not getting what they deserve. Not because they are bad lawyers, but because the system is broken.

A group of chief defenders who are part of the Gideon’s Promise community recently met to discuss strategies to deal with caseload pressures. Part of the discussion was about the importance of making sure their own defenders remain acutely aware of what every client deserves, even when they are not capable of living up to this ideal. This group understood that the most dangerous threat to our ability to demand the resources we need is when we ourselves come to accept a lower standard as okay. Lawyers have an obligation to their clients to speak up when they are too overwhelmed to behave ethically. Supervisors have an obligation to support the lawyer and work to ease the burden. Chiefs must create a culture where this is expected. And collectively, the office must work to develop strategies to provide ethical and effective representation. And while this will not happen overnight, we cannot allow the daunting task of reform drive us to complacency and inaction.

I thought about this discussion as I recently read the Supreme Court opinion in Burt v. Tiltow. While it was decided on other grounds, it touches on the lawyers obligation to independently do lawyering “stuff” (my words, not the Supremes’), even when the client seems to know what they want to do. The idea is that the client can’t know what to do until the lawyer does the lawyering stuff. In particular, there is an informative excerpt from Justice Sotomayor’s concurrence:

Regardless of whether a defendant asserts her innocence (or admits her guilt), her counsel must "make an independent examination of the facts, circumstances, pleadings and laws involved and then . . . offer his informed opinion as to what plea should be entered." Von Moltke v. Gillies, 332 U. S. 708, 721 (1948) (plurality opinion). A defendant possesses "`the ultimate authority'" to determine her plea.Florida v. Nixon, 543 U. S. 175, 187 (2004). But a lawyer must abide by his client's decision in this respect only after having provided the client with competent and fully informed advice, including an analysis of the risks that the client would face in proceeding to trial. Given our recognition that "a defendant's proclamation of innocence does not relieve counsel of his normal responsibilities," ante, at 8, our further observation that such a proclamation "may affect the advice counsel gives," ibid., states only the obvious: that a lawyer's advice will always reflect the objectives of the representation, as determined by the adequately informed client.

This excerpt reinforces the idea that there is no such thing as a two-hour case. In fact, I am skeptical that there are any felonies that require less than two days (the current ABA guidelines if the lawyers works 300 days per year) to be handled the way those of us with means would pay for.

There will be time when systemic dysfunction might drive a client to forgo effective advocacy. For example, when the prosecutor gives a plea that will be withdrawn if the client doesn’t accept it at the first appearance hearing, and the plea is the only way for the client to get released. When this happens, good lawyers may assist clients to make decisions that deprive them of the services to which they are entitled. But the lawyer must continue to remind the system that this is not okay; to continue to be a voice that urges the system to live up to the promise of Gideon.