Houston Criminal Defense Lawyer Mark Bennett recently posted about a baby lawyer—less than 1 year practicing—who has taken a paying client’s death penalty case. In response, I think blogger Grits for Breakfast raises a fascinating and very accurate point: “Ironically, if the defendant were indigent, he’d be entitled to a better lawyer.”
This is true, Grits points out, because Texas rules governing appointment of counsel in capital cases require any court-appointed attorney taking a death penalty case to have significant experience. For the sake of precision, when I say “appointed” I mean that the defendant cannot afford to hire an attorney and so the court appoints one who is reimbursed by the government. The attorney might be a full-time public defender or a private lawyer who has agreed to do some court-appointed work.
In contrast to those who are appointed by the court, private attorneys don’t generally have to do anything beyond pass the bar in order to take whatever work they like. If a tax lawyer’s client wants to retain him to defend a criminal case, the tax lawyer is allowed to do that.
This is not a new problem. As the California Court of Appeal noted back in the 70s:
It is almost a truism that a criminal defendant would rather have the most inept private counsel than the most skilled and capable defender. Often the arraigning judge appoints the public defender only to watch in silent horror as the defendant’s family, having hocked the family jewels, hire a lawyer for him, sometimes a marginal misfit who is allowed to represent him only because of some ghastly mistake on the part of the Bar Examiners … .
People v. Huffman, 71 Cal. App. 3d 63, 72 n.2 (1977).
In reality, the problem here is one of backward-looking rules. A private counsel is not technically allowed to take a case he or she is not prepared to handle but the rules on this only punish after the fact rather than acting as a barrier to taking the case in the first place. I’m referring to the rules of professional conduct, which require the private attorney to “provide competent representation to a client.” In other words, having “the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” See ABA Model Rule of Professional Conduct 1.1. The thing is, you can be punished by having your law license suspended or by disbarment if you violate the rules but the rules are not a barrier to entry. You can still take a paying client’s case without proving that you have the competence required by Rule 1.1. It’s only if you mess up and are reported that the rule comes into play—after the damage is done.
Now let’s consider attorneys who want to be court appointed to represent defendants who cannot pay. As an example, in Massachusetts, the Committee for Public Counsel Services (CPCS) requires any attorney to go through their training and be licensed to take court appointed work. In fact, CPCS has different levels of certification; some attorneys are only certified to take lower-level, district court cases whereas some attorneys are certified to take murder cases. Unless you are properly certified, you cannot just walk in to court and take a poor person’s criminal case.
Many states do this to varying degrees, as does the federal system. Especially in jurisdictions where the death penalty exists, there are barriers to taking a court-appointed case from the outset. This seems wholly appropriate. We want to ensure a minimum standard of quality. It is not enough to have a backward-looking rule that punishes those who were not up to the challenge—we need rules that prevent harm from occurring in the first place. That is called consumer protection…and it’s supposed to be the whole point of law licensing.
As far as I know, states don’t place such barriers to entry on private counsel with paying clients. I get the general notion that a person should be free to pay whichever lawyer he wants because it is, after all, his money and his decision. Indeed, I’m generally skeptical of regulation and trying to play “parent” to consumers. However, I acknowledge that there are some fields where consumers are not in the best position to size up the quality of their choice. As one example, regulations on prescription drugs are useful to me because I don’t have the time or expertise to separate the wheat from the chaff. Or look at the medical profession: not all doctors are qualified to perform heart surgery and I am not the best person to evaluate that.
We in the legal profession should employ some sort of barrier to entry that assures private counsel are minimally competent in the field of representation. Anybody who has graduated law school and passed the bar exam knows that this is not enough to prepare you for actual practice. The bar exam didn’t test my ability to argue bail, do a jury trial, represent a client who is facing immigration consequences, use a motion to suppress as a discovery tool, negotiate with prosecutors, maintain good records, deal with family members that want me to disclose confidential information, the list goes on… These are skills I’ve learned through internships and job training. Nor do I have any doubt that I am woefully unprepared to develop an estate plan or advise someone on their liability under securities law. I could probably learn how to if I put my mind to it and was appropriately mentored…but the fact that I am a licensed attorney, by itself, does not make me qualified to do either.
The shame of a baby lawyer taking a capital case that he is not prepared for is merely a reflection on the larger problem that law licensing needs change. The very reason that we require people to pass the bar in order to practice is so that we can protect consumers. We’re not protecting them one bit, though. The bar exam does not test a person’s ability to competently practice in any particular area of law; it merely assess general knowledge across a wide variety of fields…and that’s not enough. State bar authorities should consider creating a system of specialty licensing. At a minimum, voluntary specialty licensing. This could help train new lawyers to actually practice in fields of interest and serve as a verification (a “seal of approval” if you will) that the particular lawyer is capable to do so. And indeed, a voluntary certification scheme might be enough to push consumers toward those attorneys who have taken the time to be so certified.
Or perhaps we should do as they do in England. There, barristers and solicitors must do pupilages and trainee stints with actual firms. These are basically lengthy apprenticeships that give the new lawyer on-the-job training on how to practice in a particular field or fields of law.
But we need to do something because the current system isn’t protecting consumers as intended. For God’s sake, a client just hired a brand new attorney to keep him from being executed. That shows a level of failure that goes beyond the client’s poor judgment.