09 May 2005

Final Exam to Represent Indigent Clients

Okay, a couple years ago, rather than increase funding for court appointed attorneys the Virginia General Assembly set up the Virginia Indigent Defense Commission. Statutes were also put into place requiring lawyers who want to be put on "the list" to practice misdemeanor indigent defense to attend a CLE approved by the Commission before they are put on the list. In order to be put on the felony list an attorney must go to the CLE and be co-counsel on 4 felony cases from beginning to end. Additionally, we all have to go to a certain number of approved CLE's (6 hours biennially for criminal and an additional 4 for juvenile indigent). Here's the statute.

I wonder what effect this will have on the practice of criminal law. Those of us who have been practicing for a while are going to be grandfathered in but I suspect that this is going to be a significant entry barrier. Those requirements aren't going to be too hard for lawyers starting out in a PD's office but most of Virginia doesn't have PD offices. A lot of young lawyers come to court the first time when they have just joined a firm or opened their own office. They are looking around for some way to start money flowing in the door and the court appointed list is a starting point; a number of these attorneys become skilled and choose to continue to do criminal defense. If they have to wait 4-5 months for the next CLE they won't start doing criminal law. Even worse, in some counties there isn't enough going on in court to make it worth getting appointed only for misdemeanors and a young solo practitioner (the third lawyer in a three lawyer county) is never going to get felony cases. He'll never start to practice or he'll walk away in favor of real estate law.

To recap: Having not increased the funding for indigent defense in order to draw and keep qualified individuals, Virginia is putting entry barriers in front of the least lucrative legal practice.

I understand the argument that we need to do something to guarantee the quality of representation for indigents. Previously we had trusted the judges to assign cases to appropriate attorneys. I don't remember anyone handing me a violent felony my first day in the courthouse; I was getting A&B's, driving suspended, and (on a big day) a grand larceny. From the beginning I've watched judges assign indigent cases. Our judges clearly have a group of attorneys to whom they give misdemeanors and minor felonies, a group to whom they give mid-level felonies, and a group to whom they give major felonies. I like to think I'm in the second group but I'll probably have to be around for a few more years before I'm considered solid enough for the third. In fact, I'm not sure that our judges don't try to classify us into a certain type of criminal law. Over the last couple years I have tended to get more serious felony battery charges (malicious wounding, aggravated malicious wounding and the like) than I've seen other court appointed lawyers receive. Other lawyers seem to get more mentally troubled patients than I do and more sex crimes. However, this may just be normal statistical variances; I don't know that the judges all get together and start comparing notes as to what lawyers they are going to assign to what cases.

I suspect that in a lot of jurisdictions lip-service will be paid to this list but the reality will continue as it is. I've read through the statutes and don't see anything which requires a judge to follow the list. A judge in a county with 3 attorneys who will agree to practice indigent defense isn't going to have a whole lot of use for the list if those 3 lawyers aren't on it.

Not that that is my situation. I work in jurisdictions where there are clearly enough attorneys that the judges will probably follow the list. It might get interesting a couple years down the line - when fewer new attorneys are even trying to practice indigent defense because they haven't taken the proper courses or stood as co counsel - but for the moment the list will be full of local attorneys.

So I have the application sitting in front of me. It was mailed to me and a clerk at one of the courts also made sure I had a copy. Not counting the cover sheet and a map of Virginia's jurisdictions, the application is 5 pages long and confusing (lawyers cannot write non-confusing documents). It asks for names and numbers of judges they can contact about me. And it asks two questions straight from one of my 3L final exams:
17.HYPOTHETICAL: Your client fails to appear for a court hearing that you had discussed with him the previous day. During that meeting your client mentioned to you that he was concerned about the possibility of incarceration following today's hearing and was thinking of not appearing. You have not heard from him today. When the case is called the judge turns to you and asks: "Counsel, why isn't your client here?"

What is your reply? Justify your reply based on your understanding of a criminal defense attorney's duties toward the client, the court, and opposing counsel, as well as any interest you may have in preserving your reputation for integrity before the court.


Your client is thirteen years old. She is awaiting a disposition hearing following adjudication for distribution of cocaine. You know based on your investigation and interviews with your client that her mother is a drug addict and her father is incarcerated for a drug-related felony. She has told you that she has used cocaine a number of times, but believes that she does not have "a problem." You believe that she has a serious drug addiction and that without help she will no doubt recidivate, or worse, wind up dead. You talk to the Court Services Unit worker who has not uncovered your client's family history and thinks that because it is a first offense, probation and return home is likely. You know of an excellent residential drug treatment center for teens and through some informal inquiries you learn that it is likely that the treatment center would accept your client.

You discuss the option with your client and she tells you that she only wants to go home and that she wants you to argue for that disposition. If you argue to the judge for your client to go home on probation, and there is no opposition from the CSU worker, there is a good chance that the judge will do it. After considering all of the facts, you believe that the best interests of your thirteen year old client would be served by her going to the residential treatment program. Do you reveal any of your client's family background to the CSU worker? What do you argue to the court? Justify your reply based on your understanding of a juvenile defense attorney's duties toward the client, the court, and opposing counsel, and the CSU worker, as well as any interest you may have in preserving your reputation for integrity before the court.
I can't believe I'm going to have to answer questions like this again. I took ethics in law school. I actually took the Ethics of Criminal Law at W&L:
Ethical Problems in the Practice of Criminal Law Seminar. A criminal law problem-based examination of the formal and informal system by which the conduct of attorneys is regulated, including codes of professional responsibility, the role of the federal constitution, and personal standards and values. Includes ethical choices exercised by prosecutors and defense counsel in areas of client relations, exchange of information, pretrial litigation, discretionary decision making; particular emphasis on assessing the duty to provide zealous advocacy and avoid conflicts of interest. Two hours.
I already took the final exam; it was my understanding that all that was behind me. And now I've got years of real world experience which can only screw up the answer which you're supposed to give to questions like that. Not that the answer is too hard - you just turn to your friendly local prosecutor, explain the situation, and ask her for advice. Right?

Well, okay, maybe that's not the answer I'll give the Commission. I gotta admit it's tempting though since I wonder how many of the thousands which come in over the next week or so will actually be read. I suspect I may have guaranteed that mine will be. :-)


Anonymous said...

Hey, if it's good enough for judicial nominees before the Senate it should be good enough for you...answer "I can't answer a hypothetical question" or "I don't want to prejudice myself in a future case by answering that question"

Somehow I don't think the board will find that quite as amusing as I do.

Ken Lammers said...


I think you are dead on. Usually by the time the case is called I have checked my messages and tried to call Client.

I just don't know why he's not there. For all I know he's on the side of the road (in his dead car) waiting for a tow truck or in jail for a DUI. The hypothesis didn't say he told me he wasn't coming to court. It just said he told me he was thinking about it. This client conversation happens every so often and then I explain the fact that in Virginia not coming to court is a crime (Failure to Appear), that it is extremely easy to prove (court's record indicate client's absence), and that the only defense is having been in jail or in the hospital, near death (and, no, the pink sheet from going to the emergncy room for a headache ain't gonna cut it). Most of the time the client comes to court. I cannot assume the ones who don't are missing court deliberately.

Ken Lammers said...

I'm the client's advocate, not her Guardian ad Litem. My job is to represent her position not substitute my own judgement (unless I think she is not competent - at which time my only option is to ask for a competency eval, not substitute my judgement).

She's under 14 which means that she's not presumed competent but nothing in the problem indicates that I have come to the conclusion she's not.

I attempt to get her her desired conclusion.