I would seriously consider providing ineffective assistance. A lawyer might well be ethically obligated to do so and a lawyer who didn’t might well be committing malpractice.

So … a lawyer who provides ineffective assistance is in fact providing effective assistance, so an ineffective assistance claim must fail, so there are no possible ineffective defenses? Or the converse, all effective defenses are ineffective, so the set of all effective defenses is the null set?

Singularities apparently exist in legal ethics as well as physics.

Isn’t an attorney obligated to pursue every available legal strategy that would benefit the client?

No.

And since your premise is wrong, your conclusions are wrong.

Can anyone seriously suggest that in this case, a different legal strategy would have even approached this good an outcome for the client? Can there be any serious dispute that this was the most effective assistance possible?

When the only winning move is not to play, if there is a duty to win that means there is a duty not to play. A strange game indeed.

Ineffective assistance, skillfully and zealously implemented, affords the client years of additional life, sometimes decades, and may be the only strategy able to do so. A defense attorney should ideally strive for the sweet spot of marginally ineffective assistance — assistance which is ultimately held to be ineffective, but is not immediately obviously so, and is found to be so only after years of argument and delay.

Isn’t an attorney obligated to pursue every available legal strategy that would benefit the client? Ineffective assistance provides the client with a basis for throwing out a trial and starting over after years of delaying appeals. This may well be the best possible strategy one can pursue.

There is always the possibility that the state’s evidence may deteriorate after years of delay. Or the death penalty may go out of fashion. Or the client may die a natural death. Or the client may simply get extra years of life that wouldn’t otherwise be available. Ineffective assistance offers the client a realistic chance when effective assistance may offer no realistic chance. Failing to pursue it may be failing to pursue the client’s interest and best legal option. It may be a violation of the ethical duty not to let the client down.

Thanks. That’s about as fair an answer as I could ask for. FWIW, I don’t think the cops should be perjuring themselves under any circumstances either, but the analogy seemed apt, considering what the lawyer in the OP probably did – that is, subvert the system which worked as it was supposed to, by gaming the rules and causing a remand or maybe even a new trial.

Consider, as an obvious example, the defendant on the stand being cross-examined. The Prosecutor asks a question that the defense attorney has a meritorious objection to, but (due to insufficient preparation) he thinks the answer will likely help his client rather than hurt him. The client answers, and the cat is out of the bag. Next trial, the Prosecutor will know just what to ask, who to interview, what questions to ask them, and the outcome will be much worse.

I don’t know the specifics of this case, but it’s possible the attorney knew that pretending to represent his client would create this kind of risk.

So rather than doing something about the judge disallowing time for the defense to prepare, the appeals court censured the attorney for not pretending to properly represent his client?

Not every denial of a motion for continuance means a defense attorney can’t properly represent his client. Judges have discretion to deny motions for a reason. Do you know if this was the first setting or the twentieth, if the attorney said he needed more time to prepare or he needed the day off to go watch Wrestlemania, or if the attorney wanted time to investigate a legitimate defense or to investigate a potential alien abduction? Perhaps the court actually had that information and didn’t believe that the continuance was warranted. There’s also the fact that the denial of a continuance can be raised on appeal without deliberately tanking the trial first, so the attorney’s actions were wholly unnecessary even if the judge should have granted the continuance.

There’s a Texas case, Cannon v. State, where the defense attorney refused to do anything in the case after the judge denied a motion for continuance. It was reversed for ineffective assistance, and the Court of Criminal Appeals even referred the attorney to the disciplinary board in the opinion. (252 S.W.3d 342, for the curious.) Not only was there never any (public, at least) action taken by the disciplinary board, the attorney actually bragged in the Texas Lawyer magazine how he would voluntarily be thrown under the bus if that’s what it would take to help his client. And this wasn’t even a death penalty case — it was a misdemeanor DWI!

So rather than doing something about the judge disallowing time for the defense to prepare, the appeals court censured the attorney for not pretending to properly represent his client?

Just wondering if this reliance on personal morality works both ways, or only one?

Every moral system I know of works only one way. If you believe something is moral, then you necessarily believe its opposite is not. Someone who opposes abortion on the basis of personal morality isn’t obligated to recognize that someone who has an abortion has engaged in “moral” behavior. Similarly, someone who opposes the death penalty isn’t obligated to think that death penalty supporters are moral.

That said, I’ll do my best to answer your questions:

Suppose a cop commits perjury to make a questionable — no, a clearly out of bounds — 4th A seizure admissible. The evidence really does go to the facts at issue, and it demonstrates the defendant’s guilt, but it was seized unlawfully — whether good faith or not. Now the cop lies and testifies in a way to get the evidence in front of a jury. Do you see any moral basis for the cop’s actions, who rationalizes that he is just giving the jury all the facts?

No, I don’t see any such basis. First, you didn’t specify if I’m to assume the defendant is actually guilty. In the absence of that assumption, then the cop’s behavior is unjustifiable on any theory of morality. If, in fact, the defendant is not guilty, then the cop committed perjury with the intent that someone be sentenced to death. Pretty hard to justify that.

Second, if I do assume the defendant is actually guilty, that still doesn’t justify the cop’s behavior. S/he has moral obligations (a) to society to abide by the rules we set for determining guilt or innocence, because those apply equally to the guilty and the innocent; and (b) to not commit perjury.

Is there any equivalency to the lawyer who deliberately creates a record of IAC for the appellate courts in order to thwart the verdict of a legal and lawful jury?

No, because the lawyer in such a case is not committing perjury and is not violating the constitutional rights of anyone (at least not anyone who will complain about it).

Do the ethics of the legal profession allow the attorney to do the above, that is, deliberately create a record of IAC so that an otherwise lawful jury verdict will be invalidated through no fault of government or judge?

I don’t think they do, though it’s not altogether clear. In CA, for example, Rule 3-110 of the Code of Professional Responsibility provides that “A member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence.”

I don’t know how this Rule gets interpreted in cases of IAC, but as a practical matter it’s generally hard to prove someone “intentionally” failed to do something.

Do the ethics of the legal profession allow the individual lawyer to substitute his/her own personal moral beliefs for existing law and statute, such as doing such a thing because of an opposition to capital punishment?

This is a little too abstract to answer as it stands. Certainly they can’t advise the violation of a law (Rule 3-210) or suppress evidence (Rule 5-220). In trial,

“a member:

(A) Shall employ, for the purpose of maintaining the causes confided to the member such means only as are consistent with truth;

(B) Shall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law;

(C) Shall not intentionally misquote to a tribunal the language of a book, statute, or decision;

(D) Shall not, knowing its invalidity, cite as authority a decision that has been overruled or a statute that has been repealed or declared unconstitutional; and

(E) Shall not assert personal knowledge of the facts at issue, except when testifying as a witness.”

would an attorney be likewise moral if he/she believed his/her client to be beyond salvation and a menace, and deliberately tanked the defense, allowing a conviction without a total effort?

No, and for the same reason as the cop above: that’s not the attorney’s call to make, and it violates the rights of even defendants who actually are guilty.

Having said all this, I want to repeat what I said above. I’m not justifying the conduct in the cited case. I’m just pointing out that the incentives create an environment in which this conduct is a natural outcome. If people want to change that outcome, they need to change the environment.

IMO a finding of IAC should result in an automatic disciplinary referral to the state’s attorney disciplinary authorities, as well as disqualification from further capital case, with the disqualification being automatic and permanent, subject only to its automatic vacation if the IAC finding is overturned.

A wilful “tanking” of the case could also be punished as contempt under most, if not all, states’ current laws and federal law – and payment of court expenditures incurred due to contempt can be an element of contempt punishment.

Nick

A couple of questions, really, I’m curious: Presupposing a capital case in all…Suppose a cop commits perjury to make a questionable – no, a clearly out of bounds – 4th A seizure admissible. The evidence really does go to the facts at issue, and it demonstrates the defendant’s guilt, but it was seized unlawfully – whether good faith or not. Now the cop lies and testifies in a way to get the evidence in front of a jury. Do you see any moral basis for the cop’s actions, who rationalizes that he is just giving the jury all the facts? Is there any equivalency to the lawyer who deliberately creates a record of IAC for the appellate courts in order to thwart the verdict of a legal and lawful jury?

Do the ethics of the legal profession allow the attorney to do the above, that is, deliberately create a record of IAC so that an otherwise lawful jury verdict will be invalidated through no fault of government or judge? Do the ethics of the legal profession allow the individual lawyer to substitute his/her own personal moral beliefs for existing law and statute, such as doing such a thing because of an opposition to capital punishment? If so, would an attorney be likewise moral if he/she believed his/her client to be beyond salvation and a menace, and deliberately tanked the defense, allowing a conviction without a total effort?

Just wondering if this reliance on personal morality works both ways, or only one?

This has led me to wonder whether legal representation that is constitutionally deficient should presumptively constitute legal malpractice.

Hmmm. I have some due process and practical concerns. In a habeas petition or direct appeal, the ineffective counsel is not a party to the suit and has no opportunity or the same incentive to defend himself. The state has a different interest and arguably less at stake. Prosecutors are supposed to pursue fairness, and have no duty to zealously defend the subject attorney or the conduct of the trial. More prosaically, it is not unknown for new trials after an ineffectiveness claim to result in a worse sentence. In any event, the worst thing to happen to the state is another shot to convict. It is not being accused of misconduct.

I realize we are talking about a presumption, rather than collateral estoppel, so at the least it is rebuttable, as, I think, due process would require. In that case, there is nothing to stop the attorney from claiming that it was the prosecutors who were incompetent or ineffective in defending against the ineffectiveness claim. So this raises the possibility of prosecutors being deposed about their legal strategy and how hard they worked on their briefs, and whether they knew about certain citations.

Other practical issues involve the fact that there are 50 state jurisdictions, all of which would need to change the law. I suppose this “malpractice reform” could be made Federal law, but I am not sure I like the implications for Federalism on that one.

If I were to look for a remedy, I would look for it in contract. That is, while usually contract theories of malpractice are folded into tort and fiduciary theories, I think the poor performance here can be separated from garden variety malpractice. The damages are quite simple: the fee paid, either for the whole trial, or, as in this case, the sentencing. I recall some support for the notion that if you pay attorneys to do something, say– file an appeal, and they do not file it in time, they cannot defend on the basis that you would have lost on appeal in any event. They still owe the fees back. This approach is problematic for PD’s, not great for appointed attorneys (whose acceptance of the case may be mandatory and are paid by the government) and really only works for client-pay attorneys.

Currently there is no reason why an ineffectiveness of counsel finding should not result in a referral to the state disciplinary authority. Courts, and any member of the public, including the defendant and commenters here, can freely do so.

PatHMV: … How many innocent men are in jail because her clients weren’t able to find another lawyer so quickly to document that she overlooked something in her 10-minute interview?

At the time, shortly after Prop 215 passed, the law was in rapid flux. I just happened to be narrowly focused and read up on the latest rulings and many pending lower court cases on that law, and she wasn’t.

PatHMV: Perhaps a sanction, or at least the real possibility of being investigated, might give such an attorney the backbone to say in court “your honor, I have only been allowed 10 minutes with this defendant, and because of that it is not possible for me to competently represent him at this time.”

It’s not a matter of how much time a PD is “allowed” by police or courts, it’s a matter of caseload and budgets: how many hours and how many clients there are in a day, and how many bucks don’t exist in their investigator and paralegal budgets.

If one PD says that once, they might get a continuance, or permission to withdraw. If one PD says it more than once, they’re likely to be viewed as just a troublemaker, and their clients would be at risk. So they labor on, doing the best they can with what they’ve got.

This post was mentioned on Twitter by mgoose12: RT @thetrialwarrior: When Ineffective Assistance Becomes Malpractice (by Jonathan H. Adler, The Volokh Conspiracy) http://bit.ly/3Tdglr...

I’m not saying it’s an easy situation to be in, far from it. But participating in the system knowing that you can’t, in fact, adequately represent the defendant because of time or resource constraints makes you complicit in the subsequent bad outcomes. The lion’s share of the blame for such, of course, goes to those who refuse to allocate adequate resources, but the line attorney who pretends to be giving competent counsel is also culpable.

Perhaps a sanction, or at least the real possibility of being investigated, might give such an attorney the backbone to say in court “your honor, I have only been allowed 10 minutes with this defendant, and because of that it is not possible for me to competently represent him at this time.”

PatHMV: If a defense counsel’s mistakes erroneously lead to a defendant spending, say, 5 years in jail (before habeas frees him), don’t you think that the defense counsel should pay some consequence for that?

This is a considerably different scenario from the one I related, responding to your “mildly hyperbolic” suggestion for a rule. In this hypo I think that the nature, character and circumstances, of the counsel’s mistakes should have considerable bearing on what outcome would be just.

Others above have addressed disparagement of the overworked PD for immediately speaking truth for the benefit of justice, and I concur with them.

Anderson: All this is such a red herring.

In a civil case, the best interests of my client might be furthered by my advising him to destroy incriminating documents rather than produce them pursuant to a proper discovery request.

But there’s no question whether that’s “good lawyering.” It’s not.

A lawyer is an officer of the court and his *first* obligation is to the court.

Exactly.

This attorney should be disbarred*, that would at least stop others from following in his footsteps. There’s a vast difference between good lawyering and abusing the system. Criminal defendants (even those acting pro se) are expected to do whatever they can to avoid incarceration. Attorneys need to maintain some degree of integrity in the court.

*and I mean “disbarred” in the bar association context, you can’t practice for five years and have to take the bar and ethics exams again.

Declaring under oath that you screwed up is rather more than many people are typically willing to do.

CA has a code section (CCP 473) which allows the setting aside of a judgment due to “mistake, inadvertence, or excusable neglect” of counsel. It basically requires a declaration by the attorney that s/he messed up and why. There are lawyers who, despite the fact that it works to vacate a default judgment (say), won’t take one.

But if the caseload means that you cannot adequately represent your clients, you’ve got some obligation to do something about that, not just continue to inadequately represent your clients and then help spring them based in part on your inadequacy.

What could the PD do? She’s just another overworked, underpaid state employee. She has no control over her workload but to do the best she can under the circumstances.

Declaring under oath that you screwed up is rather more than many people are typically willing to do.

This has led me to wonder whether legal representation that is constitutionally deficient should presumptively constitute legal malpractice.

I don’t understand how it could. What are the damages?

I sympathize with the overworked PDs. But if the caseload means that you cannot adequately represent your clients, you’ve got some obligation to do something about that, not just continue to inadequately represent your clients and then help spring them based in part on your inadequacy.

And of course I was being mildly hyperbolic with the “no further investigation, no nothing” part. My main point was simply that it’s far too easy to decide that counsel was “ineffective” in the abstract. I think there should be some consequences on somebody, or at least an automatic investigation, if some defense lawyer has done such crappy lawyering as to not make it over the very low bar of “constitutionally effective” assistance of counsel. If a defense counsel’s mistakes erroneously lead to a defendant spending, say, 5 years in jail (before habeas frees him), don’t you think that the defense counsel should pay some consequence for that?

Regarding this earlier comment:

Steve: It seems to be black-letter law in most places that you need to successfully get your conviction overturned before you can sue your defense lawyer for malpractice.

I think Steve’s right, and a specific example of such a holding is Peeler v. Hughes & Luce, 909 S.W.2d 494 (Tex. 1995), which also quotes and discusses other states’ positions on this same subject.

Strickland v. Washington supposedly doesn’t convert tactical judgments that are merely mistaken in hindsight — like David Washington’s original trial counsel’s decision to throw Washington on the mercy of the sentencing trial judge after only a very abbreviated evidentiary case to show his non-violent and law-abiding past — into ineffective assistance. Thus, if the state obtained a fact finding that, for example, a defense counsel’s failure to investigate or present evidence was due to a tactical choice (specifically, to lay a foundation for a further ineffective assistance claim), courts would be fully authorized to “honor” that choice and find that it was indeed effective assistance, while then immediately thereafter rejecting the hoped-for outcome from that tactical choice.

Presumably most such fact-findings would be based on inference rather than a boastful admission by misbehaving defense counsel; but there may indeed be times when there’s so much circumstantial evidence as to make such an inference very compelling indeed.

PatHMV: I say the courts should enact an automatic $10,000 fine on any lawyer whose client’s conviction or sentencing is overturned on the basis of ineffective assistance of counsel. No further investigation, no nothing. If your advocacy was SO bad that it was constitutionally “ineffective” (being constitutionally effective is not a really high hurdle to cross), then that should, in and of itself, justify sanctions.

Terrible idea I think.

A personal anecdote is all I’ve got to illustrate the point, but it is clear at least.

Back in the 1990s a recently convicted defendant called me for possible representation. In another county he had been charged with, and pled guilty at his PD’s suggestion, to possession of politically incorrect vegetable matter. He was broke, and looking at jailtime at sentencing. Based on what he told me, his PD had apparently overlooked a very viable defense.

I contacted the PD. She agreed she had missed the defense. She was eyebrow deep in caseload at the time, and had no more than 10 minutes to interview the guy. She immediately said she’d swear an affidavit that she had rendered IAC. She did, and got his plea vacated.

Prosecutor, upon seeing the defense the PD noted in the affidavit, declined to prosecute further.

Defendant should never have been charged in the first place.

My hat is off to that PD. She entirely nobly fell on her own sword to bring about a just result. An “automatic $10,000 fine” with “no further investigation, no nothing” in such a situation would result in even more widespread injustice to factually innocent victims of odious laws, and turn courts into worse railroads for the poor than they already are.

Fining the appointed capital litigation attorneys just returns the money the state paid. Sure, the lawyer loses time and effort – but isn’t out his own pocket.

Firing public defenders for ineffective assistance? Ya, good luck with that.

I think to avoid the whole issue and keep the system functioning would take something drastic. Take away the incentive to tank the sentencing phase in death cases by abolishing the death penalty and making it mandatory life w/out parole for capital level crimes. I know i know… not bloody likely. But it would solve the problem addressed in this case. And likely save the criminal justice system a lot of time, effort & money in the long run. Just my .02 cents.

There’s a Texas case, Cannon v. State, where the defense attorney refused to do anything in the case after the judge denied a motion for continuance. It was reversed for ineffective assistance, and the Court of Criminal Appeals even referred the attorney to the disciplinary board in the opinion. (252 S.W.3d 342, for the curious.) Not only was there never any (public, at least) action taken by the disciplinary board, the attorney actually bragged in the Texas Lawyer magazine how he would voluntarily be thrown under the bus if that’s what it would take to help his client. And this wasn’t even a death penalty case — it was a misdemeanor DWI!

It happens. Those of us in regular criminal practice have all seen it, even if it (thankfully) isn’t S.O.P.

The ideal solution, with respect to capital cases, would be to stop pretending that humans are capable of devising or implementing a system that effects the death penalty in a reliably just manner.

AJK: So what if they’d helped break him out of custody and get him to Mexico? Would that be good lawyering too?

Ask Angela Davis. It is apparently not career-limiting, at least.

So, is drowning someone and saving someone from drowning morally analogous? After all, in each case you flip the “drowned or not drowned” outcome from what it would otherwise have been, right?

What if the attorney did exactly the same thing, but in a case where the penalty was a life sentence? I guess I don’t see a difference between capital and non capital trials. Our society has collectively agreed on certain penalties. An attorney may feel that some penalties are too severe, whether that’s the death penalty or mandatory 10 years for .01 grams of crack or being branded a sex offender for streaking with a pumpkin on your head, but isn’t her duty to make the best case for a light sentence within the rules (assuming there are any, which seems to be in dispute)?

Do you think there are any ethical limits to what a defense attorney can do to avoid his client being executed? If I see someone drowning, I can steal a boat to save them and plead necessity. Can an attorney do the same (for example, pay a witness in the penalty phase to falsely state that the defendant was molested as a child, or whatever) and justify it as necessary to avoid what the attorney feels is an overly severe sentence?

If so, how about to avoid some other draconian sentence, like life without parole for a minor third strike?

Pintler: For defense attorneys who think that sabotaging a trial is OK on an ends-justify-the-means basis, how do you feel about police officers who lie on the stand or in affidavits to convict someone they think is guilty? Isn’t that an analogous situation — breaking the rules because you don’t think the system will produce the outcome you want?

So, is drowning someone and saving someone from drowning morally analogous? After all, in each case you flip the “drowned or not drowned” outcome from what it would otherwise have been, right?

By the way, there’s a huge problem with the “IEC claim means malpractice” argument. The client will certainly not help defend the attorney’s conduct in an IEC case. But he may help defend the attorney’s conduct, and such defenses may exist (though cannot be used against the defendant due to privilege), if the attorney is charged with malpractice.