Raising the bar for retained counsel in federal criminal cases

Two things came together recently to prompt me to think about the practice of federal criminal defense by retained lawyers.

First, our Federal Public Defender hired Jessica to become an AFPD. Jessica initially practiced as a criminal defense lawyer in Western Nebraska for several years. After that, she spent two years as a “fellowship attorney” with FPD where she learned the ropes of federal criminal defense from some of the best in the business. Following the fellowship, she resumed her private criminal defense practice in Lincoln where she established a reputation as a savvy and zealous practitioner.  When a spot opened up with the FPD, she applied and was appointed.

Second, as I contemplated my recent surgery, I was comforted by the fact that my surgeon was extremely experienced. Indeed, it was not until he was 37 years old that he completed his arduous fellowship training that in turn allowed him to call himself a thoracic surgeon.

Not for the first time, I wondered why it was then that any kid out of law school or any office-practice lawyer could wander into my courtroom and take a federal felony case to trial or plea as counsel for the defendant if he or she was retained to do so by the defendant. Not to put too fine a point on it, that’s crazy. Nevertheless, virtually every day we stand by and watch inexperienced lawyers muddle about representing people charged with federal felonies merely because they passed the Nebraska Bar exam and someone was dumb enough to hire them.

I propose that no lawyer be permitted to practice federal criminal defense law until he or she has been certified as sufficiently experienced to do so.  We have the authority to require compliance with such a rule. See, e.g., Brown v. McGarr, 774 F.2d 777 (7th Cir. 1985) (upholding local rule requiring that a lawyer admitted to practice generally in the federal district court must also belong to the local federal “trial bar” before being allowed to appear alone either on behalf of a defendant in a criminal proceeding or during testimonial proceedings in a civil case); ND.Ill.LR83.11. Trial Bar

And I particularly mean that such a prohibition should be applied aggressively to retained counsel. For our federal public defenders, and our Criminal Justice Act panel lawyers, we already have mechanisms in place to assure basic competency. For example, in Nebraska, one cannot become a member of the Criminal Justice Act Panel without approval of the CJA Panel Selection Committee consisting of judges, the FPD and the CJA panel representative. A similar screening process should be applied to retained criminal defense lawyers.

What do you think?

RGK

 

 

 

 

16 responses

  1. At the risk of sounding anti-competitive, hear, hear! I spent five years as an AFPD under the direct supervision of an attorney with more than 20 years of experience. Although my cases were my own, I was always aware when I was entering uncharted territory and had my supervisor (and the other experienced AFPDs in our office) as a sounding board and practical resource. I sat second chair in two federal trials (and numerous others in state court where I was a county PD before I was an AFPD) before handling my own cases at trial. Even then, I was not as experienced or savvy as I would want a lawyer defending me to be. And I see people regularly march into federal court on CJA contracts (even after vetting) who don’t know the Guidelines from a Reader’s Digest. Now, as I am in private practice and competing for the extremely limited number of clients who can afford to pay for representation in federal court, it galls me when inexperienced folks get hired on these cases and then call me for advice umpteen times over the course of a case. I don’t know how to draft a will–that’s why I don’t take people’s money to do that. Why shouldn’t the same (or higher) standard apply in criminal defense?

    My only quibble with your suggestion is that it ought not be limited to practice before the federal bench. I do not believe it is appropriate for inexperienced lawyers to handle either side of litigation that can result in the temporary or permanent deprivation of liberty of another person–the bulk of that sort of litigation happens every day across this country in state courts. Inexperienced defenders, coupled with inexperienced prosecutors, have played a critical role in the growth of our criminal industrial complex.*

    Finally, another reservation with regard to your idea: In our district we have as much trouble with old folks remaining on the CJA panel as with young ones. Some of the old guard are among the finest advocates any litigant could hope for. But others are dinosaurs of an era when zealous advocacy amounted to little more than, “Well, judge, if you could give him a sentence at the bottom of the guidelines, I’d be mighty grateful.” We need a mechanism to toss these folks. Many of our federal judges have said as much to me privately, but precious few of them seem willing to hurt the feelings of their old friends. Pity.

    *I believe this strongly but won’t monopolize your page with a dissertation as to why.

  2. Judge Kopf,

    Perhaps this post was made in jest to foster discussion or parody the system. I can’t tell. So I’ll respond as though it’s serious.

    First, with all due respect, lawyers (and judges) are not surgeons. Surgeons train for decades because biological systems–many of which we still do not understand–are inherently far more complex than even the most byzantine legal systems that lawyers can think up. Surgical errors also tend to be of the irreversible nature, whereas an error in a legal proceeding can typically be fixed with the stroke of a pen (though some judges are reluctant to admit ever having made a mistake, it’s still not the same).

    Second, sure, it’s always comforting to know that you are relying on a professional with extensive training, but your proposal flies in the face of basic economics. There are already not enough competent lawyers of any kind, because A) the training that they go through (e.g. law school) is a complete joke; B) the profession self-selects for candidates who, on average, have no interest in the law but would really like to earn a nice and increasingly-imaginary annual bonus three years out; C) no one in charge will admit that hourly billing does not work so the industry is collapsing. By restricting criminal defense based on yet another arbitrary training threshold, the supply of competent lawyers would be further constricted, demand would presumably stay roughly the same, and the result would be an increase in prices. Public defenders are already jammed because lawyers charge supracompetitive prices that would be illegal in practically any other market. So your proposal would ultimately result in even fewer cases where there would be competent representation, contrary to your goal.

    If you really want there to be more competent lawyers, the best thing you could do at this point would be to do away with law school entirely as a prerequisite. Then the insane debt burden on those actually interested in the law would be removed, and you could still require passage of the Bar, or preferably a less archaic test that actually measures some kind of legal competence and ethical center. Not everyone would be a great or honest lawyer, but then again, that’s clearly where we’re at already.

    Alternatively, judges could help simplify the maze of vague, overly burdensome and self-contradictory rules that are the Federal Rules of Civil and Criminal Procedure, Civil and Criminal Local Rules, standing orders, etc. Judges demand compliance, and yet in a recent federal case I was involved in pro se, the Court made more routine errors than any party, with the U.S. Attorney in D.C. and the ABA’s expensive counsel not far behind. The system is designed to confuse people and cost them money. As much as I dislike lawyers overall, it’s hardly fair to blame the new ones, when the ones sitting on committees now very much like the mess they’ve made.

    Aaron

  3. Judge, I am probably very unqualified to state what I think, but I will anyway. An attorney (fairly new at the time) from Council Bluffs took a federal case as a retained attorney for someone he went to school with. At sentencing, the defendant was expecting about a 15 year sentence. He left court that day with a 510 month sentence due to 924(c) stacking. What a bad day for the defendant. I think at the very least an experienced attorney would have set a clearer expectation. And a lesson for defendants nationwide, always use an attorney who has a lot of experience in federal criminal cases. This attorney currently is very successful & knowledgable in the federal system, from what I understand. 10 years later. I feel bad for those who were “practiced” on.

  4. Judge: Any suggestion that retained counsel can be screened by courts after the lawyer has been admitted to practice interfers with the client’s right to choose counsel. In my district, the court requires taking a series of classes before a lawyer can be admitted to practice. The Supreme Court has time of licensure requirements to be admitted to its bar.
    What you are basically saying is that you and your colleagues on the bench are admitting incompetents to practice. The only reason one must be admitted to a federal court is to litigate. You don’t need a federal license to do wills or negotiate contracts. Just to litigate.
    And, yes, I see incompetent federal (and state) practicioners every day at the courthouse. Typically, federal courts get better lawyers than state courts. But there still are idiots in both courts. And, yes, CJA lawyers tend to be better than most state court appointed lawyers in my jurisdiction.
    We could go to the old (and being abandoned) British system of solicitors and barristers. That would keep the transactional lawyer away from juries. That would ensure that trial lawyers had a minimal amount of competence for trial lawyers. We could even have some form of QC for top trial lawyers.
    But, the bottom line is that you and your colleagues are admitting lawyers to practice before your courts and you are saying a good number are incompetent.
    That’s nuts.

  5. I agree that there needs to be some mechanism by which attorneys who undertake representation of any legal matter in federal court are deemed qualified to handle the matter in question. I also think being admitted to practice law is insufficient as a measure. That is true in Federal criminal cases and in Federal civil cases because the law has become increasingly complicated and the rules for handling even the simplest of matters so obtuse that a lawyer can’t show up any longer and just try a case or have a motion heard. It can’t be appropriate for individual Judges in particular criminal cases to deselect counsel based on their own subjective standard, however.

    No offense to the court, but one of the problems that exists is that we have no qualifications for what it takes to be a US District Court Judge, except that the Judge must know the right political people to be appointed. The Appellate Court has similar shortcomings. Once appointed, the Judge is supposed to be an expert in everything coming before them. To hide the simple fact they often don’t have the required subject matter knowledge, there has been a move toward rules designed to give the Judge protection against their own lack of knowledge by requiring all sorts of notice steps, including being very specific in filings, submitting briefs with motions, giving notice of witnesses and exhibits ahead of time, and so forth–all upon threat that the motion or matter will be somehow waived by not doing so. The interesting side effect to this micromanagement of everyday lawyering and casework undertaken in an effort to avoid judicial embarrassment is that lawyers can be accused of being incompetent for not clearing all the hurdles. Then, the lawyer gets labeled as unprepared or not competent to handle the matter.

    So, while the blogger is worried about the competency of counsel; the blogger should know that many lawyers are frequently concerned about the mindset/skillset of the Judge before whom they appear. I would hate to have some Federal Judge who thinks they know better about something than the defense lawyer be solely authorized to deselect a defense attorney who has been hired by a client with means to do so. The Sixth Amendment would certainly restrict such a thing; so any standards should be applicable in criminal matters on a standardized basis.

  6. I have a concern that there may be a tendency for retained counsel to encourage the defendants to go to trial or – at the least – fail to explain the stark differences in sentencing between taking an early plea and going to trial. I fully recognize that defendants have the right to go to trial. However, the defendant may not be well-served if the result is a very long sentence.

    It seems that in high-profile cases, the retained counsel may give the impression that they are fighting tooth and nail by going to trial. Then, when the defendant gets an extraordinarily long sentence, counsel may just throw up their hands and blame the system. It is highly preferable to make a reasoned decision about whether to take the plea while understanding the risks of going to trial. Finally, and unfortunately, there may be private attorneys who are eager or willing to go to trial because the attorney then can charge much higher fees (for high-profile and hopefully well-financed defendants) and can also get publicity from television shots of the attorney walking into and out of court. Even if the attorney loses the case, the publicity may give the appearance that the attorney is a “high-powered” attorney. Otherwise, why would the high-profile defendant have hired that attorney?

  7. I would fall back on a different medical principle: first do no harm. Incompetence has many fathers, including inexperience, but also including senescence, personal demons, and other sources. This proposal would create an unreliable proxy for competence, namely the quality of the applicant at the time of application. Further, this proposal just pushes the incompetent attorneys to other areas of the law. Do criminal defendants, in any sense, “deserve” better representation than helpless minors in the midst of a proceeding protecting them from abusive families. Finally, how is competence defined? It seems like a “know it when you see it” test rather than something that is reducible to objective an standard. An undefinable test threatens to just create paper-pushing rather than something whose contribution to the quality of practice outweighs the administrative costs associated with it. Do any practitioners from N.D. Ill truly believe that the quality of advocacy in that district has been improved in any meaningful sense by the trial bar certification? Finally, as with another commentator, I would be very reluctant to place this power in the hands of judges. We need judges to “call balls and strikes”, as the Chief put it during his confirmation hearing, not pick the teams.

  8. Great idea; particularly with liberty at risk. Should not be limited to just federal court.

    When I got my first job, my bosses put me on the local appointment list. I then ran dozens of criminal cases by myself my first year of practicing law. Totally unqualified. And that’s in state court.

    Also during my first year, I got sent to Lincoln alone for my first jury trial with the advice that you win the case in jury selection. When I asked how you pick a jury, I was told I was a “fucking idiot.” While that may be true, it didn’t make picking a jury any easier.

    Federal court would be an even bigger nightmare. I learned a shit load though.

  9. You may be interested to know that the military already requires this. Under Articles 27 b and 42 a of the Uniform Code of Military Justice, the defense counsel must be qualified and certified as competent by the Judge Advocate General. Additionally the trial counsel (or prosecutor) must be qualified and certified in order to try a general court martial by themselves. Just how rigorous the Judge Advocate General has been has changed over the years. So take that with a grain of salt. the one exception I would say, are the defense counsel. In my experience with the Air Force, they are without fail the most experienced litigators still on their first tour.

  10. Pingback: The Bar For The Bar Is The Bar | Simple Justice

  11. In medicine, they still have what is a de facto apprenticeship system (residency followed by a fellowship for most surgical fields). In law, we have moved away from an apprenticeship system (“reading the law” while clerking for experienced attorneys) to an academic system designed to teach the basic principles without giving much practical experience (unless the law student voluntarily participates in a clinical program and even then the practical experience is minimal).

    While there are many potential solutions — e.g. separating transactional attorneys (solicitors) from trial attorneys (barristers), requiring some form of apprenticeship (so many second chairs before can be lead attorney, experience as lead attorney on lesser felonies before handling homicides) — it is hard to see any that would get sufficient support from the bar — especially in rural areas where the numbers of attorneys are dwindling and it is difficult enough to fill the judicial and prosecutorial positions much less have an adequate number of attorneys to mentor new attorneys.

  12. I think the proposal sounds good, except for the part where you’ve omitted most of the key details on how you would expect a new lawyer to get the necessary experience. In the first anecdote you gave, Jessica apparently started her career in state-level criminal defense. Is there a specific reason you think it’s okay for new lawyers to make their inexperienced mistakes on state defendants, just not federal ones? Maybe federal defendants often have more at stake, but criminal convictions of any stripe are pretty harmful, and mistakes by one’s defense attorney aren’t costless in state court.

    Fellowships and apprenticeship-like training opportunities are worthwhile, but not every organization does a good job with training brand-new lawyers. What if the local FPD doesn’t have the money or resources to operate the kind of fellowship program that Jessica benefited from? Should completing such a program be determinative evidence of competence? If so, should we be concerned about creating additional gatekeepers for the profession? If it’s not enough just to graduate law school and pass a bar exam, what is enough, and what purpose do those other requirements serve?

    Every experienced practitioner (in law, medicine, or any other field) had to have started somewhere. While everyone wants an experienced lawyer, or surgeon, or auto mechanic to personally take care of them and their problem, your wonderful surgeon had to have had a “first” surgery on his own at some point. Personally, I think a young and inexperienced (but smart and willing to learn) lawyer would be preferable to an experienced but lazy and sloppy practitioner. I have no idea how you test for those qualities, though, or how to sort the good ones from the bad. I just worry about prioritizing experience as a virtue without laying out some kind of plan how to let people gain the experience you’re valuing.

  13. Peter,

    You get to the heart of the problem. Where do lawyers obtain the experience necessary to practice federal criminal defense?

    I don’t have answers to the good questions you raise. What I can deal with though is the present, and that is why I proposed raising the bar with the implicit hope that the federal judiciary and the bar will figure out creative ways to see to it that the experience you and I agree is necessary can be obtained.

    Thanks for writing. All the best.

    RGK

  14. I joined the Justice Department out of law school three years ago. There’s an incredibly steep learning curve when you’re starting as a trial lawyer – and I don’t think the learning ever really ends. I can see the benefit of your suggestion but have some concerns – not the least my job security!

    I think it would make most sense to place an experience requirement on felony criminal cases only. Civil cases are far less weighty, the complex ones generally have sophisticated clients, and there needs to be a place for attorneys to gain experience. I practice almost exclusively in bankruptcy law, which often has a number of (relatively) low stakes hearings that can help build courtroom skills, which I think has benefited me greatly in this early stage of my professional development.

    I also think that determining whether counsel is experienced enough can be tricky. To me the great challenge in practicing law isn’t the substantive issues – you can prepare for those ahead of time. The real challenge is making the hundreds of little judgment calls that in sum determine your reputation or your case: choosing to be courteous to opposing counsel when they are rude to you; giving forthright answers to a judge or a client; determining if a potential witnesses will be credible on the stand; picking the potential witnesses to depose; choosing which discovery tools will be effective; deciding which facts to emphasize in order to distill a year long discovery process into a focused, persuasive presentation; and it goes on and on. Making good decisions over and over, case after case, is hard. And I don’t know how you certify someone for this. I can’t think of a single time where I saw a lawyer truly hurt their client by not knowing the law – I’m sure it happens but not often. But I often see lawyers hurt their clients by not getting back to them or losing information they send, by not showing up at hearings, or by missing deadlines. Those are the things in our profession that most disappoint me.

  15. Bradley,

    I agree with almost all of your comment. My proposal is like swiss cheese–it has lots of holes in it. That said, we should try. For example, we don’t add lawyers to our CJA panels without vetting them first. That same process would be a good start for retained counsel. (We probably should be more aggressive about initial and ongoing screening of CJA panel lawyers too!)

    Thanks for your engagement, and welcome aboard. All the best.

    RGK

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