Every so often, I read an article about a need for lawyers to do more pro bono (or reduced fee) work in order to meet the legal needs for low-income people. These articles are usually geared towards solos and small firms since we are the first people they turn to for help. While most lawyers are sympathetic to the plight of the poor, we have our own issues to deal with. For this reason, most lawyers oppose forced pro bono work. Today, I want to discuss a voter initiative that if passed would force potentially unqualified attorneys to represent clients in their greatest time of need and could end up being disastrous for both.
In California, an initiative on the November ballot known as Proposition 66 proposes to speed up capital punishment cases by restructuring how state habeas corpus cases are heard and by setting stricter time limits for submitting appeals once a criminal defendant has been sentenced to death. Currently, death row inmates typically wait at least 20 years before an execution date is even scheduled. Of the 750 inmates currently on death row, only 13 have been executed since the Golden State reinstated the death penalty in 1978.
While I won’t discuss how Prop 66 plans to speed up the appeals process nor put in my two cents on the capital punishment debate, I will discuss one section of Prop 66 that bothered me. It provides that all qualified appellate attorneys on the California Supreme Court’s appointment list must accept death penalty cases as a condition of remaining on the list.
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To be fair, Prop 66 states that these appointed attorneys will get paid equivalent to a state public defender with comparable experience. Nevertheless, this creates two problems.
The first is that it may result in death penalty cases being assigned to unqualified attorneys if the existing veteran death penalty defense attorneys are unable to take new cases. This can result in an increase of Sixth Amendment ineffective assistance of counsel claims, which may ironically add more time to the death penalty appeals process.
But the second problem is that an underpaid (or unpaid) attorney who takes a case by force is less likely to provide the diligence and zealous advocacy that his client deserves. This is very serious, since capital cases are time-consuming, cost a lot of money, and require meticulous review of the file and evidence in order to catch police and prosecutorial errors and misconduct. These cases also require a lot of passion and faith on the part of the attorney who will need to stand up to prosecutors and judges. And because the client’s life is on the line, the thought of losing can be emotionally draining.
As a tactical matter, some attorneys may deliberately screw up the appeal in order to allow the client to be eligible for an ineffective assistance of counsel claim (but not so bad as to trigger a disciplinary investigation from the state bar).
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At this point, the curmudgeons will stick their noses in and say, “Toughen up, buttercup.” They will remind us that lawyers are ethically bound to represent their clients to the best of their ability. Also, even in other professional contexts, we have to accept clients we don’t want. Associates have to work on assignments given to them by their boss, even if they don’t like it. Even solos and small firms have to take clients they don’t want in order to pay for overhead, food, shelter, and student loans.
Of course we have to take clients we don’t like. Just like we have to pay bills and do chores when we don’t want to. That’s part of life. And it’s also irrelevant.
What I have an issue with is laws that attempt to force people into doing something they don’t want to do by holding their professional licenses hostage. These people usually think that lawyers are rich and can afford to give back in order to address the access-to-justice problem. Most lawyers in private practice tend to not volunteer their time because they are spending it trying to generate business and get work done, and when they have free time, to eat and sleep. Most solo practitioners, while not impoverished, have to work full-time in order to keep their practice profitable.
We already have it bad enough. There is a massive lawyer oversupply in most parts of the country, and law schools are just now trying to correct this issue by reducing their class sizes. Technology is getting rid of the rote tasks that were done in the past by junior associates to gain firsthand experience.
And now a social-justice warrior wants to amend the death penalty appeals process through a voter initiative. A lead proponent of Prop 66, Kermit Alexander, was a former NFL player whose mother, sister, and two nephews were brutally murdered in Los Angeles in 1984 – victims of mistaken identity in a gang home invasion. While we all sympathize for Alexander’s loss and understand his desire to ensure that other families do not have to go through what he went through, speeding up the process by drafting unwilling attorneys is not the right way to do it. Even proponents of the death penalty would agree that death row inmates deserve due process, which includes being represented by a lawyer who genuinely wants to advocate for him.
Solos and small-firm lawyers have enough to do as it is. We need to be watchful of initiatives like Prop 66 and strongly oppose them. The problem is that a lot of times, the call for mandatory pro bono work doesn’t come from the public. The calls come from leaders in the legal profession, and responding to them requires a bit more diplomacy. I have a message for these people, but that will be saved for a future column.
Shannon Achimalbe was a former solo practitioner for five years before deciding to sell out and get back on the corporate ladder. Shannon can be reached by email at [email protected] and via Twitter: @ShanonAchimalbe.