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February 2007

Educating The Regulators

The regulation of the practice of law lies in the hands of lawyers. But not just any lawyers. Typically, members of grievance committees walk the halls of white-shoe firms, specializing in representation of the well-heeled and the privileged. From time to time, these firms will do pro bono work, typically on cases flattering to the image the firm wishes to portray.

Being released from the ordinary pressure of representing little people in big trouble for a living, these regulators of our ethics have a cheery perception of the profession. Is it a mistake to let them enforce the standards for the practice of law? Or is it a sub rosa form of tort reform? Make the profession conform to the standards of those with money and only money will talk.

Would the lawyer cops be so quick to counsel client communication at the drop of a hat if the meter were not running, or their clients' oars weren't sure to hit the water at each stroke? All small-firm lawyers know from bitter experience the obsessed client whose hang-nail is worth millions.

I say we trench-bound lawyers living from fee to fee ought to help to educate the regulators. We can do that by sharing our client-base. My office has begun a practice of trying to refer at least a couple of potential clients a week to members of the various grievance committees in Connecticut. We are fortunate to have the ability to do so.

I am encouraging others to do the same.

Next week some evening when you return from court bleary-eyed to face the challenge of the evening's calls, select a potential client to refer to a member of your local grievance committee. Oh, I suspect the client may not be among the most promising. It may be someone whose issues are apparent even on a brief message pad. But help educate the regulators. Given them a taste of something other than a Fortune 500 phone call.

Start at the top, I say. Here's a link listing the members of the federal Grievance Committee in Connecticut as posted on the federal court web page. Refer A Case Or Two To The Needy Odd how no phone numbers were included. I wonder whether there is a reason for that?

We'll be waiving referral fees in the these cases for reasons that will be obvious to anyone feeling a similar spirit of generosity. Consider such referrals a twofer: You avoid the grievances that come from representing the unstable while educating the regulators that for most folks the practice of law isn't peaches,cream and a self-congratulatory pat on the back.

Supremes: Trial as Pity Party OK

Score another victory for one the law's great sub silencio doctrines: the heinous crime exception to the Bill of Rights. The rule holds that where the crime is vicious, appellate courts will look for a way to uphold a conviction, even in the face of error.

In Carey v. Musladin, 2006 WL 3542769 (U.S.), the United States Supreme Court reversed a Ninth Circuit decision granting a habeas petitioner a new trial. At issue was whether in a murder trial a defendant was denied a fair trial as a result of spectator misconduct. At trial, spectators wore buttons displaying a picture of the victim. The defendant argued self-defense.

Had the spectators worn the buttons at the request of the state, the defendant might well have been ordered a new trial.

The case law in this are is confusing. In Holbrook v. Flynn, 475 U.S. 560 (1986), a new trial was held necessary when the state ordered that four uniformed troopers sit directly behind a defendant at trial. Estelle v. Williams, 425 U.S. 501 (1976) makes it unlawful to require a defendant to wear prison garb and shackles in a jury's presence. In both cases, the court has applied a test asking whether the prohibited practices further an essential state function. Thus, in a case where misconduct is not the result of an essential state function an error is more likely to result in a new trial.

But must a petitioner prove prejudice to prevail in such a claim? The California Court of Appeals held that a petitioner must show that the impermissible factor branded the defendant with an "umistakable mark" of guilt.  The Ninth Circuit, on review, dispensed with that requirement.

So in stepped the Supreme Court, which avoided the issue of prejudice altother and held that under the habeas standards set forth in the AEDPA, the Ninth Circuit had erroneously concluded that the California Court of Appeal decision was contrary to or an unreasonable application of clearly existing law.

Put another way, we still don't really know where actual prejudice need be shown in a case of spectator misconduct. We do know that Mr. Musladin, a convicted murdered, will remain behind bars even though friends and family of the victim tried to transform a trial into a pity party. That's wrong.

Give This Class An "F"

Want proof that the the third year of law school is really not necessary? Consider the following course, taught at the University of Connecticut School of Law. While I am all for making sure that lawyers know how to listen and are acquainted with all forms of human suffering, transforming the law into an adjunct of social work is just plain insipid.

"I object," jugde. "The question is insensitive."

Ooh, lah, lah.

Seminar:  Therapeutic Jurisprudence 692

Spring 2007

PROFESSOR:                     ROBERT G. MADDEN, LCSW, JD


Therapeutic Jurisprudence is an interdisciplinary approach to law that focuses on the impact of legal rules, processes and institutions on people's emotional lives and psychological well-being. Using this perspective, the course examines recent developments in several areas, including collaborative divorce law; creative problem solving; the establishment of drug treatment, domestic violence, mental health and other specialized courts; preventive law; procedural and restorative justice; and alternative dispute resolution. Readings include materials from psychology, criminology, social work, and other disciplines. The course is designed to emphasize how therapeutic jurisprudence may enrich the practice of law through the integration of interdisciplinary, non-adversarial, nontraditional, creative, collaborative, and psychologically-beneficial legal experiences.

Marginalizing the Marginalized

Connecticut has recently adopted new rules of professional conduct.  These new rules, according to legal ethics experts, require lawyers to obtain a client's permission before withdrawing a frivolous claim.  If the client refuses to withdraw a frivolous claim, the lawyer's only recourse is to withdraw from representation.  Under the new rules, lawyers will also be required to explain (in painstaking detail) every routine decision made in the client's case.

At first glance, these seem like great changes.  Who could be against more client communication and informed consent?  The changes will do more harm than good.

Most clients in criminal and civil rights cases are already living at society's margins.  Even guilty people who are the product of "good breeding" tend to stay out of the system: A phone call to the right person usually prevents charges from being filed.  People who end up charged with a crime or end up with a baton upside their head come from poor backgrounds, and generally have atrocious social skills.  They are demanding and often irrational.  These people still need - and deserve - legal help.

Under Connecticut's new rules, these clients will be less likely to receive legal help.  Here's one example why.

A client who gets hit upside the head with a police baton potentially has a claim under 42 U.S.C. 1983.  The client will not be content merely to sue the officer.  He will want to sue the officer, the city, the officer's supervisor, the dispatcher - even the maker of the baton.

Under clearly-established law, however, it is almost impossible to hold the municipality liable in garden-variety police misconduct cases: A city is not liable for the acts of a rogue officer.  Lawyers understand this, and carefully select whom to sue.  But try explaining this law to an outraged client.

Fewer lawyers will desire to explain - seven or eight times - why a claim is meritless.  Instead of dealing with difficult clients, they will not represent them.

When a white-shoe client calls a lawyer, the clock ticking and billings are being generated.  When a client so poor that he could not afford legal fees (and thus the lawyer takes the case on a contingency basis) calls, productivity stalls.  When the client keeps calling with the same questions, most sensible lawyers will cut their losses - and cut off the client.

The problem with Connecticut's new rules stem from the fact that the people writing them have never taken on difficult cases, and thus do not understand the rage of someone who has spent his life at society's margins.  The rules will close the courthouse doors to people who need them open most of all.

Time For A Change

Connecticut has just adopted new Rules of Professional Conduct, joining those states that have adopted an informed consent model of client communication. The new regime replaces one that was more paternalistic. As a result of the change, lawyers are now more prone than ever to be grieved and to have the grievances stick.

After attending a couple of seminars on the new rules, I've decided to change practice focuses. I will no longer be taking cases from clients who are difficult, and I will avoid new cases in the areas of employment law and post-conviction relief, such as habeas corpus. My firm announced the change on its blog page today. Tort Reform By Any Other Name

The old rules required mere reasonable communications, giving lawyers some breathing room. Under the new rule, however, you are tethered to a client's needs. Thus, a client in a habeas case will write asking why it is not a conflict of interest for a lawyer to represent another client at the same time. Why is this not a conflict? Or try explaining to an angry client in an employment case why they must answer interrogatories -- for the second, third, or fourth time.

The law is filled with miserable people. But miserable people with time on their hands are the worst of all. Adieu, I say.

Of course, misery isn't merely entrenched in habeas corpus work or in the lives of the newly unemployed. Misery is ubiquituous among clients. Consider: A lawyer must consult a client before withdrawing frivolous claim. Or, a lawyer must ask a client to make a demand in anticipation of a settlement conference when the defense has already indicated it has no more than nuisance value and the client lays a lifetime of woe at the defendant's feet. Futility is no defense to the demands of the new god of communication.

I don't intend to look only for happy clients. I'd be selling pencils if that were the case. But I will screen far more carefully, and have begun to do so. I never take a client after the first meeting. I tell them the attorney-client relationship is like marriage, and is struck for better or worse. As most clients are on their best behavior in the first meeting, I make it a practice not to represent those who make me uneasy. Sleep on the decision to represent someone for a day or so, no matter how large the retainer.

It's sad, this change in client selection. But it is a matter of survival in an arena dominated by ethics racketeers who have never practiced in small firms and seen what it is like to hustle in the law's dark places.

There is one bright note, however. I am making list of the lawyers serving on the various grievance and ethics committees. I'll be referring the difficult clients to them henceforth. I'll bet they won't take the clients, either.

Super Confusing

Moments ago I received a call from the president of Super Lawyers. He was calling to inform me that a profile of me was appearing in publication about Connecticut Lawyers. I had wondered aloud in an earlier piece whether my profile and that of another lawyer had not been published in an advertising supplement appearing in Connecticut Magazine because we had not purchased ads.

I still wonder about Connecticut Magazine, but I was asked promptly to clarify what I wrote earlier. I have done so.

Scalp-Hunting at Justice

The Daily Kos has this report and request for information on the forced resignation of United States Attorneys. What's going on at the Justice Department? Blind Justice? Apparenlty U.S. Attorney Alberto Gonzalez is looking for just the right sorts of ideologues to serve as the nation's top prosecutors.

Of course, not all U.S. Attorneys are subject to this mass execution. While those who views are a little too close to center are being forced out, those who can march lockstep to the new authoritarian drumbeat see room for advancement.

Connecticut's U.S. Attorney, Kevin O'Connor, for example, was recently kicked upstairs. In early January, he was promoted to the position of associate deputy attorney general. His responsibilities will primarily entail reducing violent crime, illegal guns and gangs. Recent Justice Department statistics reflect an increase in these crimes.

It's an unusual assignment to give to a federal prosecutor from a largely quiet New England state. Although Connecticut is no stranger to gang activity in some of its cities, the state's urban areas are tiny. The state's largest city, Bridgeport, for example, has a population of but 139,000, according to the 2005 United States Census. We don't know much about big-city problems here in the Land of Steady Habits.

But ideological compatability is hard to find, apparently. So Mr. O'Connor enjoys his new post in Washington while simultaneously serving as Connecticut's U.S. Attorney.

Mr. O'Connor must have the right stuff for an administration with authoritarian tastes. While some U.S. Attorneys are being forced from their jobs, Mr. O'Connor has been given two jobs to perform at the same time. Achtung, Herr Kevin.

The Big Lie In Hartford

Lie often and boldly and you just might be deemed to be telling the truth. Isn't that what Orwell taught? Daryl Roberts of the Hartford Police Department appears to have read his Orwell.

Roberts, the chief of the city's police department, testified yesterday before the Connecticut Legislature about the arrest of a client of mine, Ken Krayeske. Krayeske was arrested as he took pictures of the governor during her inaugural parade. One Press Account

Just why he was arrested has become a topic of much discussion in the state. Legislative hearings have taken place before we've even had our first pre-trial.

Three lay eyewitnesses have come forward to say that they saw the arrest. Mr. Krayeske stood taking photographs when he was taken into custody.

A police report by the arresting officer notes that Krayeske was targeted by the state police as a potential threat, as were, apparently, other people designated as activitists. Roberts testified that Krayeske was not targeted for that reason. Who to believe, the arresting officer or the bureaucrat playing spin doctor?

Eyewitnesses say Krayeske was doing no more than taking pictures. The chief testified that the man "breached the parade route." The spin doctor is out of control.

Eyewitnesses say Krayeske was taking photographs when he was arrested. The chief isn't sure whether the man had a camera.

The case is a frightening prism through which to consider civil liberties. One lawmaker at the hearing thought it unfortunate that law enforcement was questioned at all. Had the arrests occurred immediately after 9-11, the lawmaker mused, we'd be congratulating the officer. Perhaps that lawmaker would have. I count him a casualty to the war on terror.

I wish Chief Roberts had competent and admissible testimony to offer in the Krayeske case. Something tells me he'd be singing soprano shortly after his cross-examination began.

Richard Brodhead: Misunderstanding the Presumption of Innocence

The presumption of innocence is a legal doctrine that applies at trial.  Jurors are supposed to presume that the person before them who has been charged with a crime is not guilty.  It is up to the prosecutor to rebut this presumption.  It's easy to think of this way: We presume a person is innocent until the prosecutor proves otherwise.

In a recent statement, Duke President Richard Brodhead said that his handling of the Duke lacrosse scandal has been guided by this principle: "[O]ur students had to be presumed innocent until proven guilty through the legal process."  Did Richard Brodhead presume the Duke lacrosse players were innocent? 

When the students were charged with rape, he immediately prohibited them from returning to Duke.  He cancelled their entire team's lacrosse season.  He fired their coach.  Is punishment before conviction consistent with the presumption of innocence?

Several months later, after substantial evidence showed the players were almost certainly innocent, Brodhead (through an intermediary) invited the students to return to campus. 

How is punishing  someone before they are convicted consistent with a respect for the presumption of innocence?  How is lifting that punishment only after substantial evidence of innocence is revealed consistent with a respect for the presumption of innocence?

Brodhead presumed the students guilty.  It was only afer the students proved their innocence that he lifted their punishment.

The disconnect between Brodhead's words and deeds are striking.  The only question now remaining is whether Brodhead is a liar, or whether he simply lacks a first-grader's understanding of the presumption of innocence.