I am curious whether I am alone on this issue. I believe that all lawyers should be required to take court appointments in criminal cases. What do you think?

I admit that my opinion is colored by my relative lack of experience, and I hate to disagree with John Bradley! But I have seen so many less-than-competent attorneys who *do* concentrate on criminal law... I shudder to think of what it would be like, dealing with estate lawyers and tax lawyers on a DWI or what have you...

There certainly are levels of competency among lawyers, and I agree with your suggestion that some lawyers probably need some additional education before taking on any, much less the more serious, criminal representation. But, that issue can be resolved with an educational requirement and appointments to appropriate cases (e.g. uncomplicated misdemeanor offenses).

(By the way, don't have any hesitation to disagree with my opinions. Many do, and, of those, many have changed my mind. While I may express strong opinions, I also enjoy a good rebuttal.)

I am more interested in a discussion of the notion that lawyers can just opt out of criminal appointments. Often, that means the most competent of lawyers (i.e. those that may charge the highest of fees) are unavailable for appointment on the most serious of cases.

How can criminal defense lawyers continue to complain about the appointment system if we don't change the one thing that could make a difference: who actually gets appointed?

Before I returned to prosecution, I worked as a civil lawyer in McAllen, Texas. At that time, there was not a Federal Public Defender system in place there. The result was that civil attorneys were forced to take numerous Federal criminal appointments. The number of appointments civil attorneys were forced to take was so numerous that many attorneys surrended their Federal license in lieu of having to take these cases. Others would get the appointment and hire attorneys with Federal criminal experience to take the case (until the Federal Judge stopped this practice). In short, what you had were a bunch of civil attorneys with no idea what they were doing representing criminal defendants. This worked great for the Federal prosecutors, but there was certainly no or at best very poor representation for the defendants.

I agree with John. I am really fed up with the hotshot civil attorneys who believe somehow that they are better lawyers than criminal lawyers because they have managed somehow to get a bunch of corporations to pay out big settlements to their clients. It certainly might open a few eyes as to just what is involved in a criminal case. I also think that a competent lawyer is a competent lawyer regardless of the type of case the lawyer handles. The good lawyers will still be good lawyers when they are appointed to a criminal case. They might have to learn something about the law or, heaven forbid, actually go to trial, but a competent lawyer is going to do a good job no matter what the case. Incompetent lawyers will be incompetent be it a speeding ticket or a million dollar pi lawsuit.

I agree there are clearly potential problems with appointing every attorney licensed to practice law to represent defendants. But to address the problem John has identified - lawyers that practice regularly in criminal cases but do not want appointments - how about a rule that if you appear as counsel in a criminal case, you are subject to appointment to other criminal cases? That is, if an attorney is willing to accept a fee, knowing that the rules provide that an attorney shall not represent a client in a matter in which the attorney is not competent, that same attorney must then accept appointments. I think it is a bad idea to begin requiring education in a specific area of the law. Such a requirement could set a precedent - next: all attorneys could be required to take the ad litem course and be subject to appointment.

I like Frank's suggestion. It really gets to the heart of the problem. And, I would include in that list any lawyer in a civil firm who later gets appointed to handle a federal writ.

Alleged "civil" lawyers take on capital cases at the federal writ stage and then grandstand about what a lousy trial lawyer the defendant had. OK, so, why not then require that lawyer, who has shown his proficiency in criminal law (and generally has civil trial experience) to take appointments in criminal cases and thereby actually improve the level of representation?

As another example, a criminal lawyer recently successfully challenged a conviction in federal court in a writ. That case will now be retried. Will that criminal lawyer be appointed to handle the retrial? And why not require that lawyer to take appointments, again, thereby improving the local representation.

We are all mature enough to accept the criticism of incompetent appointed counsel. But shouldn't we also be mature enough to do something that actually makes a systemic difference?

Naysayers talk about creating standards and public defender systems. But those alleged solutions do nothing if you are drawing from the same pool of lawyers for representation. One of the answers has to be requiring lawyers who are raising the complaints against other lawyers to make a difference by taking appointments and showing us all how well it can be done.

I know that it is important that we have competent attorneys available for court appointments. I certainly prefer dealing with a good lawyer rather than the alternative. However, I am not sure how comfortable I am with courts, the Bar, and others dictating to me what cases I must handle if I were in private practice. The reason the better lawyers opt out of appointments is the amount of time they must put into it versus the amount of money they get out of it. I would like to think that these same lawyers would feel some sense of obligation, community spirit, and professional pride in essentially donating their time to insure a pool of adequate attorneys for appointments. However, forcing work on attorneys seems a little extreme. Do they force dentists to give dental care to children who can't afford it? Doctors? Plumbers? I think that, whether we like it or not, attorneys should be free to practice the law they want to practice and in the manner they want. There must be some other way to accomplish this end.

When I was prosecuting, the judge appointed every lawyer in the phone book. I personally hated it. The civil lawyers didn't have a clue and thus filed every motion possible. It took hours to get to the same place an experienced defense lawyer could get to in a minute. In many ways, I had to represent both sides of the case to make doubly sure the appointed civil lawyer was legally competent.

Although I am not absolutely positive, I believe the resent fair representation act requires or at least implies that only voluntary lawyers should be appointed in rotation. The clear goal of that act is to improve the quality and competence of representation.

That said, I deplore that the "downtown" civil lawyers look upon all of us as the garbage collectors of the legal profession. They can't understand at ethical hearings why defense lawyers don't treat defendants like they treat their Mobil Oil deep carpet clients. I wish they could smell the jail and holdover cells and have defendants talk to them like they talk to appointed lawyers so often. Maybe then we would get the respect from the rest of the profession that I believe is deserved.

John, this is a great topic. My compliments for giving it attention.

John, your suggestion goes against the grain. The aproach of the last 20 years of board certification, etc. is for attorneys to concentrate in certain areas of the law to gain expertise to better serve their clientele. I have serious reservations about probate, family law, real estate, etc. attorneys doing a competent job in criminal court. The idea is to weed out the incompetent attorneys, regardless of their area of law, not to insert more incompetent attorneys into the criminal courts.

John, what you seem to be suggesting is that everyone should do their fair share in representing those who are under- or unrepresented. One way to do that, which likely would be equally / fairly repulsive to all, is mandatory pro bono, or something that looks pretty close to it. Since the silkleg firms already break their arms patting themselves publicly about their donated hours, if the bar would mandate a minimum number of hours, then perhaps the more competent criminal defense attorneys who don't currently accept appointments would find their way to the indigent criminal defendants, and the civil attorneys might be more likely to accept some of the hapless souls who come into our offices with grave injustices that really require civil action. Of course, prosecutors would need to be exempted from the requirement

Shane, I certainly am no fan of mandatory pro bono. That is the sort of activity that should come from the heart, not a law.

But, I am responding to the self-righteous lawyers who spend a lot of time criticizing the criminal justice system and no time in actual trial, except for a huge fee or a federal appointment after its too late to provide competent representation. OK, so let's weed out the lawyers who don't know anything about criminal law and don't want to learn anything about it. That still leaves a substantial number of very smart criminal lawyers who don't contribute one bit to making the Sixth Amendment effective for indigent defendants.

It is hardly indentured servitude to expect that lawyer to accept a court appointment with compensation to represent a criminal defendant. While the pay is not equal to the open market, neither is mine or any assistant district attorney. We do our job because we have accepted a profession that involves public service. Like it or not, the Supreme Court has made court appointed attorneys public servants.

Any argument for improving the representation of criminal defendants requires attorneys to surrender some autonomy. Judges need a competent group from which to select an appointed attorney. No system or set of wonderful standards makes a difference if the judge has the same 5 local lawyers to choose from.

Good stuff by all. Thought provoking. If we accept the proposition that every accused person is entitled to competent representation, free of charge if they can't afford it, then you simply cannot get around the fact that some lawyers are going to be required to do work that they otherwise would not choose to do. I don't know how the system survives any other way. By the way, isn't there some system of health care for indigents who cannot afford doctors and hospitals? I don't think it's entirely accurate to say that other professionals don't have these same type of requirements. Granted they may work differently than the legal system.

One way to alleviate the problem would be for a mandatory system of public defender's offices that pay a salary sufficient to attract and keep competent defense lawyers. It could still be funded, either in whole or in part, with court ordered attorney fee reimbursement by defendants.

One of the attorneys in my office formerly practiced criminal law in Nebraska as a public defender. According to her, the Nebraska system uses public defenders paid by the state. In effect, the public defender office gets the same amount of dollars as the prosecution side. This is how Nebraska attempts to ensure that there is no disparity between prosecution and defense.

What evidence exists to suggest that a public defender system provides any more competent representation than court appointed lawyers?

And there are noticeable disadvantages. One more beaurocracy that is even farther away from court supervision. Harder to get rid of an incompetent public defender than a bad court appointed lawyer. Public defenders tend to take on causes rather than clients. Increased overhead, health benefits, and retirement at county expense.

Again, the problem is solved by attracting more competent lawyers. By creating a public defender system and thereby closing the ranks on who can be eligible to represent an indigent defendant, there is a permanent separation of the more competent lawyers from the indigent defendants.

No one has proved that more money does much of anything to improve representation. Indigent defendants already have a right to expert witnesses and investigators.

This brings to mind a couple of things. When I was first licensed, my home address was in El Paso. By the time I got settled in Houston and got my mail forwarded I was receiving notices from the Courts in El Paso that I was on the mandatory appointment list. Evidently, at the time, everyone was supposed to take a certain number of appointments every year. Maybe someone from the western territories can tell us if the system is still in place in El Paso and if it works.
Also, many of us remember the original 11.071. There were only a handful of lawyers statewide who wanted these writs so the CCA just drafted people to write them. Now we have people shouting to create a claim for ineffective writ lawyers.
Having said all that, it seems like if the bar can make us pay $65 to fund legal services for the poor they ought to be able to make people take court appointments.

[This message was edited by Eric C. Carcerano on 10-29-03 at .]

John:

Many times I find myself on the same page as you, but I can't let your statement that:

"No one has proved that more money does much of anything to improve representation. Indigent defendants already have a right to expert witnesses and investigators."

In my experience, there is no comparison in the difficulty of obtaining a conviction on the indigent defendant who gets the Court to approve a couple hundred bucks for an expert witness or investigator versus trying a wealthy defendant with the resources to afford a team of attorneys and the preeminent experts in their respective fields.

The danger in making all lawyers try criminal cases is that criminal law--like every other area of law--has trended towards the technical and specialized. And when the inexperienced criminal lawyer (although he may be AV rated in personal injury) makes a mistake it is the prosecutor who pays the price when the defendant files a motion for new trial or appeal alleging ineffective assistance of counsel. It can hardly be explained as "trial strategy" that the lawyer told his client that he could get probation from the State Jail Felony jury or failed to challenge an improper enhancement paragraph.

I don't know that a public defender's office is the answer--the answer may be the way Smith County handles it--contracts with 4 or 5 attorneys to handle all indigent felony defendants--or some other alternative. I just know that I would cringe when a board certified estate planning lawyer showed up to defend a defendant on a complex felony case involving DNA, search issues, blood splatter, self defense instructions, and other issues that we deal with every day. On second thought--maybe the lawyer could just write his client's will at the conclusion of the case because its doubtful that he would be getting out for a long, long time.

OK, I'll grant you that a client with a million dollars at hand can get a more interesting defense (again, check out the ongoing defense being offered in the Crazy Galveston case). But no public system is going to give the defendant that kind of money. What gets a defendant better representation is a better lawyer.

John, What's the difference between what you are talking about and mandatory pro bono? In both cases, we are compelling attorneys to perform work for little or no money. Shouldn't an attorney in a free society be able to decide which cases he or she takes or doesn't? What about the attorney who doesn't want to represent certain types of criminals, sex offenders for instance? And what about the issue of the degree of competence? If giving indigent criminal defendants better representation is the goal, why shouldn't we compel the best attorneys to do all of the court appointments? In my discussions with the attorneys in my community who do not accept appointments, the issue is often a quality of life issue. Others choose to serve their community by doing pro-bono work for charities and through other means. I just think that we open up a Pandora's box when we seek to regulate the consciences of the members of our profession. And finally, I am not completely ready to accept the premise that our system of appointing attorneys is broken. Sure, it can be better and it would be nice if every defendant received the very best legal representation, but that's just not the real world. In Bryan/College Station and in Harris County (where you and I worked together), I have not observed a dearth of attorneys willing to take appointments. I do know that good judges are selective about to whom they appoint certain cases and they do have standards for even being on the appointment list in the first place. Attonerys must receive continuing legal training every year. The appellate courts police ineffective assistance of counsel. Is there really a problem?