John R, I agree that you'd get better compliance at the appellate level, plus you ensure finality by avoiding reporting on someone based on an order or opinion that is later reversed.

But how do we catch those defense attorneys who "fall on their swords", as Bud so eloquently put it? I know of at least two defense attorneys (one was board certified and later ran for a seat on the bench, and the other was once a judge him/herself!) who testified in open court to their own incompetence in order to secure a plea withdrawal for their client. I don't believe either was truthful, but naturally, nothing happened to either one. Since those cases don't filter up the appellate system, I'm stuck on how to "capture" them.

Lastly, the new Task Force on Indigent Defense is supposed to promulgate guidelines for the appointment of local attorneys, so perhaps it could be suggested that attorneys with a documented history of providing ineffective assistance should be DQ'd from receiving appointments. Counties who ignore the rule could be threatened with loss of grant funds, I suppose.

John R., I think a report of ineffective assistance is a good start, but that does nothing with the problem of what a grievance committee does with the complaint. As I alluded earlier, my experience has been that the committee does absolutely nothing. It is a discouraging waste of time and effort worthy of Sunset review.

All that aside, I think John B's original question was can, or should, that ineffective assistance have a more immediate consequence in gaining appointments for new clients. I don't know if there is now, but there certainly ought to be some sort of quality assurance or review of the appointment list. It seems that peer review, be it from judges, prosecutors, other defense attorneys or clients, is in order. I'm not saying that a negative comment from a dissatisfied (and possibly incarcerated) client should spell the end of appointments, but there needs to be some accountability.

Having worked on both sides of the criminal defense equation, I would urge some caution; but I have seen far too many poorly represented defendants that have eaten up my time when I have to protect the record from bad lawyering.

Obviously, I was hasty in my last response. I see the light of Mr. Bradley's concern that areas of weakness be pointed out, then addressed with the attorney.
However, I do not believe the grievance committee is the proper area. I can think of one attorney, in particular, who the appellate court found ineffective. However, he is an earnest attorney with a good understanding of the law, who attempted trial strategy, but it backfired.
I can think (back to my prosecuting days) of several times that has happened. However, I can't think of a "one-solution fits all" answer.
We can start by taking a critical look at law school criminal law courses. Are they emphasizing the critical importance of the Penal Code and the Code of Criminal Procedure, and trial strategy in general. I have known good, knowledgable attorneys (in the area of criminal law), who had all the right arguments, but no ability to convey them to a jury (ie: no trial skills).
Perhaps we can start, now, by emphasizing the critical importance of knowledge of the criminal laws and procedure. Perhaps everyone who is to practice in the criminal realm should pass some type of proficiency test. Obviously law school and the bar exam are not good measures of competence. And, maybe a CLE requirement of the Advanced Criminal Law Seminar (which I hear is really good, and Bexar County is requiring it). The TDCAA seminars that I have attended are top notch also.
If our emphasis is on defendant's rights to effective assistance of counsel and justice, then let's start training. Let's start requiring training at all local appointment levels.
I am of the opions that turning attorneys in to the grievance committee will have chilling effects. Some milder defense attorneys might just agree with the prosecutors (without arguments or motions that bring about new and novel approaches and opinions) just to avoid being turned in (by equally well meaning but misguided prosecutors). The seasoned attorneys will keep right on doing what they are doing. And the truly smart attorneys will quit defending clients to keep their attorney's record clear with the grievance committee.

Okay, so I think these are the separate problems identified so far, including my added 7:

1. Lawyers with histories of ineffective assistance are still appointed to defend the indigent.

2. Lawyers have intentionally rendered ineffective assistance or untruthfully admitted to ineffective assistance in order to affect the disposition of cases, but have faced no consequences for their actions.

3. Grievance committees have often failed to punish clear cases of misconduct brought before them.

4. Lawyers and judges are reluctant to use the grievance process for many reasons including #3.

5. Bringing ineffective assistance to the attention of the trial court during a plea or trial amounts to a busted prosecution.

6. Anyone who is a possible target of an automatic referral hates the idea and worries that the grievance committee won't have all the facts or understand the realities of representing criminal defendants.

7. Coordinating referrals for misconduct and reports of findings of misconduct in the second largest state with dozens of methods of appointing lawyers in dozens of counties might require a significant outlay of dollars in the face of shrinking state revenue.

Obviously, the legislature will be looking at 3 and 4 anyway under Sunset. I think the answers to some of the others are already in the thread. You can argue that the money problem will be solved in the future through offsets, i.e. if you have better lawyers in the system by chasing out bad lawyers you'll have less litigation and re-litigation, hence lower costs.

You could also take an incremental approach. Legislatively mandate referrals. Any disciplinary action taken by the committee will end up in the lawyer's file. Legislatively mandate periodic checks by the appointing authority of lawyer records on the web, and require inquiry prior to new appointments if their record indicates a disciplinary action. No new technology required, so little or no outlay this session. Then, if the problem continues, get a heavier duty reporting system and mandate what the reporting authorities must do.

I think if we ask around, you find that most ineffective assistance is not due to ignorance of the law, but instead due to other factors too numerous to list. Thus, while training is great, it probably would not solve the bulk of the problem. Plus, if simple ignorance is the cause, then the sanction for it might be more remedial (training) than punitive.

We all know good lawyers who made good faith mistakes, but they are not the ones this thread is aimed at. I think most of these folks are talking about the serial offender who seems to always have business in your court.

If training is the right answer, then it needs to include financial management of the small or solo firm, how to recognize incipient psychological problems in your clients and you, and how to sober up before you lose your family, your business, and your life.

I don't think training will do it.

Frank: Maybe this goes back to John R.'s query about the relationship between the two prongs of Strickland and continued qualification for appointment as counsel under SB7. Violation of prong one (lack of reasonable competence) may be a good reason for a report and investigation to be made of whether an attorney is qualified under 26.04(b)(5), yet I think the state could still take the position in any individual case that the representation was not constitutionally ineffective under the prejudice prong (and thereby raise consequences for the attorney but still preserve the conviction). This would in my estimation, still represent "justice" for the defendant. Of course, it may be argued that until actual prejudice arises (perhaps repeatedly) the attorney should continue to receive appointments.

John R's suggestion to have reporting done by appellate courts also makes a more objective event (a finding/ruling by the court) be the trigger for a report of incompetence rather than just having an opponent at trial make a more subjective observation of the misconduct or incompetence. I think that's a good idea.

And a big welcome to Shannon Edmonds, who (as he said) joins TDCAA on June 6 as our new staff counsel/legislative dude. We are really excited to have him come work with us. We'll have a little more biographical information on Shannon posted on the website on his first day, but briefly, he worked for the Travis County Attorney's office, then the DA's office, then with the criminal justice portion of the governor's office under George Bush, and then last session for the lieutenant governor's office. We can't wait to have him start.

In other TDCAA hiring news, Alison Holland will join us as research attorney (replacing Erik Nielsen, who went to work for the Travis County DA's office) on June 3. Alison currently is a briefing attorney for Judge Mike Keasler at the Court of Criminal Appeals. We're excited to have Alison come join us too. She'll take over answering legal questions and running the website.

Those of you who get the NDAA's "Prosecutor" may have seen this already, but I thought I'd revive this dead thread by adding the following update:

At its most recent board meeting, the NDAA issued a policy statement urging that lawyers previously found by a court to have rendered ineffective assistance of counsel in capital cases be banned from all future representation of capital defendants. Here's a link (to a .pdf document) if you want to see it yourself: NDAA Resolution

Comments?

Whoa, Beck, you hold these guys in "high esteem"????
John (R), Dallas County has an appellate list now -- had an application for appeals and a second for writ appointments, and the judges approved a list from those last month. Not an appointment wheel, just a qualification list, and I'm not sure how discriminating it is. I hate to burst your bubbles, but Joe Bone v. State in June just about shut down ineffective assistance, at least on direct appeal, and short of an appellate finding I truly doubt most trial prosecutors would know ineffective assistance if it hit them in the behind. I know I am appalled by the total ineptness of many of the trial attorneys on both sides in the cases I review, whether I'm working as defense counsel or as a special prosecutor. It's generally nearly impossible to get a court finding of ineffectiveness no matter how bad the record looks. When I was a full-time prosecutor I always counseled trial prosecutors that it was our job as D.A.'s to do justice, so it was our job to make the trial a fair one even when defense counsel was asleep at the wheel. Sad, maybe, but true. Shannon, I would love to see the bar lose its disciplinary powers and see an educated independent body handle the job -- I'm just not sure how anyone would legislate it. Bottom line, its just too damn bad that many lawyers (on both sides -- I'm not pointing fingers) are content to go through their whole careers doing lousy jobs and looking out only for their own economic well-being. And much as I hate to say it, I think the appointment system itself is a lot to blame to poor representation, especially on appeal. Isn't there a huge inherent conflict in expecting attorneys to do their absolute best when it will anger the folks authorizing their paychecks and giving them new business??

[This message was edited by Sue Korioth on 10-10-02 at .]

Hey Sue, your point about Bone is well taken. But, that case came out after most of the discussion, so can you really fault me for failing to forsee that they would ratchet up Thompson. Plus, one of the ideas was to have the CCA also make reports based upon findings in 11.07 writs, which ameliorates the Bone problem somewhat.