Two recent reports confirmed what experience has shown.  Bad lawyering in criminal cases is to be blamed not merely on individual attorneys – the proverbial “few bad apples” –  but on a systemic tolerance of underperforming.

This was brought home, first, when a federal judge in Maine concluded that a criminal conviction would not be overturned even though defense counsel was disciplined precisely for poor representation in that case.  The report of the Maine BOARD OF OVERSEERS detailed counsel’s failures:

Attorney Hanson has acknowledged various errors on his part in relation to his representation of Mark Theriault. He understands and agrees that he did not utilize the court-approved private investigator to independently investigate the case or to pursue the areas of investigation suggested by his client prior to the trial. He understands and agrees that he did not spend sufficient time with his client to prepare him for the trial, or to make his decision regarding whether he would testify. He also understands and agrees that he did not request additional time to prepare his case for sentencing, or to prepare his client and the other witnesses for the sentencing proceeding.

Then why no relief?  As the federal judge explained, “attorneys can fall short of the local rules of professional conduct, subjecting them to discipline, without necessarily being so deficient that their performance undermined the reliability of the trial.”  Theriault v. Maine, No. 1:16-cv-00576-JAW, 2017 U.S. Dist. LEXIS 140469, at *30 (D. Me. Aug. 31, 2017).  In other words, the Sixth Amendment provides relief only when there is a reasonable likelihood that without counsel’s errors the outcome might have been different.  A lawyer may be terrible, yet relief may be denied on a ‘no harm, no foul’ basis.

Just as the Sixth Amendment provides no relief for many attorney deficiencies, so too is there a failure in disciplinary processes.  Bar discipline proceedings don’t improve lawyering, perhaps in part because they are so rarely applied to criminal defense lawyers and prosecutors.  See, e.g., James S. Liebman, The Overproduction of Death, 100 COLUM. L. REV. 2030, 2121-122 (2000) (“Bar discipline is almost nonexistent; prosecution for malfeasance is all-but-unheard-of and always unsuccessful in the rare instances in which it occurs.”).

The failure to discipline or otherwise enforce standards of quality representation persists.  “The State Bar Associations could also do a better job of ensuring that criminal defense attorneys provide adequate representation.”  SYMPOSIUM ARTICLE: The Illusory Right to Counsel, 37 Ohio N.U.L. Rev. 597, 620 (2011).  The result?  “Although unsettling, it is intellectually easy to explain why criminal defense lawyering is lacking: (1) ineffective assistance of counsel claims are difficult to win; (2) criminal malpractice claims are even more difficult to win; and (3) referrals to appropriate disciplinary bodies are both infrequent and unsuccessful.”  The (So-Called) Liability of Criminal Defense Attorneys: A System in Need of Reform, 2002 B.Y.U.L. Rev. 1, 5.

This system failure has a strange mirror image in a case from Utah where a court declined to ensure that adequate representation would be provided.  In a capital case, post-conviction counsel Samuel Newton had to move to withdraw from the case, just days before a scheduled evidentiary hearing, as reported in a new account, the lawyer moved to withdraw from the case because

the hearing would require hundreds of hours of investigation and preparation, which he estimated would cost more that $37,000. The county, however, had authorized payment of only $15,000. The attorney said concerns about inadequate pay on Lovell’s case and another death penalty appeal was causing him stress-related heart problems.

The solution?  Not to pay the lawyer for the time needed but instead to declare this a “conflict,” remove counsel, and appoint someone new (and, presumably, someone who would not put in hours that would exceed the cap).  And the death row client?  Before the removal of counsel, the inmate had “typed two letters to the judge, pleading with him to keep Newton on the case and asking the judge to order Weber County to renegotiate Newton’s contract.”  As the inmate elaborated in a letter to the court, “[f]or the first time, I got an attorney who represented me to the fullest.”

These instances confirm that bad lawyering is not a “few bad apples” problem.  This is a systems failure.