Representing the Wretched

I’ve written about representing the guilty. Now, via Defending People and from Preaching to the Choir, I’ve come across a wonderful treatment of representing the wretched:

So I was perusing an internet comment board this afternoon. (I know, I know. Stay away, those internet message boards are filled with crazies. Nothing good comes from reading, etc. I know. Meryl’s staging an intervention, but in the meantime, I learn interesting things about the general populace.)

Anyway, I found this comment on an article about a capital murder case:

The Constitution does a lot to protect fools, the undeserving, and pieces of human trash.

Reading that made me grin. I felt all warm and fuzzy inside. And I said with pride, “Hell, yeah, it does!”

I’m willing to wager that’s not the reaction the writer was expecting. Based on context, I’m fairly confident the writer wrote those words with a rueful shake of the head and a sense of outrage that the Constitution does protect those folks. I suspect the writer would think it not such a bad thing if we added an asterisk to the Bill of Rights indicating these rights do not apply to fools, the undeserving, and pieces of human trash.

But, me, I think it’s awesome. (Yes, I’m a lawyer with an extensive vocabulary and that is the word I choose.) It’s easy to respect the rights of the pretty people, the popular ones, the charming folk, the nice guys. No one’s going to run roughshod over Mr. Rogers’ rights. We probably don’t need a Constitution to protect the Prom Queen. It’s the assholes we need to write the rules for. It’s harder to treat them well, to be fair to them, to refrain from punching them. So 200-some years ago, we wrote a contract with ourselves to make sure we would always respect the rights of the worst among us.

It’s easy to treat the good people well. But the true measure of our character is how we treat the bad ones. We choose to treat them fairly and with respect. And I think it’s awesome.

Here’s that link again from Preaching to the Choir, in case you think this is as “awesome” as I do.

Representing the Guilty

While catching up on my blog reading recently, I came across a recurring topic in my field that I’ve yet to address here.


In this instance, Keyana, a self-described aspiring criminal defense attorney, explores her apparent belief that there is something inherently wrong with representing people who are “guilty as charged.” The solution, she exposits, is to cast one’s role in terms of seeking justice. Then one is free to fulfill the role of criminal defense attorney “in good conscience.”


Her essay ran afoul of Scott Greenfield, a New York criminal defense attorney whose sharp wit is generally on-target but who pulls no punches when it comes to his subjects’ feelings. Unlike Greenfield, who lambasted the baby lawyer for her ignorance, I’m not particularly offended by Keyana’s essay. She’s merely expanding on a viewpoint that I’ve encountered  over cocktails for more than a decade. But I agree that she’s dead wrong. She’s also missing the big picture.


In the first place, the criminal defense attorney’s role is NOT to seek justice—that’s the prosecutor’s job. The criminal defense attorney must be a zealous advocate for her client’s interests within the bounds of the law and the rules of professional responsibility. PERIOD. Trying to spin that into a mandate to seek justice runs the serious risk of undermining your client’s interests when they run counter to the common good. That could actually get you disbarred, and rightly so.


Having worked both sides of the docket, I can comfortably say that prosecuting is easier. One reason is that a prosecutor rarely has to see the big picture in order to understand why what she’s doing is good and important—that’s obvious.  But for criminal defense, one may have to grasp the bigger picture to see the nobility of the profession. That can be difficult for newbies, particularly in those cases where they represent the “wretched refuse of [our] teeming shore.”


The bigger picture is that, in doing our jobs to the best of our abilities, criminal defense attorneys protect the innocent by policing the police. Believe it or not (and this can be a very hard truth for newbies), some cops lie, cheat, and, yes, even arrest and hurt innocent people. Some prosecutors and judges let them get away with it and some even participate.  More often, they simply don’t know about it and have neither the time nor the inclination to investigate the complaints of the accused.


But the point is that, if defense attorneys aren’t doing their jobs and getting cases thrown out when they suck or the cops break the law, then nothing will keep bad cops in line, which is a very scary prospect. Bad cops are worse than ordinary criminals because they have the full force of the government behind them to oppress the people (yes, even innocent people) who can bring their criminal activities and other misconduct to light.


A final point that bears mentioning…There is a huge range of punishment for most offenses. Sometimes a person is guilty of a criminal offense but nonetheless undeserving of the relatively harsh punishment the prosecutor seeks. The prosecutor may be unaware of the mitigating circumstances, disinclined to believe the defendant, or biased against someone accused of this type of offense, regardless of the circumstances. Such a dendant is “guilty as charged” but nonetheless entitled to a fair punishment, i.e., a punishment that accounts for the mitigating circumstances. That’s unlikely to happen without the assistance of a criminal defense attorney.

Case of Note: State of Texas v. Bennie Fuelberg

10/9/09 [11/22/09: Added Chris Gunter’s name and bio link]. The Pedernales Electric Cooperative case has been going on for a while but a new issue has come up that caught my attention. In the criminal case against former PEC executive Bennie Fuelberg, the AG’s office is trying to get Fuelberg’s attorney, Chris Gunter, disqualified, claiming that his previous representation of the PEC, as the alleged victim, amounts to representation of an opposing party. For more, see this Statesman article.

The applicable rule is counterintuitive to many people but it’s well-established that, in a criminal cases, the alleged victim is not a party to the lawsuit. Rather, the parties are the State of Texas and the accused. Nonetheless, the AG’s office would like the court to find the opposite in this particular context.

I haven’t had cause to research the issue but I’m skeptical of the AG’s position. Furthermore, I suspect that such an exception would open up a loophole that would be contrary to the interests of the State and alleged victims in general.

11/22/09 Update.  A visiting judge rejected the state’s request to have Bennie Fuelberg’s attorney disqualified. See this Statesman article for more.

1/29/10 Revision.
Changed category from “Cases of Note” to “Case Law.”

D.A.’s Discovery Policy Conflicts with Rules of Professional Responsibility

A recent post by Houston lawyer Mark Bennett and an unrelated discussion among some of my local colleagues last week got me to thinking about a potential conflict that affects criminal defense attorneys in Travis County. The issue arises if we obtain a copy of the offense report before trial and the client later asks for a copy of it.


As a practical matter, reviewing the offense report is generally necessary in order to negotiate an appropriate pretrial resolution, make informed decisions about whether or not to go to trial, and prepare a defense, which the defendant is supposedly entitled to by law. But in Texas, defense counsel isn’t entitled to obtain a copy of the offense report until trial. Thus, district attorneys can and often do put conditions on pretrial disclosure and there’s a pretty big range in policies from one jurisdiction to another. Some D.A.s are extraordinarily draconian in this area and at least one is exceptionally enlightened.


The Travis County District Attorney’s new policy is somewhere in the middle and requires defense attorneys to sign an agreement that, among other things, prohibits them from giving copies of the offense report to their clients. The rationale seems to be that the reports sometimes contain sensitive information that might jeopardize the safety or privacy of witnesses. The situations where there are real safety or privacy concerns that outweigh the accused’s interest in knowing the evidence against him are relatively rare, in my opinion, but I can certainly understand why the state might want to limit disclosure where, for example, the defendant is known to be dangerous and vindictive, the allegations are very serious, and a witness’s home address is not already known or readily available to him.  Then again, problems like that can probably be fairly easily remedied by redacting the sensitive information, but I digress.

Whether justified on a global level or not, the D.A.’s policy is what it is and criminal defense attorneys who practice in this jurisdiction must sign the agreement if we want to effectively represent our clients. A sticky issue can arise, however, when a client asks for the lawyer’s file and it contains a copy of an offense report that was obtained pursuant to the D.A.’s discovery agreement. In that situation, the D.A.’s non-disclosure requirement directly contradicts the attorney’s duty under the applicable rules of professional responsibility. The client is deemed to be the actual owner of the file and the lawyer is not generally entitled to withhold any part of it (see Ethics Opinion 570 for a nice overview of the applicable rules, caselaw, and very limited exceptions; thanks to Mark Bennett for pointing me to it).


Lawyers that I’ve talked to about this issue have varying opinions about the right way to handle the dilemma. Some say you should refuse to hand over the offense report; others say you should breach the discovery agreement. I don’t think there’s a clearly correct answer–you’re damned if you do and damned if you don’t. But my inquiries made one thing quite clear–my fee agreement needed (and now has) a new provision that acknowledges the D.A.’s discovery policy and waives any conflicting claim that the client might otherwise have to materials obtained under it.

State Bar Fails to Recognize Importance of Work-Life Balance

Attorneys are notoriously bad at making work-life balance enough of a priority in their lives. This failing can lead to deeper issues  such as depression, alcoholism, and substance abuse, which can in turn compromise our ability to effectively represent our clients. This is not a news flash and is presumably the reason for the existence of the State Bar’s Lawyers’ Assistance Program.

So I was floored when the State Bar denied continuing legal education credit for an excellent program on this very topic that I participated in last month through the American Inns of Court. In the 20 years since Austin’s Inn was founded, this is the only time that it has been denied credit for one of its programs. The stated reason is that a program can’t just be about “personal growth” and must be something that will make the attorney a better attorney. Yet clients are almost always more effectively and more ethically served by sober, mentally healthy, well-balanced lawyers.

The team that put the program together is in the process of appealing the decision to deny credit and is optimistic about its chances. But it’s a sad testament to the State Bar’s priorities that the appeal is even necessary.


2/11/09 Update: After reviewing the petition appealing her decision to deny CLE credit, the State Bar’s MCLE Director changed her mind. The program was therefore approved for ethics credit.