Ethical issues for attorneys in problem solving courts
Ethical Issues for Attorneys in Problem-Solving CourtsNADCP18th drug court training conferenceHon. Peggy Fulton HoraJudge of the Superior Court (Ret.) Sunday, july 17, 2011
Chief Justice Warren Burger:• “*Lawyers+ must be legal architects, engineers, builders, and from time to time, inventors as well. We have served, and must continue to see our role, as problem-solvers, harmonizers, and peacemakers, the healers – not the promoters – of conflict.”Daicoff, Susan, “Law as a Healing Profession: the ‘Comprehensive Law Movement’,” 6:1 Pepperdine Dispute Resolution LJ (2006)
State Bar of Michigan• When there is a defender office, one function of the office will be to explore and advocate for programs that improve the system and reduce recidivism.• The defense attorney is in a unique place to assist clients, communities and the system by becoming involved in the design, implementation and review of local programs suited to both repairing the harm and restoring the defendant to a productive, crime free life in society.
Revise the code of judicial ethics?“The wording of State codes of judicial ethics may appear to discourage or place little value on problem-solving and court and community collaboration.”Rottman, David and Pam Casey, “Therapeutic Jurisprucdence and the Emergence of Problem-SolvingCourts,” National Institute of Justice Journal (1999)
Duty to be informed about drug courts• Lawyers must educate themselves about drug court programs.• They cannot effectively advise their clients otherwise• “To ignore the need to learn about the drug court process is to ignore the evolution of the justice system”• “For lawyers to do otherwise is for them to become legal dinosaurs”• Smith v. State FL Ct.App. 4th Dist. 3/19/03
Prosecution Ethics Jack McCoy, DA, Law & Order• Protect and promote public safety• Cannot charge without PC (Model Rule 3.8)• Duty to dismiss weak case Jack McCoy, Law & Order
Net Widening Studies in AZ and CA found no evidence DAs were overcharging and, in fact, in DTCs, charges were being reduced to allow participationRiley, J. et al., “Just Cause or Just Because? Prosecution and Plea-Bargaining Resulting in Prison Sentences on Low-Level Drug Charges in California and Arizona,” (2005)
Prosecution Issues• Must adopt less punitive approach• Soft on crime („hug a thug‟)• Conviction required or evidence lost• Trained to put people in jail• Misperception of link between mental illness & violence• “Buy in” from prosecutor required for program success• Drug courts that expect the Prosecutor to attend all team meetings have more than 2 times greater cost savings
Defense Issues Yvonne Smith Segars, Esq., Public Defender of New Jersey (Ret.)
Brian Long time client Petty, non-violent crimes Substance abuse + MH issues Offer: CTS or DTC Can you predict his success? Ability to cope with program? Pre- or post-plea?
Questions for Defense Counsel in DTCs• Will the client spend more time in jail?• Attend court more frequently?• FTA more frequently?• Provide judge with personal information?• Examine the root cause of addictive behavior?• Focus on long-term rather than short-term goals?
Mary Ann Prostitution, petty theft, possession, multiple DWIs, vandalism Long-term health problems (Hep C and cirrhosis) Wants out today Doesn’t want to go to DTC “There’s nothing wrong with me”
Must guard against• Use Therapeutic Jurisprudential approaches “paternalistically” …when client „really needs psychological treatment or help‟Daicoff, supra.
• Does it diminishes the role of the attorney?• How is it different from explaining a plea agreement?• What is in the “best interests” of the client?• What is an “informed decision” re: representation (Model Rule 1.4)• Balance client needs with “early and prompt placement” in Key Component #3• Due Process implications
Darwin• In a search of D’s house, meth and paraphernalia were found. There is an arguable 4th Am. issue on a new theory you’ve been dying to use• File the motion or take DTC offer?
• Sacrifice potential for acquittal/ dismissal in questionable case or agree to conviction (in post- adjudication setting) & treatment?
Jennifer Current participant in DTC Partied on the w/e Tested positive for cocaine Swears it was a false positive caused by dental work
Acquiesce to sanctions or “zealously” advocate for client? Argue client’s position just in staffing or in court in client’s presence? Therapeutic or anti-therapeutic effects of arguments and location? “Whose team am I on anyway?” Quinn, Mae C., Whose Team Am I on Anyway? Musings of a Public Defender About Drug Treatment Court Practice, 26 N.Y.U. Rev. of L. & Soc. Change 37 (2000-2001).
Adversarial System Does it hinder tx by obstructing communication and encouraging denial? Is there an inherent conflict between a non- adversarial system in problem-solving courts and ethical duties of judges and lawyers?Simon, William H., Criminal Defenders and Community Justice: The Drug Court Example, 40 AM CRIM. L. REV. 1595, 1596 (2003)
• AND Model Rules of Professional Conduct, Rule 2.1 anticipates interdisciplinary behavior by lawyers.• “…*A+ lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors that may be relevant to the client’s situation.”
Rhonda Coming down from 3 day meth run Falling asleep while interviewing “It wasn’t my meth. I was holding for my boyfriend” “I don’t care what happens. Just leave me alone”
• Legal/cognitive competence of client to exercise options• Prone to relapse, AOD clients display denial, rationalization, resistance so who is making the decision - lawyer or client? (Model Rule 1.4, ABA Std Criminal Justice 4-5.1)
Ex parte Communication Ex parte communication must be specifically waived or asserted (Model Code Judicial Conduct, Canon 3B(7)) Who is present at staffing? Is it ok to attend team meetings w/out client? How many levels of hearsay in staffing? Are 42 CFR waivers executed for everyone present? What about HIPPA?
Defense attorneys support DTCs• In one survey, defense counsel was overwhelmingly satisfied with DTC• 97% reported they were glad to have DTCs for their clients and agreed their clients were not hurt by the process• 97% also felt they did not have to abandon their traditional adversarial duties• 90% reported higher job satisfaction than when practicing traditionallyIndigent Defense, Nov./Dec. 1997 at 8
Some Public Defenders originally resistant to DTCs are now some of their biggest supporters: James Hennings, Portland OR Mark Stephens, PD of TN: “a rewarding experience and helpful in dealing with drug problems among clients” Yvonne Smith Segars, PD of NJ founding member of NADCP Michael Judge, PD of CA, NADCP founding BoardClarke, Problem-Solving, op cit.
• “It is in both the State’s interest and our client’s interest to promote healing rather than hurting the offender.”Marin County Public Defender 2008
An ethics explosion• The U.S. Supreme Court took up 16 cases involving lawyering in 2010, amounting to 20 percent of its docket• State appellate courts coming down with lots of due process cases
References• Clarke, Cait, et al., “Making the Case: Therapeutic Jurisprudence and Problem Solving Practices Positively Impact Clients, the Justice Systems and Communities They Serve,” St. Thomas LR 17:3 (Spring 2005)• Clarke, Cait, et al., “’From Day One’: Who’s in Control as Problem Solving And Client-Centered Sentencing Take Center State?,” NYU Rev L & Soc Change 29:1 (2004)• Clarke, Cait, “Problem-solving Defenders in the Community: Expanding the Conceptual and Institutional Boundaries of Providing counsel to the Poor,” Georgetown J of L Ethics XIV:2 (Winter 2001)• Daicoff, Susan, “Law as a Healing Profession: the ‘Comprehensive Law Movement’,” 6:1 Pepperdine Dispute Resolution LJ (2006)