Too many lawyers–or not enough?

An op-ed in the New York Times by Clifford Winston of the Brookings Institution proposes doing away with the barriers to entry–namely, law school and the bar exam–to becoming a lawyer:

What if the barriers to entry were simply done away with?

Legal costs would be reduced because non-lawyers, who have not had to make a costly investment in a three-year legal education, would compete with lawyers, who in many states are the only options for basic services like drafting wills. Because they will have incurred much lower costs to enter the field — like taking an online course or attending a vocational school — and can operate as solo practitioners with minimal overhead, these non-lawyers would force prices to fall. The poor would benefit from the lower prices for non-criminal matters, and poor litigants, who might be unrepresented in criminal matters like hearings because they could not afford a lawyer and because of dwindling state legal aid, would be better off.

This is not a new idea, of course. But I thought Mr. Winston stated the case against lawyer regulation rather well.  Any thoughts in response, Mr. Gillette?

It's Alive!!

I was struck by a recent letter to the editor in the September 26, 2011 issue of The New Yorker.  In response to Jeffrey Toobin's profile of Virginia and Clarence Thomas, Albion M. Urdank of Los Angeles wrote in to criticize Thomas's originalist method of interpreting the Constitution:

In determining how many representatives Southern states might send to Congress, the [Constitution] provides that a black person, although disenfranchised, counts as three-fifths of a person.  To think that we are required to pay deference to the founders' views on this subject is absurd.  The Thirteenth Amendment, which abolished slavery, represents an updating of the Constitution in the light of history and experience. [Not to mention war. -- Mr. Torvik]  Amendments don't just complicate originalism; they refute it by establishing that the Constitution is a living document.

Perhaps you can explain this to me, Mr. Gillette, because I'm befuddled by it.  The idea of a "living Constitution," as I understand it, is that we can use interpretive methods to proactively update the meaning of the constitution to keep up with the times without the need for formal amendments.  I completely fail to understand how the 13th, 14th, and 15th Amendments "refute" originalism.  Indeed, if the Constitution were really a "living document," surely those Amendments would have been unnecessary, as the Constitution would have simply "grown" to leave slavery and the three-fifths clause behind after the searing national tragedy that was the Civil War.

Right?

Indiana attorneys should still not beat people up.

Back in December, we did a post on Olubunmi Okanlami, the Indiana attorney who was arrested and accused of beating up her boyfriend. Among the oddities of Ms. Okanlami's arrest was that she was wearing two bras at the time of her arrest and was carrying a switchblade in between the two bras.

Recently, Ms. Okanlami was found guilty of two felonies related to the incident (Indiana's online court records don't indicate whether Ms. Okanlami's case was actually tried or whether she entered into a plea agreement. Which ever the case, because Ms. Okanlami of the conviction, Ms. Okanlami will suspended from the practice of law effective in late October. The suspension will last until the Indiana Supreme Court decides on what further discipline, if any, is appropriate for Ms. Okanlami.

Under Rule 23(26) of the Indiana Rules for Admission to the Bar and Discipline of Attorneys, Ms. Okanlami must decline to undertake any new legal matters, notify her clients via certified mail of the suspension, find a new attorney for her clients during the suspension, and file an affidavit saying that she is complying with Rule 23(26). It cannot be any fun to have to do that. On the other hand I suppose her boyfriend didn't enjoy getting beaten up either.

Given the outcome, I think readers are well-advised to follow the advice in our initial post and not beat up their significant others.

Sometimes there are unanswered questions at oral argument.

Several media outlets are reporting about a death penalty case that was heard by the Supreme Court on Tuesday. The case, Maples v. Thomas, features some very odd facts. The coverage at Slate, Huffington Post, or the New York Times provides the pertinent background on the oral argument. One can also read the transcript of the argument here.

In reading the coverage, two questions occurred to me that are not directly about the merits of the appeal. First, however, some background.

Cory Maples was convicted in Alabama state court of two murders. Mr. Maples’s guilt is not in dispute. His court-appointed lawyers, who had apparently never tried a murder case before, failed to present mitigating evidence during the penalty phase of the trial and Mr. Maples was sentenced to death. Mr. Maples lost the appeals of his conviction.

Mr. Maples then began post-conviction proceedings claiming that he had received ineffective assistance of counsel during his trial. A large New York law firm, Sullivan & Cromwell, took his case pro bono and assigned it to two associate attorneys. The firm also, as was required by Alabama rules, associated itself with a local Alabama attorney for the case. The local attorney did not do anything on the file except move the admission of the New York attorneys.

For some reason, it took eighteen months for the district court to deny relief on the ineffective assistance of counsel claim. The court mailed the decision to each of Mr. Maples’s attorneys. Mr. Maples’s local counsel, who had not done anything on the case, did not provide the decision to Mr. Maples. This is not odd. How Sullivan & Cromwell treated the decision is odd. By the time the decision was issued, both of the Sullivan & Cromwell attorneys had left the firm. The lawyers had not informed the Alabama court they were leaving the case. Since neither lawyer worked at the firm, the mailroom at the firm, without opening the envelope, stamped the envelope “return to sender” and sent it back to the Alabama court.

Unsurprisingly under the circumstances, Mr. Maples missed the deadline to appeal the decision. Then, the second odd thing happened; the prosecutor in the case mailed the now-unappealable decision directly to Mr. Maples. Once Mr. Maples realized what had happened he tried to appeal the decision or excuse the failure to miss the deadline. The Supreme Court decision will decide whether Mr. Maples can get his ineffective assistance of counsel claim heard.

As to the first oddity, I do not understand how the Sullivan & Cromwell mailroom sent the decision back to Alabama unopened with a “return to sender” stamp on it. That makes absolutely no sense. How can it be that mail coming from a court is not opened by someone at the law firm to see what the court is writing about? The Eleventh Circuit's opinion on the case notes that Sullivan & Cromwell had internally assigned attorneys to take responsibility for the case and that under firm policy the order should have been forwarded to the new attorneys. The opinion however, only states that a “clerical error” cased the order to be returned, unopened, to the Alabama court. While I understand that mistakes happen, I don’t understand how this particular mistake could have happened. Why would a mailroom not open a letter from a court? Mr. Torvik, who—unlike me—has worked at a large law firm, may have some ideas on how this would happen. Or he may not. Even if this were not a death penalty case, not opening the envelope is a gigantic mistake.

The second oddity, the prosecutor mailing the decision to Mr. Maples, caught the attention of Chief Justice Roberts. On page 34 of the transcript Chief Justice Roberts asks “Why did he [the prosecutor] do it? Why did he do it, then? . . . What was the point of it?” After all, if Mr. Maples was represented, as Alabama is claiming to the Supreme Court, then the prosecutor’s letter violates Rule 4.2 of the Alabama Rules of Professional Conduct. Rule 4.2 prevents a lawyer from contacting a represented party. At the oral argument, Justice Scalia called sending the decision to Mr. Maples an “extraneous, volunteered statement to Maples instead of to his lawyers,” and said “I don't -- I don't know what that proves.”

However, the Eleventh Circuit’s opinion suggests what that proves. The Eleventh Circuit said that the prosecutor was providing the decision to inform Mr. Maples that, although his deadline to appeal had passed, Mr. Maples had “four weeks to file a federal habeas petition. [The prosecutor] gave Maples the address to file a federal habeas petition and informed him how to seek new counsel if he wished.” (Opinion at 4-5) (emphasis mine). That is, despite what Alabama is now claiming to the Supreme Court, the prosecutor didn’t think that Mr. Maples was being represented by anyone. It would have been nice if Alabama’s Solicitor General could have acknowledged this at oral argument.

On page 41 of the transcript, Justice Alito asked Alabama’s Solicitor General this question:

You can see from these questions that the arguments that you're making in this capital case, which is sui generis, are pushing the Court to consider rules that would have far-reaching effect, such as a rule that places upon a clerk of the court a constitutional obligation to serve counsel with important documents in the case similar to the constitutional obligation to serve initial process in the case. And the question that I would like to ask is whether this -- the -- whether you as the Solicitor General or the Attorney General of Alabama have an obligation to push this matter in this way. This is a case where -- as I said, it's a capital case, as we all recognize Mr. Maples has lost his right to appeal through no fault of his own, through a series of very unusual and unfortunate circumstances. Now, when his attorneys moved to file an out-of-time appeal, why wouldn't you just consent to that? If he did not receive an effective assistance of counsel at trial, why not get a decision on the merits of that? Why push this -- this technical argument?

(emphasis mine.) Alabama's Solicitor General doesn’t really answer the question. However, I think the reason for this is found in the Supreme Court’s opinion in Bowles v. Russell. That was the case where a federal habeas petitioner missed a deadline for filing an appeal because the judge who denied the petition told the petitioner the wrong deadline for appealing. The Supreme Court, held that by missing the deadline the petitioner lost his right to appeal even though it was the court’s fault that the deadline was missed. After all, if a hyper-technical argument can win one Supreme Court case, it can certainly carry the day here, right?