After parsing the website of young buck Maverick Ray for, let’s say, excesses, Mark Bennett found a far more concrete, and disconcerting, excess to address. With all of his 8 months of experience, Maverick had taken on a retained death penalty case against one of the toughest prosecutors Texas can throw at a lawyer, raising the ghost of Joseph Rakofsky with one significant difference: this time, there was an opportunity to address the mistake of judgment before the harm was done.
“I am extremely troubled about Mr. Ray’s lack of knowledge and training in taking this case,” Weeks said. “(Capital murder) is the most difficult and integral criminal case we have in this state.”
Ray argued that it was his client’s Sixth Amendment right to choose his own counsel. Kraemer agreed with the defense, but stressed the importance of the case to Ray.
“I caution you to be careful,” Kraemer told Ray. “This is a serious case you are taking on.”
Bennett invited others to offer Maverick advice, and others did, both in the comments to his post and in posts of their own. Much of the advice was sound, with tone ranging from angry to the dutch uncle. Some included gratuitously dubious assertions in the process. Robb Fickman, in his second try, noted that the Disciplinary Rule 1.01 addresses the choice of a young lawyer, filled with, what?, passion, zeal, the thirst for glory, the love of money?, over-reaching his competency:
Rule 1.01 Competent and Diligent Representation
(a) A lawyer shall not accept or continue employment in a legal matter which the lawyer knows or should know is beyond the lawyer’s competence, unless:
(1) another lawyer who is competent to handle the matter is, with the prior informed consent of the client, associated in the matter; or
(2) the advice or assistance of the lawyer is reasonably required in an emergency and the lawyer limits the advice and assistance to that which is reasonably necessary in the circumstances.
It’s in there. Granted, there is no bright line test, but to the extent that being admitted to the profession of law carries with it the duty of adhering to our ethical proscriptions, it’s more than sufficiently covered. To the extent that lawyers will use deception on their websites, take any case that walks in the door at fees that no experienced lawyer would consider, there is no reason to believe that adherence to the Code of Professional Responsibility will be voluntarily honored. If you’re inclined to ignore the ethics of being a lawyer in one way, then why not in all ways? We don’t get to pick and choose which ethical demands bind us.
Whether bar discipline will follow a lack of allegiance to DR 1.01 isn’t known; it’s generally a product of someone making a complaint, and perhaps that will happen in this case. Sadly, as the avalanche of unethical conduct falls, the disciplinary committees get buried.
This is, perhaps, the reason a lawyer like Bennett will do what he did, which was perceived by some who lack a broader perspective on the importance of ethics to be harsh to a young lawyer. It is harsh. It’s also needed. While the disciplinary authorities may be impotent in dealing with problems, we lawyers have an independent duty to deal with our own. It may be unpleasant and lack “collegiality,” but that’s the price of striving to maintain an ethical profession.
So Bennett used one of the most powerful forces available to make the point, both for the sake of Maverick’s client and for the eyes of other young lawyers who might consider doing the same: Peer pressure. Naming and shaming. Fatherly advice, according to how you view it.
But as seems to be the norm with when others want to get in on the garden party, someone tossed in a skunk. After discussing the appropriate requirements for the state to assign counsel for the indigent in death cases comes the stink:
Why shouldn’t the state bar require similar standards for retained counsel in capital cases? And if they won’t, shouldn’t the Legislature step in to do so?
After all, the solution to all that ails us is another law, more regulation, state control. I waited a bit for Bennett to calmly and rationally explain why this was fundamentally wrong and dangerous. And I waited, as this was every bit as dangerously wrong a notion as the many others he felt compelled to call out. And I waited. But he didn’t. So I do so now.
Some people are convenient friends of the Constitution, loving those parts that meet with their approval, and not so kind to those parts that don’t. We see a lot of that in the northeast, where criminal defense lawyers adore the 4th and 5th Amendments, but don’t care too much for the Second. The hypocrisy of this position doesn’t seem to bother them much.
Number six in the Bill of Rights affords the defendant the right to counsel, which is held to mean the right to counsel of choice. While it’s not absolute (as the lawyer has to agree to the representation as well), it’s not the right to counsel of choice unless the state thinks otherwise.
If a defendant wishes to defend himself, even where the outcome might mean his death, a free country allows him to do so, provided he’s competent to make the choice. If he chooses to be defended by a kid with 12 minutes experience, foolish as that may be, the Constitution says it’s his right.
You think it’s a stupid right? You think the state knows better and should be empowered to limit that right? You think state regulation, a new law, is the solution to every problem a person can create? The Constitution disagrees. No matter how much you love regulation, the Constitution protects our freedom to be stupid, foolish and free.
There is an answer to impropriety by lawyers, and it’s the expressions captured in Bennett’s post and the comments and the other blog posts that admonish a young lawyer not to do harm to a defendant for his own purposes. Then again, it’s unfortunate in the piling on to that worthwhile point that no one bothered to notice, and remark, the sweet smell of ethics and sound concern for the welfare of a defendant facing death was fouled by the needless stench of an unconstitutional urge.
It’s very disappointing to me that with all the words spilled over this question of protecting one part of the Constitution, none could be spared for another. Very disappointing.