Ken Lammers makes an important point at CrimLaw about the “rules” for prosecutors that we invariably point to when we want to argue about whether they are doing the right or wrong thing. Who is it that is coming up with these rules?
I’ve only glanced at these extra ABA “standards”, and do not believe they have been adopted in Virginia. I’m rather suspicious of the ABA’s claim that
Really? Who? I’ve known a whole passel of actually practicing prosecutors and defense attorneys and, as best I remember, maybe two three were members of the ABA (generously, perhaps 1/2%). And when I say “member”, I mean someone who pays dues and gets the magazine, not someone who goes to national meetings and spends time composing tomes as to what lawyers should be doing. How could an actual, practicing, in-court prosecutor or defense attorney have time to partake in the production of something like that?
I’m not a member of the ABA. I have nothing particularly against the ABA, but it just doesn’t have any relevance to my practice. I’m sure there are plenty of big-time, important lawyers involved, but none that I hang out with.
Bar associations like the ABA and the New York State Bar Association don’t really have much to do with the practice of criminal law in the trenches. New lawyers tend to join straight out of law school because a lot of these groups offer free membership for the first year, hoping to suck them in a lifers. They get a certificate to hang on the wall, and potential clients love to see lots of certificates on the wall that attest to the greatness of the law. I joined back then too.
But when the bill for membership came due, I asked myself what I got in exchange. The answer was nothing.
As for the people who become active in these associations, I can’t think of anybody who matters in my line of work. Some of the Biglaw guys, because being a muckety-muck in a bar association is the sort of thing that sells well in Biglaw, but does nothing for lawyers in the trenches.
When you join these bar association committees, you get to go to a lot of meetings. There are a lot of lawyers at these meetings. Lawyers like to talk. A lot. And they’re all brilliant. Ask them, they’ll tell you. So they talk at each other, and then talk some more. Pontificating about everything, then using 6 or 7 examples to explain even the most obvious point under the assumption that all the other lawyers in the room are too friggin stupid to understand. And to hear their own voice and demonstrate their genius to the room.
So the ABA comes up with rules. Rules for Ken. Rules for me. The rules don’t actually mean anything, unless adopted by some entity that matters, or used for their precatory force in an argument to show that there are rules and somebody broke them. But as Ken rightfully asks, who comes up with these rules? Beats me. Obviously, people with a lot of time on their hands and an inclination to stick their nose into areas of practice foreign to their own experience. Kinda like the ethics lawprofs who love to get quoted in the paper, though they never have to live with their own opinions.
I might consider calling for the ABA to put together a meeting of real criminal defense lawyers and real prosecutors, those of us who actually spend our days sitting on benches waiting for our cases to be called, to come up with a set of real rules for what we are expected to do every day. Like “don’t withhold Brady,” for example. Ken likes “do justice.” Me too, though we might differ on what exactly that means.
But I won’t make that call. Because if the ABA called such a meeting, no one would show up. Because we’re busy in the trenches doing our job. Leaving it to some elves in a back room somewhere to come up with a bunch of rules about what we’re supposed to do.
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How does the ABA come up with this stuff? Ever hear of “death by committee?”
I’ve never worked for the ABA directly, but I’ve worked with them quite a bit. It’s a large organization but basically it works like this: each entity (division, section, standing committee, etc.) has ABA staff who does the basic coordinating, but is mostly run by its members themselves.
The members are all out in the field in that they are attorneys, judges, etc. (I believe the only entity for which one does not have to be an attorney is the dispute resolution section.)
The committees come up with standards and other documents published by their entity. (The ABA also has a publications section, which is staffed mostly by the ABA, but this is more for books, journal, and the like.)
The standards are discussed and adopted (or amended, or none of the above) at the annual meeting.
What are they based on? That’s a better question. It depends on the committee. National experts might be consulted and offer suggestions, comments, or other help (for free). There may be extra meetings outside the annual meeting. The jury principles were formulated in that way (refer to the Jur-E Bulletin ca. October 2004 for more.)
Ideally, the committees are a mix of practitioners, academics, and others. The entities with which I’ve been involved usually do have a fair number of both.
Some types of standards are difficult to do nationally (even tho people are always calling for national standards on this that & the other). Local legal culture and rules, for example, have a huge effect on how long a case takes. So formulating national time standards is almost futile.
Other types of standards are easier to think about and implement nationally. Issues such as avoiding conflicts of interest or maintaining the core values of mediation are easier to capture in a way that makes sense across jurisdictions.
As for not being able to make it to meetings — it’s true, all the meetings cost money. I would not have gone to them had they not been part of my job (and even then, I had to have my time covered by some project director who thought it was a good idea for me to be there). It would be great if the ABA entities could invite local practitioners (some do) to meetings. Also, it’s a good idea to befriend someone on one if you have an interest in the outcome.
You and Ken make some good points, Scott, although your populist humility seems a bit over-done. I have seen ABA and NYSBA committees taken over by lawyers with a particular agenda (activists and re-activists) — often unrepresentative of either the profession or the law, and mostly interested in protecting their turf or ideology. That worries me more than whether the members are in-the-trenches.
I do want to add, also, that rules-drafting committees should NOT be comprised solely of lawyers practicing in the subject area of law. Obviously, the experts in the field need to be well-represented (so that reality in the trenches is kept in mind), but the perspectives of others who are not in the fray and who are looking at the issues from the broader point of view of society, the justice system, clients, the entire profession, etc., are necessary to assure the best results.
Ken has been parsing the ABA rules over at CrimLaw, and has made a very strong case about what happens when people when people get involved to represent that “broader point of view.” While his interest is the prosecutorial function, it begs the question of whether there was anyone in the room with their head atop their shoulders when these rules were conceived.
But I don’t know who these people are who are manning these committees. They aren’t the people I know who are working for a living. Maybe they are the people who used to run for recording secratary of the student government in high school because they want to be official people on committees? Beats me. The NYSBA is a little different than the ABA (at least you can get some decent insurance deals out of them), so your inclusion when I was speaking about the ABA changes things a bit.
I still don’t know more than 3 people who care if the ABA exists or not, and I certainly don’t know anyone who would waste 5 minutes being on one of their committees.
Ken, In case some of your readers do not know, the ABA Model Rules are fairly mportant, having been adopted by 48 of “the 50 states, plus D.C., and being the basis of the ethics portion of the MultiState section of the Bar Exam. Only NY and California have not adopted them, and according to this article from Law.com, NYSBA voted in November 2007 to adopt new rules based largely on the Model Rules. See
http://www.law.com/jsp/article.jsp?id=1194343448699
It seems to me that if the Trench Dwellers think the Rules need improvement, they should bite the bullet and start participating. Also, I bet if you looked to see who were the main actors for any portion of the Model Rules that deals with a specific branch of law, you would find that many (maybe most and possibly all) of the participants actively practiced in the relevant field of law.
This portion of the article is rather illuminating:
“Kathryn Grant Madigan, president of the Bar group and a supporter of the model code, recalled “great resistance” 22 years ago from small-firm and solo practitioners who were accustomed to the Code of Professional Responsibility and were reluctant to learn a new body of ethics rules. The current code went into effect Jan. 1, 1970.
“But Madigan, of Levene Gouldin in Binghamton, said that changed as time went on. The introduction of the multistate phase of the Bar examination in 1979 has required prospective attorneys in New York to become familiar with the ABA Model Rules.
“According to Madigan, about two-thirds of the current practicing Bar in New York has been admitted under the multistate exam.
“Since the mid-1980s, all states have adopted the ABA model rules outright or realigned their rules to largely match ABA guidelines. The only exceptions other than New York — California and Maine — are moving toward adoption of ABA-based systems, Krane said.”
I should note that the process I was trying to describe was the adoption of the less-important standards (they are usually considered aspirational, or not at all, but sometimes as with state court time standards they are adopted in some form), not the more-important Model Rules. But they may be similar processes, I’m not sure.
I’ve not actually been dealing with the Rules. I know they’ve come close to universal acceptance. What I am writing about are “Criminal Justice Section Standards: Prosecution Function” which the comments to the Model Rules claimed had gained acceptance in “many jurisdictions.”
BTW: The Criminal Justice Standards Committee’s webpage is out of date, but the meetings it has had for the last year have been in DC, DC, Denver, Florida, and New York. Even if I wasn’t tied to a courtroom on most days I am an Assistant Commonwealth Attorney and don’t make enough money to travel like that. How am I supposed to “bite the bullet and start participating?”
Don’t you public emplyees get
to suck on the public teetthe taxpayer to foot the bill for involvement in such professional matters?Um . . . I think you have me confused with an AUSA.