An old man gripes about inexperienced lawyers mucking up his courtroom with their oozing inexperience:

Not for the first time, I wondered why it was then that any kid out of law school or any office-practice lawyer could wander into my courtroom and take a federal felony case to trial or plea as counsel for the defendant if he or she was retained to do so by the defendant. Not to put too fine a point on it, that’s [Ed. Note: Trigger warning, ableist slur ahead] crazy. Nevertheless, virtually every day we stand by and watch inexperienced lawyers muddle about representing people charged with federal felonies merely because they passed the Nebraska Bar exam and someone was dumb enough to hire them.

It’s not like anybody named Rakofsky would take a murder case, right?

I propose that no lawyer be permitted to practice federal criminal defense law until he or she has been certified as sufficiently experienced to do so.

And I particularly mean that such a prohibition should be applied aggressively to retained counsel. For our federal public defenders, and our Criminal Justice Act panel lawyers, we already have mechanisms in place to assure basic competency. . . . A similar screening process should be applied to retained criminal defense lawyers.

Old men love to kick hornets’ nests to see what trouble they can cause.  There are, of course, all the usual reasons to call out this lunacy. The Sixth Amendment right to counsel of choice is obviously foremost among the roadblocks.

The choice belongs to the defendant, stupid though he may be, to select his representative, his advocate.  It may be because of a special degree of trust reposed in an individual lawyer. Or it could be something really foolish, like his name being the same as the dark web, and that didn’t turn out too badly.

The problem here, of course, is that defendants often have no clue who to retain, confusing likeability with competency, or even worse, believing in the absurd fantasy the retained counsel is invariably better than indigent counsel, and lacking the funds to get a good lawyer, picks the first one in the yellow pages.

Any lawyer with experience in federal criminal trials knows the feeling when a lawyer steps into the well and immediately reveals his inexperience by using all the wrong words, raising all the wrong motions, uttering all the silliness that is common in local misdemeanor cases but unheard of in the big leagues.  Everyone in the room simultaneously cringes when the lawyer informs the judge that he intends to move to dismiss the indictment as insufficient.  Oh, the pain.

But that, boys and girls, is the nature of our criminal justice system.  Before delving further into the cold marble of federal court, let’s not forget that the 30 year sentence meted out in state court is just as long as the one imposed by an Article III judge.  Federal courts may be the big leagues from the lawyer perspective (and clearly the only courts lawprofs believe exist), but even those nasty, dirty, ugly little state courts do their damage.  Are 30 years of a state defendant’s life insignificant?

We send kids to school for three years, putting them in the care of professors who are engaged in such weighty matters as whether the Ministry of Magic provides adequate due process, then have them cram a course to learn everything they needed to be taught in a few weeks to pass a test.  Pass and they are now deemed competent to hold people’s lives in their hands. For all purposes.  We may call ourselves criminal defense lawyers, but our ticket just says “lawyer.”

What would an old man demand of these new lawyers?

We already have mandatory Continuing Legal Education, touted as the way to make young lawyers, and keep old lawyers, sharp.  So they give credit for such valuable courses as The Ten Coolest iPad Tricks, and ethics credit by guys who sell blogging for a living.  Isn’t that good enough to equip baby lawyers to try federal cases, old man?

Speaking of ethics, we already have rules that prohibit a lawyer from accepting the responsibility for the representation of a client when he’s not competent to do so. Hell, it’s so important that it’s Model Rule 1.1.

Rule 1.1 Competence

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

When is the last time the old man sent a lawyer to the disciplinary committee for violating this rule?  When is the last time any judge did so? Nor have I, so I’m no one to point fingers.

But then, doesn’t this mean that the same lawyers who appear before you without the requisite level of skill aren’t merely incompetent, but unethical as well?  Then again, since we all know the legal standard for ineffective assistance of counsel is satisfied by occasional breathing, it’s hard to be certain when someone has violated Rule 1.1.

A few years back, Dan Hull and I wrote a brilliant article about mentoring for the ABA Journal, with its blessing. It never saw the light of day.  Ipads bring eyeballs, and competence brings yawns.  There is no future in boring the hell out of lawyers with stuff like skills, hard work and ethics.  The future of law is shiny, and there is nothing shiny about competence.

Is the old man right?  Are inexperienced lawyers incompetent to be entrusted with the lives of others, whether in federal court or, frankly, any court where a person’s life is at risk?  Of course he is.  The solution, however, is harder to find than just limiting admission to federal court to those who have a set number of years behind them.  After all, we all know experienced lawyers who suck just as badly as young ones.  And as the saying goes, an old fool is worse than a young fool.

The old man, Senior Nebraska District Court Judge Richard Kopf, is right to complain, but needs to remember that complex problems are rarely fixed by simple solutions.  The system creating lawyers is replete with gaps that give rise to harm to the public, from the day a baby lawyer is admitted to practice to the day an old lawyer hangs up his shingle.  We don’t do much to assure that we fulfill the theoretical promise our profession makes to the public, and we don’t do much to correct it when we fail.

We should do far better. We must if we are to deserve our place amongst the professions.  But this requires ground up acceptance of the principle set forth in Rule 1.1, where the rights embodied in the 6th can be honored while lawyers take it upon themselves to be as good, as worthy, as clients deserve in every court, every practice area, everything we do.

Then again, the only experience required to be an Article III judge is a warm and loving relationship with a senator.  If it was all about trial experience, even I might be wearing a robe. Nah.