13 October 2012

Zealous Representation

An attorney has both rules of professional conduct and ethical mandates which require among other things a zealous representation of one's clients. In my case, my clients are criminal defendants. The majority of my clients have one or more of the following characteristics: unemployed, unemployable, below average IQ, repeat offenders, regular users of prescription, illegal, or alcoholic substances, no drive's license, indigent, producer of multiple offspring by multiple partners, mentally ill, and extremely ignorant. When representing defendants with one or more of these characteristics I sometimes wonder whether I am an attorney or social worker or are they one and the same. The question occurs whether a zealous representation is equivalent to what is in their best interest. In an age of criminal overkill many if not most of my clients will be in and out of jail throughout their lives. The clients of which I speak are unable to function in a manner that is satisfactory to the powers that be. The effort to ameliorate this is unrelenting. We have established counseling, therapy, half-way houses, probation, parole all in an effort to morph criminal defendants into productive citizens. This, of course, is absurd. Its not going to happen which, in a round-about way, brings me back to the title of this piece--zealous representation. Zealous representation as promulgated by our ethical rules can only make sense if you care about your client and attempt to do what is the client's best interest. As an example, I represent numerous people who are in jail on probation violations. Usually these folk are nuisances, they are incapable of doing what they are told, and they simply can't cope. Many an attorney has agreed to a plea offer of probation for his client where the client has no more of a chance of successfully completing probation than becoming an astronaut. Probation officers don't know what to do with them and so they ask the court to impose the original sentence and send the defendant back to jail or prison. The consequence of this is that the defendant has had a lengthy and bumpy relationship with his probation officer and then goes to jail or prison anyway. My view is: let's just do the time now and get it over with. Sooner or later the defendant will be doing the time and in the meanwhile he's got someone telling him where to live, to get a job, to become a teetotaler, to transform himself into a citizen just like the probation officer purports to be. It ain't going to happen. In the example that I have illustrated, the defendant will want probation because then he can get it over with, "get his life back on track", and most importantly, be released from jail. Jail may actually be good for some defendants, but not in the sense that most of us think of it. While in jail the defendant is dried out, he has decent food to eat, has a bed to sleep in, and can visit with his friends or make new acquaintances who he will benefit from in the future. All positives. In extreme cases, the only thing keeping some people alive is a periodic visit to lockup. In the end, if you care about your clients, you sometimes must do what is best for them even if they reject the notion. Whether this is considered zealous representation remains, in my mind, undecided.