Agency and Equity: Why do we blame clients for their lawyers' mistakes?

Michigan Law Review

Volumn 110, Issue 6, 2012, Pages 875-886

  Liptak, Adam ^a  

^a NONE

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EID: 84859519515     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Editorial

References (94)

1. See Robert M. Cover & T. Alexander Aleinikoff, Dialectical Federalism: Habeas Corpus and the Court, 86 Yale L.J. 1035, 1085 (1977) (noting that "the moral bases of attribution in the counsel/client relationship" are "deeply intertwined with the contradictions in the attempt to preserve the defendant's autonomy while protecting the adversary process").
2. See Restatement (Third) of Agency § 1.01 (2006) ("Agency is the fiduciary relationship that arises when one person (a 'principal') manifests assent to another person (an 'agent') that the agent shall act on the principal's behalf and subject to the principal's control, and the agent manifests assent or otherwise consents so to act. ").
3. H. Richard Uviller, Calling the Shots: The Allocation of Choice Between the Accused and Counsel in the Defense of a Criminal Case, 52 Rutgers L. Rev. 719, 755-56 (2000) ("Retained counsel may state the terms of their engagement in contractual terms. The private lawyer may always offer a prospective client the option to shop elsewhere if the proposed terms are unsatisfactory. Institutional and assigned counsel do not have the luxury of that clause. ").
4. In Strickland v. Washington, Justice Marshall wrote the following: It is an unfortunate but undeniable fact that a person of means, by selecting a lawyer and paying him enough to ensure he prepares thoroughly, usually can obtain better representation than that available to an indigent defendant, who must rely on appointed counsel, who, in turn, has limited time and resources to devote to a given case. 466 U.S. 668, 708 (1984) (Marshall, J., dissenting).
5. In an earlier case, Jones v. Barnes, Justice Brennan stated a similar proposition: [W]ith regard to issues involving the allocation of authority between lawyer and client, courts may well take account of paying clients' ability to specify at the outset of their relationship with their attorneys what degree of control they wish to exercise, and to avoid attorneys unwilling to accept client direction. 463 U.S. 745, 757 n.2 (1983) (Brennan, J., dissenting)
6. In an earlier case, Jones v. Barnes, Justice Brennan stated a similar proposition: [W]ith regard to issues involving the allocation of authority between lawyer and client, courts may well take account of paying clients' ability to specify at the outset of their relationship with their attorneys what degree of control they wish to exercise, and to avoid attorneys unwilling to accept client direction. 463 U.S. 761 (1983) ("It is no secret that indigent clients often mistrust the lawyers appointed to represent them. ").
7. Eve Brensike Primus, A Crisis in Federal Habeas Law, 110 Mich. L. Rev. ##, ## (2012) (reviewing Nancy J. King & Joseph L. Hoffman, Habeas for the Twenty-First Century (2011).
8. Gideon v. Wainwright, 372 U.S. 335 (1963).
9. 370 U.S. 626 (1962).
10. Link, 370 U.S. at 628-29.
11. Link, 370 U.S. 633.
12. Link, 370 U.S. 633-34 (quoting Smith v. Ayer, 101 U.S. 320, 326 (1880).
13. Link, 370 U.S. 645-46 (Black, J., dissenting).
14. Link, 370 U.S. 643.
15. Link, 370 U.S. 648.
16. 372 U.S. 335 (1963).
17. See, e.g., Coleman v. Thompson, 501 U.S. 722, 753 (1991) (allowing execution of a petitioner whose lawyer filed a late appeal on the grounds that, because the lawyer is the petitioner's agent, the petitioner must bear the risk of the lawyer's error).
18. For example, consider this exchange between Justice Ruth Bader Ginsburg and Scott D. Makar, the Florida Solicitor General, at a 2010 Supreme Court oral argument over whether a defendant whose appointed lawyer missed a filing deadline should be executed. JUSTICE GINSBURG: The State has no responsibility even though it made this appointment? So you agree there's no difference, whether it was paid counsel, somebody that the... defendant picked to represent him, and someone that he just had to take because it's what the State gave him? MR. MAKAR: Exactly. Transcript of Oral Argument at 35, Holland v. Florida, 130 S. Ct. 2549 (2010) (No. 09-5327) [hereinafter Holland Transcript].
19. Section 1983 permits suits against state officials for their violations of private parties' constitutional rights. 42 U.S.C. § 1983 (2006).
20. Dunphy v. McKee, 134 F.3d 1297, 1298 (7th Cir. 1998).
21. Dunphy v. McKee, 134 F.3d 1297, 1298 (7th Cir. 1998).
22. Dunphy v. McKee, 134 F.3d 1297, 1298 (7th Cir. 1998).
23. Dunphy v. McKee, 134 F.3d 1298. (7th Cir. 1998).
24. Dunphy v. McKee, 134 F.3d 1300. (7th Cir. 1998).
25. Dunphy v. McKee, 134 F.3d 1300-01. (7th Cir. 1998).
26. Dunphy v. McKee, 134 F.3d 1301. (7th Cir. 1998).
27. Dunphy v. McKee, 134 F.3d 1302. (7th Cir. 1998).
28. Dunphy v. McKee, 134 F.3d 1301. (7th Cir. 1998).
29. Dunphy v. McKee, 134 F.3d 1301. (7th Cir. 1998).
30. Ball v. City of Chicago, 2 F.3d 752, 756 (7th Cir. 1993) (internal quotation marks omitted).
31. The unhappy client of a criminal defense lawyer who has performed badly certainly has little recourse. Malpractice actions arising from criminal cases are all but unknown and face very high barriers. Bruce A. Green, Criminal Neglect: Indigent Defense from a Legal Ethics Perspective, 52 Emory L.J. 1169, 1195 (2003).
32. Disciplinary proceedings are also vanishingly rare. See Dennis E. Curtis & Judith Resnik, Grieving Criminal Defense Lawyers, 70 Fordham L. Rev. 1615 (2002).
33. Dismissal for failure to prosecute is not quite the same thing as enforcement of limitations periods like the ones imposed by the Antiterrorism and Effective Death Penalty Act of 1996 § 101, 28 U.S.C. § 2244(d) (2006) [hereinafter AEDPA]. See Anne R. Traum, Last Best Chance for the Great Writ: Equitable Tolling and Federal Habeas Corpus, 68 Md. L. Rev. 545, 553 (2009). But the general principle is identical. What sensible client would want his lawyer to blow a deadline? What legal system that is meant to achieve a just result would have a case turn on such a lawyer's conduct?
34. 130 S. Ct. 2549 (2010).
35. 132 S. Ct. 912 (2012).
36. This criticism is not new. See Vivian O. Berger, The Supreme Court and Defense Counsel: Old Roads, New Paths-A Dead End?, 86 Colum. L. Rev. 9, 13 (1986) ("[T]he Court had painted itself into a doctrinal corner, which left it little room to maneuver among the growing litter of precedents according a linchpin role to the lawyer.... ")
37. Vivian O. Berger, The Supreme Court and Defense Counsel: Old Roads, New Paths-A Dead End?, 86 Colum. L. Rev. 115 (1986) at ("In short, the Court's visions of the right to counsel and the role of counsel are incoherent, or downright cynical. ").
38. See Strickland v. Washington, 466 U.S. 668 (1984).
39. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987)
40. ("We have never held that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions. " (citing Johnson v. Avery, 393 U.S. 483, 488 (1969).
41. See Aaron G. McCollough, For Whom the Court Tolls: Equitable Tolling of the AEDPA Statute of Limitations in Capital Habeas Cases, 62 Wash. & Lee L. Rev. 365, 396 (2005) ("By providing a meaningless grant of counsel, courts effectively dictate that defendants must file their federal habeas petitions pro se in order to positively ensure timely filing. And if the petitioner is obligated to personally comply with technical requirements of the AEDPA, the statutory guarantee of counsel is meaningless. ").
42. Holland v. Florida, 130 S. Ct. 2549, 2564-65 (2010).
43. Holland v. Florida, 130 S. Ct. 2554-60 (2010).
44. Adam Liptak, Justices Are Long on Words but Short on Guidance, N.Y. Times, Nov. 18, 2010, at A1, available at http://www.nytimes.com/2010/11/18/us/18rulings.html? pagewanted=all.
45. Holland, 130 S. Ct. at 2555 (internal quotation marks omitted).
46. Holland, 130 S. Ct. at 2556.
47. Holland, 130 S. Ct. at 2568 (Alito, J., concurring).
48. Holland, 130 S. Ct. at 2556-57 (majority opinion).
49. Holland, 130 S. Ct. at 2557 (noting that Holland correctly informed his attorney that the AEDPA's statute of limitations is not tolled pending review of a petition for certiorari from a judgment denying postconviction review at the state level).
50. Holland, 130 S. Ct. at 2556-59.
51. Holland, 130 S. Ct. at 2556-57.
52. Holland, 130 S. Ct. at 2558.
53. Holland, 130 S. Ct. at 2558.
54. Holland, 130 S. Ct. at 2563.
55. The Eleventh Circuit had held that even a lawyer's "grossly negligent" conduct can never warrant tolling of a deadline unless there is also "bad faith, dishonesty, divided loyalty, mental impairment or so forth on the lawyer's part.... " Holland v. Florida, 539 F.3d 1334, 1339 (11th Cir. 2008), cert. granted, 130 S. Ct. 398 (2009), rev'd, 130 S. Ct. 2549 (2010).
56. Holland, 130 S. Ct. at 2565.
57. Holland, 130 S. Ct. at 2566 (Alito, J., concurring).
58. Holland, 130 S. Ct. at 2575 (Scalia, J., dissenting) (criticizing majority's failure "to articulate an intelligible rule").
59. Holland, 130 S. Ct. at 2566 (Alito, J., concurring).
60. Holland, 130 S. Ct. at 2566 (Alito, J., concurring).
61. Holland, 130 S. Ct. at 2567.
62. Holland, 130 S. Ct. at 2568.
63. Holland, 130 S. Ct. at 2568.
64. Holland, 130 S. Ct. at 2568.
65. Holland v. Florida, 130 S. Ct. 7 (2010)
66. Holland v. Florida, 130 S. Ct. 7 (2010)
67. Holland v. Florida, 130 S. Ct. 19 (2010)
68. Holland v. Florida, 130 S. Ct. 19 (2010)
69. See Marni von Wilpert, Comment, Holland v. Florida: A Prisoner's Last Chance, Attorney Error, and the Antiterrorism and Effective Death Penalty Act's One-Year Statute of Limitations Period for Federal Habeas Corpus Review, 79 Fordham L. Rev. 1429, 1467 (2010).
70. 549 U.S. 327, 336-37 (2007).
71. Lawrence, 549 U.S. at 337.
72. 132 S. Ct. 912, 923-24, 926-27 (2012).
73. Ex parte Maples, 885 So. 2d 845, 846 (Ala. Crim. App. 2004).
74. Ex parte Maples, 885 So. 2d 847.
75. Ex parte Maples, 885 So. 2d 847. (internal quotation marks omitted).
76. Ex parte Maples, 885 So. 2d 847. (internal quotation marks omitted).
77. Ex parte Maples, 885 So. 2d 846. (internal quotation marks omitted).
78. Ex parte Maples, 885 So. 2d 846. (internal quotation marks omitted).
79. E.g., Brief for Petitioner at 3, 20, 34, Maples v. Thomas, 132 S. Ct. 912 (2012) (No. 10-63).
80. Brief of Amica Curiae Deborah A. DeMott in Support of Petitioner at 6, Maples, 132 S. Ct. 912 (No. 10-63).
81. Brief of Amica Curiae Deborah A. DeMott in Support of Petitioner at 6, Maples, 132 S. Ct. 12 (No. 10-63).
82. Alabama is the only state that does not provide all poor death row inmates with lawyers to challenge their convictions and sentences. In an appeals court brief in 2006, the state explained that it relied on firms like Sullivan & Cromwell to handle such cases. "The overwhelming majority of Alabama death-row inmates enjoy the assistance of qualified (and often über-qualified) counsel in collaterally attacking their convictions and sentences, " the state's lawyers wrote, which is another way of saying that lawyers from prominent firms donate their services to fill the gap left by the state. Adam Liptak, In Alabama, Execution Without Representation, N.Y. Times, Mar. 26, 2007, at A12 (quoting Brief of Defendants-Appellees at 40, Barbour v. Haley, 471 F.3d 1222 (11th Cir. 2006) (No. 06-10920) (internal quotation marks omitted), available at http://www.nytimes.com/2007/03/26/us/26bar.html.
83. Maples v. Allen, 586 F.3d 879, 884 (11th Cir. 2009).
84. Maples v. Allen, 586 F.3d 890 (11th Cir. 2009).
85. Maples v. Allen, 586 F.3d 890 (11th Cir. 2009).
86. Jones v. Flowers, 547 U.S. 220, 223 (2006).
87. Jones v. Flowers, 547 U.S. 229-30 (2006)
88. Jones v. Flowers, 547 U.S. 230 (2006)
89. Maples v. Thomas, 132 S. Ct. 912, 922 (2012) (citing Coleman v. Thompson, 501 U.S. 722, 753-754 (1991).
90. Maples v. Thomas, 132 S. Ct. 922-23 (2012)
91. Maples v. Thomas, 132 S. Ct. 917 (2012)
92. Maples v. Thomas, 132 S. Ct. 929 (2012) (Alito, J., concurring).
93. Maples v. Thomas, 132 S. Ct. 933 (2012).
94. Maples v. Thomas, 132 S. Ct. 933 (2012).