Your 93-year-old dowager aunt Nell dies but there's a real issue about whether her museum-quality collection of corrugated cardboard crates and the castles in Castille and Kensington where she has them catalogued should go to you or to M.T. Assets, the ne'er-do-well 24-year-old gardener with whom she's been carrying on a clandestine affair for a couple of years.
You hire the law firm of Dudley and Doright to defend your interest in the estate. He hires Snidely and Whiplash. Dudley files an incompetent response to Snidely's summary judgment motion and you're out on your ass, forced to leave in a flea bag hotel in Chelsea while M.T. suns himself on the Riviera.
You appeal, of course, now represented by Rock & Bull Winkle, but the case is tossed almost immediately. You chose to hire D & D. You pays your money and you takes your chances and you got fucked. (No, I'm not doing the joke). That's because when you hired D & D as your lawyers, they became your agents and you're bound by what they did as long as it was within the scope of what you hired them for. That they did it incompetently doesn't do squat. No do over, sorry.
Of course. You sue Dudley for malpractice. And because he was so obviously incompetent, you win. Sure he was your agent, and for purposes of the agency (beating off M.T. and getting hold of Nell's boxes) you're bound by what he did. But he was supposed to do it competently, and he didn't. So he gets sued and you get millions (though Rock and Bull take a share).
At least that's the idea. You made your legal bed, now lie in it. But if the lawyer screws up you can sue and recover what you lost.
Which has its problems as a system that purports to be fair, but there's a certain logic to it that's built around the law of agency.
Thing is, agency law doesn't work so well when the lawyer/agent is representing someone charged with a crime. See, when the issue is something really important like money, it can be fixed by paying money. It all evens out (sort of).
Doesn't work that way in a criminal case, though. The defendant didn't just have to pay, he got to go to prison. He lost his job and his family and his standing in the community. Oh, maybe he can sue for malpractice, but so what? Even a win won't get him back the years.
Or his life.
I've written about all this before, of course. Repeatedly. But now there's this from Adam Liptak writing the Forward to this year's book review issue of the Michigan Law Review (I've stripped out the footnotes).
If you were to ask a child whether it would be fair to execute a prisoner because his lawyer had made a mistake, the answer would be no. You might even get a look suggesting that you had asked a pretty stupid question. But judges treat the issue as a hard one, relying on a theory as casually accepted in criminal justice as it is offensive to principles of moral philosophy.
This theory holds that the lawyer is the client’s agent. What the agent does binds the principal. But clients and lawyers fit the agency model imperfectly. Agency law is built on the concepts of free choice, consent, and loyalty, and it is not unusual to find lawyer-client relationships in which some or all of these elements are missing.
Liptak goes on to discuss the development of the agency model (civil cases), its application to criminal law, and some softening of it - at least in truly extreme cases of abandonment like Holland v. Florida and Maples v. Thomas.
But there are dangers, Liptak seems to accept, with taking this all too far. If the client is never bound by the lawyer's negligence or incompetence, then the client may be better served to have a negligent or incompetent lawyer than a good one. Which is, of course, silly.
The client, and especially the criminal defendant, is always better served by having a lawyer who does right from the start than by hoping he can convince a later court to undo a screw up after he spends, perhaps, a few years in the tender embrace of the prison system.
No, there's no serious danger in actually saying that the client shouldn't suffer - not even a little - for his lawyer screwing up.
But there's another problem, too, with agency law here - at least, in the criminal context where the vast majority of the clients don't choose their lawyer. They're represented, instead, by public defenders or court appointed counsel or contract lawyers. They're represented, that is, by lawyers chosen by the government, paid by the government. They have (ordinarily) no say in who their "agent" will be. They never agreed to let Doright do the case, let alone agreed to let him do it wrong.
Liptak puts it this way (footnote again stripped).
Now consider a client who is poor, uneducated, mentally troubled, scared, or imprisoned—or perhaps all of these things at once. And then add to this mix a lawyer who is not retained but a volunteer or assigned by the state. Does it still make sense to consider such a lawyer an authentic agent of the client?
Perhaps to the courts. Maybe to some lawyers. Not, I think, to ordinary folk.
The thing is, Liptak distinguishes that fairly ordinary circumstance from what he refers to as "the ideal case." For that, he has us imagine
a sophisticated client with money. That client presumably chooses a good lawyer, monitors and controls the lawyer’s work, and fires her if she turns out to be disloyal or incompetent. The lawyer in that case really is the instrument of her client’s will, and so the client may fairly be tagged with the lawyer’s errors.
I'm sorry, no. Because the lawyer doesn't suffer the risk of the error. The lawyer doesn't suffer the consequence. Not in the criminal arena.
At the end of the day, whatever the jury says about the client, the lawyer goes home. However much the lawyer got paid, with whatever degree of care she was vetted and selected, however that works, the client is the one who faces a steel cot and a sink atop the toilet tank. And maybe a gurney and a needle.
And if that's because the lawyer was negligent or incompetent, it's just wrong.