Wednesday, July 16, 2014

Especially When It's Hard: Falling on One's Sword

I got a call today from a good lawyer hoping I could give him some advice.  He'd been appointed to do an appeal on behalf of a guy whose trial counsel was, to put it delicately, horrifically incompetent.  So bad that after he filed his brief in the court of appeals explaining just how and why the trial lawyer fucked up so badly that he didn't even reach the insanely low bar of constitutional effectiveness (hold a mirror to the lawyer's nose; if it fogs up, he was sufficiently competent), the prosecutor filed a brief saying agreeing that the lawyer was so bad that the client should get a new trial.

That is, frankly, unheard of.

But then, trial counsel (no newbie, by the way but a lawyer of long, albeit undistinguished standing) got hold of the client at the state run bars and breakfast.  Hey, he said, I'll file a motion asking the judge to cut you loose on probation if you'll just withdraw that appeal.  Hell, all you get from an appeal is a new trial.  I'm offering you a chance to get out now.  And you know, I won't even charge.

Of course, no guarantee, either.

Not surprisingly, the client was sore tempted.  Bird possibly in the hand or another trial - and maybe a plea to less time than he's doing.  Except, of course, it wasn't about the client.  it was about the lawyer who was damn sure he didn't want the court of appeals spitting out an opinion explaining that the client would have been better off represented by, say
I've written before about lawyers more concerned with themselves than with their clients.  Hell, I've had a whole series of posts I called "Selling Out the Client."  This guy's story would fit comfortably there. But been there and done that.

He's not the worst of the herd.  He's at least offering a free, potentially useful service in exchange for burying his failure. Anyway, I'm writing about him as a set up to talk about the other sort of lawyer. The kind who, when they fuck up* fess up.  Fall on their sword.

This guy, for instance.
 He's Steven O'Connor, and if the picture (from his LinkedIn page) is a little goofy, hey, he's from California.  And he's been practicing law since 1989.  And now

Rosalio Ahumada has the story in the Modesto Bee.
A defense attorney on Tuesday defied a judge by refusing to continue with the sanity phase of a Turlock murder trial. The judge was forced to suspend the trial and remove the attorney, who now faces court sanctions and discipline from the State Bar of California.
Defense attorney Steven O’Connor said in court that he was not competent and wanted off the case.
“I’m not going to proceed in this case,” O’Connor told the judge. “You can find me in contempt. You can notify the State Bar.”
And the judge huffed and puffed and threatened.  And O'Connor stood his ground.  And the judge did find him in contempt.  And she is reporting him to the bar.

Read more here:
Scott Greenfield notes that we can't tell from Ahumada's story just why O'Connor thought his trial phase representation incompetent or why he thought he could not be competent at the sanity phase. The answers likely matter - or they will - to his client, "Nicholas John Harris, who was found guilty last month of second-degree murder and arson in the stabbing death of Mark Anthony Henson."  And they may matter to the State bar.

They don't matter here.  O'Connor agreed to represent Harris.  For whatever reason, he did a terrible job.  Then he owned up to it.

It would have been simple enough to blow it off.  O'Connor could have showed up for the sanity hearing.  He could have done a great job or a mediocre one or something truly piss poor.  The likelihood is that it wouldn't have mattered - except maybe to Harris.  If the quality of his work were challenged on appeal, given the standards courts use, it almost surely would have been close enough for government work.

But O'Connor didn't.  He took the heat.  And what's pretty clearly a major hit to his career.

Because he understood that one thing, understood and acted on it.

It's never about us.  When we take that oath, we're saying that the client's interest comes first.  It comes before the vacation.  It comes before family and friends.  And it sure as hell comes before professional reputation.

We all know that.  O'Connor just lived it.  Which puts him in the pantheon.  And his career likely in the shitter.

Scott says he'd buy him a drink.
Even though he won’t be given any awards for his representation of Nicholas Harris, if I was out in Modesto, I would buy Steven O’Connor a drink. And I bet he could use one.
I would, too.  But I'm not there.  So I'll just hoist a glass in his honor.

Here's to you, Steve.  A lawyer with balls.  And integrity.

* And really, we all do, to a greater or lesser extent, at one time or another.  We ask a horrifyingly stupid question.  We fail to ask a question we should have.  We miss a legal point - obvious or obscure that would have helped the client.  We give advice that turns out to be wrong.  We blow a deadline. Something.  Most of the time it doesn't change anything.  Often the fuck up can be cured.  But still.

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