Performance Standards For Attorneys:
by M. Kelly
In attempting to establish possible standards of performance for attorneys, it would appear necessary to first identify those areas in which attorneys in general are currently performing or operating unsatisfactorily. One method of ascertaining this is to inquire of those individuals who either utilize, observe, or interact with attorneys on a regular basis. One such group is defendants in criminal cases. The following, then, is the essence of observations, comments and personal experiences offered by inmates at the Federal Prison Camp at Sheridan, OR.
The perspective of the federal prison inmates varies greatly due to the variety in offender backgrounds and characteristics. Despite these differences, the retrospective evaluation of legal representation offered by criminal defendants is remarkably similar. Most individuals identify precisely the same areas of concern or dissatisfaction regarding their trial counsel and generally convey a similar overall assessment of their experiences. These areas of concern and/or dissatisfaction can be grouped into three basic categories: (1) pretrial; (2) sentencing; and (3) post-conviction phase. The first group deals with that period of time before a jury verdict or guilty plea is entered. The second group pertains to that time from verdict/plea through sentencing. The final group contains those concerns usually arising after sentence has been imposed.
While the errors or omissions committed by an attorney before trial are the first to occur, they are often the last to be recognized, especially by the defendant/client. This is due to the fact that the defendant is frequently unfamiliar with the judicial system and process, usually by virtue of the fact that he/she is a first time offender. This lack of experience prevents the defendant/client from identifying mistakes or omissions during pretrial proceedings. Further, the defendant is usually suffering from the 'clubbed fish' syndrome. However, once identified, the complaints of one individual to the next are often similar. They include:
The overall conclusion drawn by federal inmates from their pretrial experience is that most attorneys never seriously consider taking a case to trial. While this may be more common in federal cases than state, there definitely exists a predisposition toward plea bargaining. The ramifications of this reluctance to pursue a defense are many, most of which are covered in the above list. Importantly, however, is that this approach results in a premature resignation of the attorney to a course of action which does not include sufficient effort being made to investigate issues which could lead to the discovery of a potential defense, and in the attorney maintaining a perfunctory attitude toward the client and his insights.
As defendants are often guilty of at least some portion of the crimes with which they have been charged, most ultimately reach a plea bargain regardless of the attorney's best efforts at finding a defense. Thus, it may be argued, representation and preparation for the sentencing phase of criminal proceedings has become the most important function of the contemporary defense counsel because the outcome of this part of the defense process will affect not just the amount of time a defendant will spend in prison, but how and where he might spend it. This is particularly true at the federal level.
Even more specifically, the Presentence Investigation Report (PSI) has become the centerpiece of the sentencing proceedings. Unfortunately, the litany of complaints by the federal inmates interviewed for this report begs the question: Do attorneys themselves appreciate the full role and impact of the PSI? These complaints included:
Other issues unrelated to the PSI include:
Also of concern is the same lack of communication between the attorney and the defendant expressed in the discussion of the pretrial issues. Once again, this absence of synergy results in detrimental consequences, primarily in the form of information going unchallenged at sentencing which does not directly relate to the sentence, but may have a large impact on how the Department of Corrections or the Bureau of Prisons administrates the sentence. Even a hint of weapons, threatening statements, or the like which were never discussed in court, may provide the basis for prison officials to justify the imposition of one or more 'management variables' which could affect the inmate's prison stay. In short, greater attention must be demonstrated to those issues which do not directly affect the actual sentence, but may determine how that sentence is administrated.
As one might suspect, once a defendant enters prison, he often develops a sense of abandonment. The causes of this are numerous and come from many sources, but those originating from the attorney include:
In general, the conclusion that is drawn by many inmates is that attorneys are unwilling to incorporate their clients' ideas or insights into the appeals process. This unilateral approach by the attorney naturally results in the client continually initiating contact with the attorney via phone calls and letters, which the attorney naturally finds little need to answer. This, of course, evokes a great deal of frustration and resentment, both of which are unnecessary, and can be avoided with representation which is slightly more sincere in its practice.
For the most part, the complaints inmates have regarding their attorney's representation do not deal so much with the technical aspects of their performance as it does with their 'bedside manner.' Failure to initiate regular contact with the client from arrest through appeal, failure to accept calls and answer letters and the unwillingness to allow the defendant to contribute to his defense with ideas and opinions, portray an unprofessional image and create a resentful client.
Therefore, the following improvements are recommended:
Most inmates seem to recognize that attorneys, by and large, are hard working, good natured individuals who perform their responsibilities to the best of their abilities. Unfortunately, many seem to afford little or no attention to details which could prevent the alienation of their criminal defendant clients. With a little additional effort, the perception of attorneys' performance could be greatly improved. In the absence of such, however, standards mandating a level of performance in these areas may be warranted.