Ethical Issues for Attorneys in Problem-Solving Courts

NADCP 18th drug court training conference

Hon. Peggy Fulton HoraJudge of the Superior Court (Ret.)

Sunday, july 17, 2011

Chief Justice Warren Burger:

• “[Lawyers] must be legal architects, engineers, builders, and from time to time, inventors as well. We have served, and must continue to see our role, as problem-solvers, harmonizers, and peacemakers, the healers – not the promoters – of conflict.”

Daicoff, Susan, “Law as a Healing Profession: the ‘Comprehensive Law Movement’,” 6:1 Pepperdine Dispute Resolution LJ (2006)

State Bar of Michigan

• When there is a defender office, one function of theoffice will be to explore and advocate for programs that improve the system and reduce recidivism.

• The defense attorney is in a unique place to assist clients, communities and the system by becoming involved in the design, implementation and review of local programs suited to both repairing the harm and restoring the defendant to a productive, crime free life in society.

Revise the code of judicial ethics?

“The wording of State codes of judicial ethics may appear to discourage or place little value on problem-solving and court and community collaboration.”

Rottman, David and Pam Casey, “Therapeutic Jurisprucdence and the Emergence of Problem-SolvingCourts,” National Institute of Justice Journal (1999)

Duty to be informed about drug courts

• Lawyers must educate themselves about drug court programs.

• They cannot effectively advise their clients otherwise• “To ignore the need to learn about the drug court

process is to ignore the evolution of the justice system”

• “For lawyers to do otherwise is for them to become legal dinosaurs”

• Smith v. State FL Ct.App. 4th Dist. 3/19/03

Prosecution Ethics

Jack McCoy, Law & Order

• Protect and promote public safety

• Cannot charge without PC (Model Rule 3.8)

• Duty to dismiss weak case

Jack McCoy, DA, Law & Order

Net Widening

Studies in AZ and CA found no evidence DAs were overcharging and, in fact, in DTCs, charges were being reduced to allow participation

Riley, J. et al., “Just Cause or Just Because? Prosecution and Plea-Bargaining Resulting in Prison Sentences on Low-Level Drug Charges in California and Arizona,” (2005)

Define:

Prosecution Issues

• Must adopt less punitive approach• Soft on crime (‘hug a thug’)• Conviction required or evidence lost• Trained to put people in jail• Misperception of link between mental illness &

violence• “Buy in” from prosecutor required for program

success• Drug courts that expect the Prosecutor to

attend all team meetings have more than 2 times greater cost savings

Defense Issues

Yvonne Smith Segars, Esq., Public Defender of New Jersey (Ret.)

Brian

Long time clientPetty, non-violent crimesSubstance abuse + MH

issuesOffer: CTS or DTCCan you predict his

success?Ability to cope with

program?Pre- or post-plea?

Questions for Defense Counsel in DTCs

• Will the client spend more time in jail?• Attend court more frequently?• FTA more frequently?• Provide judge with personal information?• Examine the root cause of addictive behavior?• Focus on long-term rather than short-term goals?

Mary Ann

Prostitution, petty theft, possession, multiple DWIs, vandalism

Long-term health problems (Hep C and cirrhosis)

Wants out todayDoesn’t want to go to DTC“There’s nothing wrong

with me”

Must guard against

• Use Therapeutic Jurisprudential approaches “paternalistically” …when client ‘really needs psychological treatment or help’

Daicoff, supra.

• Does it diminishes the role of the attorney? • How is it different from explaining a plea agreement?• What is in the “best interests” of the client?• What is an “informed decision” re: representation

(Model Rule 1.4)• Balance client needs with “early and prompt

placement” in Key Component #3• Due Process implications

Darwin

• In a search of D’s house, meth and paraphernalia were found. There is an arguable 4th Am. issue on a new theory you’ve been dying to use

• File the motion or take DTC offer?

• Sacrifice potential for acquittal/ dismissal in questionable case or agree to conviction (in post-adjudication setting) & treatment?

Jennifer

Current participant in DTC

Partied on the w/eTested positive for

cocaineSwears it was a false

positive caused by dental work

Novocaine, Lidocaine, Xylocaine

COCAINE

Acquiesce to sanctions or “zealously” advocate for client?

Argue client’s position just in staffing or in court in client’s presence?

Therapeutic or anti-therapeutic effects of arguments and location?

“Whose team am I on anyway?”

Quinn, Mae C., Whose Team Am I on Anyway? Musings of a Public Defender About Drug Treatment Court Practice, 26 N.Y.U. Rev. of L. & Soc. Change 37 (2000-2001).

Adversarial System

Does it hinder tx by obstructing communication and encouraging denial?

Is there an inherent conflict between a non-adversarial system in problem-solving courts and ethical duties of judges and lawyers?

Simon, William H., Criminal Defenders and Community Justice: The Drug Court Example, 40 AM CRIM. L. REV. 1595, 1596 (2003)

• AND Model Rules of Professional Conduct, Rule 2.1 anticipates interdisciplinary behavior by lawyers.

• “…[A] lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors that may be relevant to the client’s situation.”

Rhonda

Coming down from 3 day meth run

Falling asleep while interviewing

“It wasn’t my meth. I was holding for my boyfriend”

“I don’t care what happens. Just leave me alone”

• Legal/cognitive competence of client to exercise options

• Prone to relapse, AOD clients display denial, rationalization, resistance so who is making the decision - lawyer or client? (Model Rule 1.4, ABA Std Criminal Justice 4-5.1)

Ex parte Communication

Ex parte communication must be specifically waived or asserted (Model Code Judicial Conduct, Canon 3B(7))

Who is present at staffing? Is it ok to attend team meetings w/out client?How many levels of hearsay in staffing?Are 42 CFR waivers executed for everyone present?What about HIPPA?

Defense attorneys support DTCs• In one survey, defense counsel was overwhelmingly

satisfied with DTC• 97% reported they were glad to have DTCs for their clients

and agreed their clients were not hurt by the process• 97% also felt they did not have to abandon their traditional

adversarial duties• 90% reported higher job satisfaction than when practicing

traditionally

Indigent Defense, Nov./Dec. 1997 at 8

Some Public Defenders originally resistant to DTCs are now some of their biggest supporters:

James Hennings, Portland ORMark Stephens, PD of TN: “a rewarding experience and

helpful in dealing with drug problems among clients”Yvonne Smith Segars, PD of NJ founding member of

NADCPMichael Judge, PD of CA, NADCP founding Board

Clarke, Problem-Solving, op cit.

• “It is in both the State’s interest and our client’s interest to promote healing rather than hurting the offender.”

Marin County Public Defender 2008

An ethics explosion

• The U.S. Supreme Court took up 16 cases involving lawyering in 2010, amounting to 20 percent of its docket

• State appellate courts coming down with lots of due process cases

References

• Clarke, Cait, et al., “Making the Case: Therapeutic Jurisprudence and Problem Solving Practices Positively Impact Clients, the Justice Systems and Communities They Serve,” St. Thomas LR 17:3 (Spring 2005)

• Clarke, Cait, et al., “’From Day One’: Who’s in Control as Problem Solving And Client-Centered Sentencing Take Center State?,” NYU Rev L & Soc Change 29:1 (2004)

• Clarke, Cait, “Problem-solving Defenders in the Community: Expanding the Conceptual and Institutional Boundaries of Providing counsel to the Poor,” Georgetown J of L Ethics XIV:2 (Winter 2001)

• Daicoff, Susan, “Law as a Healing Profession: the ‘Comprehensive Law Movement’,” 6:1 Pepperdine Dispute Resolution LJ (2006)