duty of competence

Missouri Judges Want Public Defenders To Violate Their Ethics Rules

/ Jack Marshall / 12 Comments

“Hey, Julie! Here’s another drug possession case for you! Looks like a bad stop and frisk…”

The overworked public defender problem is a massive ethics and civil rights problem that few members of the public know about, and fewer care about.

Many cities have underfunded public defender offices, meaning that the mostly young lawyers working there who are charged with protecting the rights of indigent citizens accused of crimes have excessive case loads, often brutally excessive. In some states, judges have ordered the offices to accept no more cases until additional lawyers are hired, because a lawyer’s representation must be competent and diligent, and these ethical requirements become literally impossible to meet when a lawyer has accepted responsibility for too many cases. In situations where public defenders have argued that indigent clients should be able to waive competence and diligence requirements (since the alternative may be no representation at all), the argument has been rejected. Those ethical requirements cannot be waived. They are mandatory.

In his article on the subject, Professor Stephen Hanlon of St. Louis University Law School, a civil rights specialist, writes, Continue reading →

Ethics Heroes: The Orleans Public Defenders

/ Jack Marshall / 46 Comments

foldersWhen is it your ethical duty to refuse to do your job? Here is one example.

The Orleans Public Defenders office finally decided to force the issue of under-funding for the defense of indigent criminals in the city, announcing last week that, as Chief Defender Derwyn Bunton warned nearly two months ago without any official response, it will begin refusing to handle serious felony cases in which defendants face lengthy or life sentences. Such cases include murder, attempted murder, forcible rape and armed robbery.

The office either needs more funding or reduced caseloads. The city must provide a lawyer for those charged who cannot afford counsel (The 6th Amendment and the Supreme Court insist) , but like almost every city in the nation, the funding for the New Orleans public defenders service is pitiful. With an inadequate staff of lawyers who must handle more cases than it is possible to defend competently, this creates both a Constitutional crisis and an ethical one.

Defense lawyers, like all lawyers, must do a competent job. The professional ethics rules require attorneys to control their workloads: Comment 2 to ABA Rule 1.3, which corresponds to the Louisiana rule, states that a lawyer’s workload “must be controlled so that each matter may be handled competently.” Most public defenders offices know that their clients’ right to representation is being compromised by under-funding, but choose to soldier on, doing the best they can. Several years ago, one office even argued that their clients had “consented” to less than competent representation, because the alternative was no representation at all.  (The court did not agree.)

The American Bar Association addressed this problem in a formal opinion, and wrote, Continue reading →

Christine O’Donnell’s Insult to Democracy

/ Jack Marshall / 2 Comments

[NOTE: For reasons having to do with  brain synapses and carelessness, the earlier version of this post had Ms. O’Donnell identified as  Christine Whitman, who is not insulting democracy, at least not yet. I apologize to Ethics Alarms readers and the GOP candidate for governor of California for the error.]

As there is no defined “duty not to make the entire theory of representative government look like a terrible mistake” we’re just going to have to settle for applying the ethical duties of diligence, competence, and a few others in assessing Republican Senate nominee (in Delaware, which is collectively cringing in embarrassment) Christine O’Donnell’s disqualifying performance during her recent debate with opponent Chris Coons.  Continue reading →

Ethics Trainwreck in Kermit, Texas

/ Jack Marshall / 4 Comments

In the tiny west Texas town of Kermit, just north of Mexico, an ethics train wreck is underway that may have long-term consequences far beyond the Lone Star State.

Anne Mitchell, a nurse with an impeccable record, became disturbed at the conduct of a physician at the Winkler County hospital where she worked. After unsuccessfully attempting to get hospital administrators to deal with what she believed was a matter of patient endangerment, she sent an anonymous complaint to the Texas Medical Board. This was a classic whistle-blower situation, protected by law and encouraged by the ethics code governing nurses. Unless she trumped up her accusations for a personal vendetta, she did exactly what the medical profession says she has an obligation to do, a responsible act of medical system self-policing that all too few nurses are willing to follow. Continue reading →

When Experts Aren’t: The Ethics of Competence and “The Elements of Style”

/ Jack Marshall / 3 Comments

Ethics Alarms, and apparently few others who don’t have their TV stuck permanently on Fox News, expressed its outrage of at the revealed ignorance of Al Gore, whose opinion on climate change policy carries weight and influence far beyond his demonstrated ability to comprehend the natural forces underlying his own opinion. (This week Al came up with another howler, stating that the polar ice caps would be gone in a couple of years. The scientist he erroneously quoted regarding this quickly announced that Al must have been talking about some other ice caps.) Experts who are really incompetent cause great harm, which is why competence is a critical, though often ignored, ethical duty for all professionals, from Albero Gonzalez to Bernie Madoff to Ashley Simpson to White House social secretaries.

This excellent article, a long time coming, finally exposes the incompetence of William Strunk and E.B.White, whose 1918 mini-book  “The Elements of Style” was uncritically adopted as gospel by generations of English teachers, many of whom were incompetent themselves. This over-reaching duo was to blame for all the perfectly appropriate split infinitives and passive voice sentences that you were marked down for using in the 9th Grade, and I have a book editor I’m sending this link to as soon as I finish this post who has been quoting  Strunk and White to get me to stop beginning sentences with “And” or “But.”  How many promising, lively young writers were throttled into mediocrity by this book we will never know, but it stands as vivid and tragic lesson on why experts have an obligation to be at least nearly as smart as they claim to be.