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Yesterday, the Supreme Court, in Maples v. Thomas, found that a prisoner sentenced to death did not lose his right to appeal when his attorneys from a fancy New York law firm abandoned his case.  This has been called a mail-room mistake, but actually it's much worse.  Here's a thumbnail of the case.

The defendant, Maples, was charged 1997 with having murdered two of his pals in a night of drinking and drug use.  He pled not guilty raised a defense based on lack of capacity.  He was represented by two lawyers, quite underpaid, only one of whom had any experience in a capital case.  The jury found him guilty, and recommended death by the minimum vote, which in Alabama is not unanimous, but rather only 10 votes of the 12 jurors.  Maples appealed to the Alabama Court of Appeals and the Alabama Supreme Court, which both rejected his appeals.

Maples then sought "postconviction relief" in the state trial court which is a means of attacking the competence of his trial lawyers.  It was necessary for Maples to bring this action in state court, and prosecute it up (again) to the Alabama Supreme Court before he could present a challenge to his conviction in federal court.  Maples alleged in his post conviction proceeding:

... underfunded attorneys failed to develop and raise an obvious intoxication defense, did not object to several egregious instances of prosecutorial misconduct, and woefully underprepared for the penalty phase of his trial.

It was this post-conviction relief at the state trial court level where the problem occurred.  From the opinion of the U.S. Supreme Court (.PDF):

Cory R. Maples is an Alabama capital prisoner sentenced to death in 1997 for the murder of two individuals. At trial, he was represented by two appointed lawyers, minimally paid and with scant experience in capital cases. Maples sought postconviction relief in state court, allegingineffective assistance of counsel and several other trial infirmities. His petition, filed in August 2001, was writtenby two New York attorneys serving pro bono, both associated with the same New York-based large law firm. An Alabama attorney, designated as local counsel, moved the admission of the out-of-state counsel pro hac vice. As understood by New York counsel, local counsel would facilitate their appearance, but would undertake no substantive involvement in the case.

Maples’ postconviction petition remained pending in the Alabama trial court, his New York attorneys left the law firm; their new employment disabled them from continuing to represent Maples.  They did not inform Maples of their departure and consequent inability to serve as his counsel. Nor did they seek the Alabama trial court’s leave to withdraw. Neither they nor anyone else moved for the substitution of counsel able to handle Maples’ case.

In May 2003, the Alabama trial court denied Maples’ petition. Notices of the court’s order were posted to the New York attorneys at the address of the law firm with which they had been associated. Those postings were returned, unopened, to the trial court clerk, who attempted no further mailing. With no attorney of record in factacting on Maples’ behalf, the time to appeal ran out.

Thereafter, Maples petitioned for a writ of habeas corpus in federal court. The District Court and, in turn, the Eleventh Circuit, rejected his petition, pointing to the procedural default in state court, i.e., Maples’ failure timely to appeal the Alabama trial court’s order denyinghim postconviction relief. Maples, it is uncontested, was blameless for the default.

Below the Squiggle of Doom I offer additional details and some ideas on what really happened.

What happened?
In short, the defendant's Alabama lawyer abdicated all responsibility for the case to the two New York lawyers, who were working for the firm of Sullivan and Cromwell, one of the most prestigious in the country.  The lawyers doing the work were of the rank of "associates", basically junior attorneys who have no permanent stake in the firm.  

Most of these firms have a policy of "up or out" which means that in seven years or so after being hired, associates who are hired are either invited to join the firm as a partner, or they are fired.  Very few actually make partner, and most, realizing they aren't going to make the cut, move on to other jobs well before the traditional seven-year deadline arrives.  The legal professional has a phrase for this: "associates are fungible; partners are not".  But don't feel sorry for the poor associates, they're already starting on third base in the legal profession, and their degrees, from Harvard, Yale, etc. get them at the top rank of any legal job opening in the country.

And Sullivan & Cromwell is no ordinary law firm.  From their Wikipedia article:

Sullivan & Cromwell LLP is an international law firm headquartered in New York. The firm has approximately 800 lawyers in 12 offices, located in financial centers in the United States, Asia, Australia and Europe. Sullivan & Cromwell was founded by Algernon Sydney Sullivan and William Nelson Cromwell in 1879. The firm consistently ranks as one of the most prestigious law firms in the world. As of 2010, it was the 18th largest law firm in the world, by revenue.

Pro bono vs. anti-bono
Now, these firms also have a pro bono policy, that is, because the firm spends a huge amount of time earning treasure by protecting the rights of various wealthy individuals and powerful companies, and helping them acquire even more wealth and power, this creates a certain entirely accurate impression that the law firm are a bunch of mercenary assholes.  

Hence the pro bono policy, which to be fair, places the entire resources of the firm available for a certain category of cases which the firm believes (a) deserve legal help and (b) will counter the public image of the firm as a school of money-grubbing lampreys.  The pro bono program is also used to lure the more idealistic among the new hires of the firm, who may well not be looking forward to immediately undertaking a life-time of drudgery (albeit well compensated) for the 1% or more likely, the 1% of the 1%.

The law firm's screw up.
Now, in this case, Sullivan and Cromwell had two associates working on the case.  However, they did not understand one basic principle of litigation, which was it was the lawyers job to keep up on the status of the case, and to keep the court informed of any changes in the lawyer's address.  Worse yet, the firm did not assign a non-fungible person, a partner, to supervise the work of the associates, which of course would have been standard if this had been an ordinary paying case.  So, when the critical document arrived, the firm's mailroom didn't have any idea who to give the document to.  The law firm chose to portray this as a mail room error, but in fact it was a board room error.

Let me make this perfectly clear: Sullivan and Cromwell fucked this case up.  Big time.  That is because the death penalty case, which should have been treated as the firm's highest priority, instead received no more attention than an unpaid magazine subscription (to GQ, no doubt) for the firm's lobby.

The legal issue
Generally most clients are stuck with their lawyer's mistakes.  If the lawyer screws up, there's a malpractice action which supposedly can make the client whole.  This is true even in death penalty cases, but here there is a narrow exception where the lawyer has abandoned the client, and in effect, ceased to act in the role of a responsible attorney.  Ordinary miscalculation of deadlines and so forth won't do the trick, there must be something close to desertion of the client by the lawyer.

Here's what the Supreme Court, in a 7-2 vote said about the lawyers, both the one in Alabama and the fancy outfit in New York:

Maples maintains that there is, for the lawyers he believed to be vigilantly representing him had abandoned the case without leave of court, without informing Maples they could no longerrepresent him, and without securing any recorded substitution of counsel. We agree. Abandoned by counsel, Maples was left unrepresented at a critical time for his state postconviction petition, and he lacked a clue of any need to protect himself ...

I can think of no more damning condemnation of any attorney or law firm that this should be said of them in a death penalty case.

The irresponsibility of Sullivan & Cromwell
Sullivan & Cromwell only learned of the default when Maples called his mother, and the mother called the law firm.  By then the two associates were long gone to prestigious jobs, one for a federal judge, and one for the European Union in Brussels.  Both these positions disqualified them from doing any work for Maples or indeed any private legal work of any kind.  

The departing associates failed to undertake even the most basic of their obligations both to Maples and to the court in Alabama because they informed no one in Alabama of this change, and they did not seek written authorization from the court to substitute counsel.  

This screw up would have been immediately obvious at Sullivan & Cromwell, and it must have set off a reaction somewhat like the day after Pearl Harbor.  The proper thing for Sullivan & Cromwell to have done would have been to immediately recognize that as a conflict of interest existed between them and Maples, because their screw up had essentially resulted in his loss of all ability to challenge his conviction and death sentence. Maples best chance to challenge the running of the appeal deadline in the state court would be to place the blame where it belonged, which was on Sullivan & Cromwell.

Under these circumstances, Sullivan & Cromwell should also have undertaken to hire, at their own expense, new and independent counsel, who could prepare a proper challenge to the loss by Maples of his appeal rights.  They should also have made a full disclosure and acceptance of responsibility to the trial court in Alabama.  

But Sullivan & Cromwell did no such thing.  In the words of the Supreme Court:

... a significant conflict of interest arose for thefirm once the crucial deadline passed. ...  Following the default, the firm’s interest in avoiding damage to its own reputation was at odds with Maples’ strongest argument—i.e., that his attorneys had abandoned him,therefore he had cause to be relieved from the default. Yet Sullivan & Cromwell did not cede Maples’ representation to a new attorney, who could have made Maples’ abandonment argument plain to the Court of Appeals.

Instead, the firm represented Maples through briefing andoral argument in the Eleventh Circuit, where they attempted to cast responsibility for the mishap on the clerk of the Alabama trial court.

Given Sullivan & Cromwell’s conflict of interest, Maples’ federal habeas petition, prepared and submitted by the firm, is not persuasive evidence that Maples, prior to the default, ever “viewed himself” as represented by “the firm,” see post, at 4, rather than by his attorneys of record [the two associates].

Another blogger here says this "does not place S&C in the best light."  Indeed.  When the Supreme Court finds that a law firm like Sullivan & Cromwell has engaged in a conflict of interest in a freakin' death penalty case, ye shit shall hit yon fan.  My guess is that someone, or more than one someone, may well have to answer to the Bar Association for this, and properly so.

The concurrence
Alito turned in a concurrence in which he claimed that it was only the "perfect storm" (his words) of events that led to the loss of Maples challenge in the state courts.  In particular Alito disputed that the state of Alabama's hideous underfunding of death penalty cases, and permitting of unqualified counsel to conduct the defense, was NOT ultimately to blame for all this.  In fact, it was -- Alito was being willfully ignorant.

The dissenters
As you might guess, Scalia and Thomas, two of the most miserable excuses for judges ever known, dissented, and would have offed the guy themselves, if they could have.  Their idea was that after the big mess up, Sullivan and Cromwell provided adequate representation to Maples, ignoring the slight problem of the law firm's trying to shift the blame to others rather than accepting it, as the best interests of the client demanded.  I wonder what kind of lawyers Scalia and Thomas must have been, if this is their idea of ethical conduct.

The real problem
The real problem is Alabama's death penalty defense system.  Here's what the Supreme court has to say about it:

Alabama sets low eligibility requirements for lawyers appointed to represent indigent capital defendants at trial. Appointed counsel need only be a member of theAlabama bar and have “five years’ prior experience in theactive practice of criminal law.” Experience with capital cases is not required.  Nor does the State provide, or requireappointed counsel to gain, any capital-case-specific professional education or training.

Appointed counsel in death penalty cases are also undercompensated.  Until 1999, the State paid appointed capital defense attorneys just “$40.00 per hour for time expended in courtand $20.00 per hour for time reasonably expended out of court in the preparation of [the defendant’s] case.”  Although death penalty litigation is plainly time intensive, [Federal capital cases from 1990 to 1997 took an average of 1480 hours of out-of-court lawyer time, about a year of work for a lawyer], the State capped at $1,000 fees recoverable by capital defense attorneys for out-of court work.  Even today, court-appointed attorneys receive only $70 per hour.

Another point raised in the opinion was that on the post-conviction relief phase, Alabama does not regularly provide court appointed counsel, but relies, particularly in death penalty cases, on the willingness of out-of-state law firms to undertake representation of these clients pro bono.  In short, rather than pay for a cadre of local lawyers to act as strong advocates for death penalty defendants in post-conviction cases, Alabama off-loads the problem onto charity and depends as a practical matter, on out of state lawyers to do the work that should be done in state.  Under these circumstances, screw ups like the Maples case are bound to happen, no matter what Alito says or thinks.

Utter lack of experience by the Sullivan and Cromwell associates.
On another lawyer blog (link the following points are made:

[Associate 1] and [Associate 2] began representing Cory Maples in September 2000. [Associate 1] was trained as a lawyer in France and she received an L.LM from Harvard in 1999. [Associate 2] graduated from the University of Michigan Law School, also in 1999. Neither of the two did a clerkship before starting at S&C. In other words, Maples’s life was in the hands of two lawyers, one educated in France, both just entering their second year as S&C associates in New York City. And those two sophomore lawyers were responsible for navigating the complexities of Alabama law and the minefield of federal law governing habeas review of state court judgments.

There is no question that a firm like S&C can handle the complexities and risks of death penalty litigation. But leaving the task to two beginners, if that’s what big firms are doing, is surely a bigger sin than any a mail room employee might commit

Let me make it plain: These two associates (one of whom was educated in France!? note: France has a completely different legal system, and NO death penalty) had no goddamn business mucking around with a death penalty case in Alabama.  

Final remarks
The greatest professional offense here was probably Sullivan & Cromwell's contemptuous disregard of the clear conflict of interest posed by their continuing to represent the defendant, when their own self-interest required them to blame others for what had happened, when the client's own interest, in a death penalty case, required that they accept full responsibility.  Had they done so, the lower courts might will have reinstated the appeal, as even the 11th circuit was only a 2 to 1 decision.  

A secondary professional error by Sullivan & Cromwell was putting two junior attorneys with apparently no real background in criminal law, on to a criminal case in a distant state, where the attorneys had no apparent prior connection or ongoing experience in the courtroom.  And there was apparently no provision made at all for continuing the representation once the associates moved on from the firm.  They didn't even have regular status checks on the case, such as pulling the file every 30 days (required in all litigation cases!) and checking on the case status.  Clearly the firm had no interest in the matter until it turned into a disaster.

All this looks like an amateurish game played for appearance, when the life of a man was at stake.  But don't take my word for it.  Here's some sample comments from lawyers at abovethelaw.com:

We all screw up from time to time but the level of professional misconduct displayed by these colleagues is shocking. As if defending a death row inmate was some kind of game. I also do not understand why a court notice addressed to an attorney who has left the firm was not opened and just returned to sender. That practice asks for a disaster to happen.
* * *
These attorneys' careers would be in the shitter if they so negligently lost a F500 client a few million dollars. They nearly kill this guy and what will the repercussions be? Because, you know, pro bono doesn't really count, let's just let these junior associates cut their teeth on this guy's fucking death penalty appeal.

One wonders if the prestige of a major law firm was considered more important than the preservation of the life of a client.  Actually, I don't wonder.  I know.

Poll

In the Maples case, the court-appointed lawyers were paid $20 per hour in 1997 for out of court work, with a maximum payment of $1,000. Does that seem adequate in a death penalty case?

2%1 votes
44%19 votes
37%16 votes
16%7 votes

| 43 votes | Vote | Results

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Comment Preferences

  •  The system worked in this case (4+ / 0-)
    Recommended by:
    Cartoon Peril, Philpm, PeterHug, Unit Zero

    I'm more concerned with cases where the system doesn't work.  

    One interesting additional meta-issue is the role of judges.  When defense counsel fails to raise expected objections in a capital case, and operates with a general lack of competence, shouldn't the judge have some professional obligation to intervene?

    But nobody's buying flowers from the flower lady.

    by Rich in PA on Thu Jan 19, 2012 at 06:17:57 AM PST

    •  Yes and no. Alabama has abandoned the absurd (10+ / 0-)

      pay of $20/hour for out of court time, with a 50 hour limit, and now pays $70/hour for all time, no apparent limit, which is a huge step forward.  ($70/hour sounds like a lot, and it would be a good take home, but there's overhead, etc. that has to come out of it.)

      But the problem remains of appointment of counsel in the second half of the state proceedings, the post-conviction phase, where errors of trial counsel (and other claims) can be presented to the state courts.  Apparently Alabama continues to refuse to properly fund this, and relies on the continued willingness of firms like Sullivan & Cromwell to assign younger lawyers to these matters pro bono.

      But book learning, which these younger lawyers have, doesn't equal common sense.  No one would ever have thought that lawyers with less than a year's experience in unrelated legal fields could have taken on, unsupervised, a post-conviction relief case in a death penalty case in a distant state.  

      It was the extreme of arrogance for lawyer to make such an assumption, and speaks to the idea that Sullivan & Cromwell regarded this type of work as a cheap playground to spread its cred as a supposed lover of justice.

      As I indicate downthread, this type of arrogance drew Sullivan & Cromwell into a situation where as a result of their need to protect their own reputation, they seem to have thrown the client's case, which brought the client much closer to the death penalty that he would have been had they assumed full responsibility instead of trying to blame others.

      Alabama's continuing to rely on amateurs (and that's the only way to characterize Sullivan & Cromwell in this type of case) may well continue to product similar situations, perhaps not as dramatic in terms of utter failure, but still the tendency is there so long as the local bar is not funded to handle these types of cases.

      You have exactly 10 seconds to change that look of disgusting pity into one of enormous respect!

      by Cartoon Peril on Thu Jan 19, 2012 at 06:47:23 AM PST

      [ Parent ]

    •  Well, kind of. (4+ / 0-)

      Maples will now almost certainly lose his habeas corpus petition (for different reasons) and be executed in the coming years.

      Recall, he's already lost this argument twice in state court.

    •  but that was not a given... close to not (3+ / 0-)
      Recommended by:
      gustynpip, Cartoon Peril, ER Doc

      working... and the problem of inadequate counsel for indigent clients facing serious charges is the wider problem where the system barely functions...

      Pogo & Murphy's Law, every time. Also "Trust but verify" - St. Ronnie (hah...)

      by IreGyre on Thu Jan 19, 2012 at 07:57:12 AM PST

      [ Parent ]

  •  I hope that Maples proceeds (9+ / 0-)

    with a Malpractice suit against S&C.  The opinion itself is devastating to their case, and I am sure that there are any number of ethics experts who would be more than willing to testify about how many ways the "system" at S&C screwed this up.

    A word of advice to S&C.  Settle.  BIG time.

    Ultimately, the only thing that matters with respect to preserving choice is who will be nominating the next Supreme Court Justices.

    by Its the Supreme Court Stupid on Thu Jan 19, 2012 at 06:19:06 AM PST

    •  Right now, S&C would be better off if Maples LOST (9+ / 0-)

      his case, because then they could claim, with some support, that their screw up ultimately made no difference to the case.  That was the essence of the conflict of interest here -- they pulled their punches in the lower court because the firm's reputation stood to suffer if they made the most powerful attack available to the client, which was to blame themselves.

      Malpractice case or not, the S&C personnel who made the decision to proceed with the case after learning of the abandonment of the matter by the former associates, should be facing some serious bar discipline.  I can't recall a case where a firm of the size and prestige of Sullivan & Cromwell has been found to be in violation of professional rules by the Supreme Court.

      One thing I didn't mention was that the Supreme Court named all the lawyers at Sullivan & Cromwell, including the two associates.  When the Supreme Court, or indeed any appellate court, names a lawyer in this type of case, it's a sign that they are highly pissed.

      You have exactly 10 seconds to change that look of disgusting pity into one of enormous respect!

      by Cartoon Peril on Thu Jan 19, 2012 at 06:30:28 AM PST

      [ Parent ]

      •  And, I don't doubt that the (8+ / 0-)

        Disciplinary panels will look at that.  The failure to properly supervise a junior associate is considered particulalry egregious in NY.  The NY Canons make numerous references to that, much more so than in the Model Code.

        Ultimately, the only thing that matters with respect to preserving choice is who will be nominating the next Supreme Court Justices.

        by Its the Supreme Court Stupid on Thu Jan 19, 2012 at 06:35:21 AM PST

        [ Parent ]

        •  The law firm at one point tried to claim the (7+ / 0-)

          associates weren't really doing the work on behalf the law firm, nobody bought that, it just makes them look even worse.

          I wouldn't absolve the associates either, however.  They had a lot of resources at their command, they were well-educated and in their late 20s, not kids, and they took on a death penalty case, yet discarded it without even the most basic compliance with court rules or even basic courtesy.  

          My guess is that they've lawyered up big time.  One of them is a partner at Baker Mackenzie now, the other is a partner at an outfit in Denver, so they'll be able to afford it.

          The conflict of interest is probably the most serious problem for Sullivan & Cromwell, that was something that any lawyer should have spotted immediately, and that was an independent error from the associate's screw up.  Regardless of what eventually happens to Maples, somebody at Sullivan & Cromwell's gonna get slammed for this, and that's entirely appropriate.

          You have exactly 10 seconds to change that look of disgusting pity into one of enormous respect!

          by Cartoon Peril on Thu Jan 19, 2012 at 06:55:18 AM PST

          [ Parent ]

      •  I suggest you should add a short addendum to (3+ / 0-)
        Recommended by:
        Unit Zero, Cartoon Peril, ER Doc

        your fine diary naming all the named lawyers and giving this explanation of how unusual that is for the Supreme Court. It's an important part of the facts.

  •  Some detail on this. (0+ / 0-)

    Maples was entitled to free representation during the trial, he is not entitled a free lawyer during the appeals process.  S&C appointing someone (anyone) was an act of charity, especially given that Maples' appeals have almost no chance of succeeding.  Hence, it's not really surprising they didn't consider this case their highest priority (or even a priority, until it got screwed up)

    As a practical matter, Maples probably just got the best of all worlds... his case (and his execution) was delayed by almost a decade due to his lawyer's bungling, while had it gone forward, his appeal would have been rejected ages ago.

    I'm still with the majority, though.  Even though Maples was essentially wasting the state's time and money, he doesn't deserve to lose his case because his lawyers took off and didn't bother to notify him.

    •  We don't know that. There was no hearing (7+ / 0-)

      on the post-conviction relief case, and it appears that the court simply signed off on the form of order that was sent in by the government attorney.  Given the wretched level of pay and experience of Maples's lawyers at the trial, it should no surprise anyone if they were found to have made mistakes.

      Sullivan & Cromwell had their own reasons for taking on these types of cases, and that was to get good press.  Had the lawyers actually succeeded in the the post-conviction relief case, that would have been a real feather in their caps, and would be trumpeted by the firm.

      Pro bono or no, no lawyer may abandon a client, nor may a lawyer continue to represent any client when the lawyer's own interests are contrary to those of the client.  Sullivan & Cromwell did both of those things here, and I suspect they felt some sort of permission to do so because it was pro bono.

      You have exactly 10 seconds to change that look of disgusting pity into one of enormous respect!

      by Cartoon Peril on Thu Jan 19, 2012 at 07:08:44 AM PST

      [ Parent ]

    •  Your post greatly bothers me. An attorney's (12+ / 0-)

      responsibility to a client remains the same, whether the case is pro bono or not.  To suggest a client should expect and accept poor representation because it's being given as "charity" is unacceptable.

      "If you trust you are not critical; if you are critical you do not trust" by our own Dauphin

      by gustynpip on Thu Jan 19, 2012 at 08:16:33 AM PST

      [ Parent ]

    •  MGross, you seem to be missing the point (4+ / 0-)
      Recommended by:
      Adam B, Unit Zero, DruidQueen, ER Doc

      that once a lawyer has accepted a case (or been appointed by a judge), he has an obligation to perform at the highest possible professional standards, whether or not it is a charity case.  All clients are entitled to equal efforts.

      In practice, of course, many lawyers mainly just run for the money and don't pay much regard to pro bono clients, but that's unethical as hell.

  •  I am with you on almost all of this (5+ / 0-)

    Except this:

    A secondary professional error by Sullivan & Cromwell was putting two junior attorneys with apparently no real background in criminal law, on to a criminal case in a distant state, where the attorneys had no apparent prior connection or ongoing experience in the courtroom.
    Many friends of mine have been successful on habeas cases without having criminal law experience; as I often say, research is research, and once you know how to write a motion, you can handle most areas of the law.

    The problems were in (a) lack of partnership supervision, especially in terms of having a partner on the pleadings, (b) local counsel asleep at the wheel, and (c) the fatal error in not handing off responsibility when leaving the firm.

    The two attorneys in question are now at Baker & McKenzie's Hong Kong office and and Denver's Hogan Lovells office (also, a worldwide firm).

  •  There's a great (6+ / 0-)

    Memorandum (warning, pdf) which compiles all the state requirements for counsel in death penalty cases.  You indicated Alabama's pathetic requirements.  I can't copy the Connecticut requirements because of the pdf but they are extensive -- at least 7 years criminal trial litigation including at least 9 complex criminal cases.  The lawyer had to have been lead or solo in at least 3 murder cases which were brought to completion (penalty phase).  That is a very abbreviated version of quite a lengthy description.

    I know of one attorney in a major law firm who cut his teeth in murder trials by working pro bono as second chair until he could be certified == his main work was environmental criminal defense.  Very few CT cases are death penalty (the most recent being the two murderers in the horrific Petit case).

    Alabama is the primary criminal here -- and I don't mean the clerk.

    Vi er alle norske " My faith in the Constitution is whole; it is complete; it is total." Barbara Jordan, 1974

    by gchaucer2 on Thu Jan 19, 2012 at 07:26:08 AM PST

  •  so what did happen re: supervision? (4+ / 0-)

    Am reading the SCOTUS transcript:

    JUSTICE GINSBURG:  But in the -- in the
    15 practice of a law firm, these were very junior people.
    16 Wouldn't the law firm have to have some involvement in
    17 giving them permission to provide this representation?
    18 I mean, usually there's something like a pro bono
    19 committee and a higher level.  Can -- can such junior
    20 associates just go ahead and say, we want to spend a lot
    21 of our time defending a man on death row?  Wouldn't they
    22 have to get some kind of permission?
    23            MR. GARRE:  I think one would ordinarily
    24 expect that.  And we're not condoning the actions here.
    25 I would say that, at the outset of this litigation,
    1 there were individuals from the Legal Aid Society who
    2 were well familiar with capital cases involved.  They
    3 apparently dropped out of the case.  But we know --
    4            JUSTICE KAGAN:  Well, what do we know about
    5 Mr. De Leeuw's role, Mr. Garre?
    6            MR. GARRE:  What we know is what Mr. De
    7 Leeuw has said, which is that he was involved in the
    8 case at some point.  It's not clear what his involvement
    9 was.  At the oral argument in the Eleventh Circuit, he
    10 said, on page 302 of the joint appendix, that he was --
    11 they were awaiting further action from the court.  So,
    12 we don't know what his involvement was.
    From Alabama's merits brief has more.
    •  I haven't read this, but it is reflected in (5+ / 0-)

      the court's opinion.  The case was not argued by Sullivan and Cromwell at the Supreme Court, by that time they'd gotten the message to stay the hell away.  But Sullivan and Cromwell did take it to the 11th Circuit, and if there were flaws in the record, they were the ones to blame.  Ginsburg called them on it and found it was a conflict of interest for them to have done this.

      Again, the only thing Sullivan & Cromwell could have done was to immediately fall on their sword, accept all blame, and hire an independent lawyer (preferably a prominent local one) to beg the courts in Alabama to reopen the case.  

      You have exactly 10 seconds to change that look of disgusting pity into one of enormous respect!

      by Cartoon Peril on Thu Jan 19, 2012 at 07:39:46 AM PST

      [ Parent ]

  •  Wow. (6+ / 0-)

    I wonder how badly one would have to screw-up to get Scalia's and Thomas' votes too. Scary to think about.

    The thing about quotes on the internet is you cannot confirm their validity. ~Abraham Lincoln

    by raboof on Thu Jan 19, 2012 at 07:41:15 AM PST

  •  If anyone would like to offer some (2+ / 0-)
    Recommended by:
    Timaeus, DruidQueen

    words of wisdom to ms. Ingen-Housz, you can contact her through her email at Baker & McKenzie

    As this is public information, let the chips fall where they may.

    -6.25 -7.08 The glass is neither half-full nor half-empty. The glass is just twice as large as it needs to be. If you play Microsoft CD's backwards, you hear satanic things, but that's nothing, because if you play them forwards, they install Windows.

    by Unit Zero on Thu Jan 19, 2012 at 08:57:14 AM PST

  •  Excellent diary! (5+ / 0-)

    I hope this hits the rec list, which it deserves.

    You've covered most everything well.  I have just a couple of points.

    1. You miss one of the main reasons that big law firms devote some resources to pro bono work.  I believe they primarily do it for public relations, helping to obscure the evil work for the oligarchy that is being done in the back rooms.

    That's a pet peeve of mine.  I'm an idealistic and religious lawyer and I do an awful lot of pro bono work.  I guarantee I do vastly more such work than the average big firm associate.  And yet I never get written up about it in the paper, because I never seek that kind of attention.  But the big firms are regularly in the paper with tales of their supposed benevolence.

    2. Both associates should be disbarred.  Period.  End of story.  I hope somebody is going after them.

    3. The supervising lawyers at Sullivan & Cromwell should be disciplined and perhaps disbarred.  I hope somebody is going after them.

    4. Malpractice actions on behalf of Maples should be brought against S&C and also against both associates.  I'd love to get these facts before a jury.  S&C's malpractice carrier would probably offer at least $1 million to make sure this case doesn't get before a jury.

    5. I like your comment that S&C treated a DEATH PENALTY CASE as less important than a lobby magazine subscription. That's right on.

    6. What does it say about the American legal profession that such a supposed prestigious firm would act so dishonorably?

    •  Thanks, I agree 90%, but let me give (5+ / 0-)
      Recommended by:
      Adam B, Timaeus, DruidQueen, lysias, ER Doc

      my take.

      I definitely agree with your point 1, and I think that's the prime reason this pro bono work is done.  Also, on a related not, there is actually some competition among the major law firms for the maybe 500 to 1000 people who graduate each year from the so-called "top" law schools, and one of the selling points to bring these candidates on board is the firm's pro bono program.  

      2.  I don't see that the associates deserve more than a reprimand from the bar association.  They were new attorneys, in over their heads.  They made some big mistakes, but they were at least trying, at first, to do the right thing.

      I agree that most small time lawyers do a hell of a lot of pro bono work and get no recognition for it, while these huge firms constantly award themselves trophies.  Meanwhile the public defenders and the non-profit legal services providers work for very little all the time and are largely unheralded.

      3.  The real malefactors here were the partners at Sullivan & Cromwell who decided to continue the representation when it should have been clear to anyone that they had committed malpractice.  As a result they pulled their punches, like a bought-off boxer, and SCOTUS found that they did.  Whoever did that should be disbarred, not just because of the conflict, but because of the seriousness of the case, and because of the ample experience of the people at Sullivan & Cromwell who made the decision to proceed.  

      4.  Malpractice action would require proof of damage caused by the error, and here's the point -- Sullivan & Cromwell, and the associates WALK FREE if Maples death penalty stands after remand, on the no harm, no foul rule.  This is the whole problem with the conflict of interest!

      5.  Obviously Cromwell & Sullivan treated this DP case as a little training ground and publicity machine for its junior associates -- an insult to every lawyer who ever worked hard for a client, and there are many of those.

      You have exactly 10 seconds to change that look of disgusting pity into one of enormous respect!

      by Cartoon Peril on Thu Jan 19, 2012 at 09:43:17 AM PST

      [ Parent ]

      •  Interesting discussion. (2+ / 0-)
        Recommended by:
        Cartoon Peril, DruidQueen

        In light of what you've said here, I think I got it wrong in saying the associates should be disbarred while the supervising lawyers should be disciplined or perhaps disbarred.

        The culpability of the senior lawyers is indeed much more serious, and at least one of them should be disbarred.

        But I'm not sure a reprimand is enough here for the associates, since it was a death penalty case.

        Except, maybe they were told, or had good reason to assume, that the firm's pro bono organization would pick up for them when they left.

    •  Pro bono (3+ / 0-)
      Recommended by:
      Timaeus, Cartoon Peril, ER Doc

      Also allows younger associates to do substantive legal work, invovling client contact, pleading drafting and court appearnces, rather than superivisng document review.

  •  I will look with interest at what happens now. (3+ / 0-)
    Recommended by:
    Cartoon Peril, DruidQueen, ER Doc

    If the usual poor schleb's who do this type of work had screwed the pooch this badly, all heads would role.  It will be illustrative of the double standard when nothing happens or some sacrificial goat takes the pipe a few months from now, but if you think something serious will happen to S & C, I would very much like to discuss with you a bridge, not far from their offices, that I can let you have for very short money.

    •  Normally I'd agree that S&C would have big firm (3+ / 0-)
      Recommended by:
      Timaeus, lysias, ER Doc

      immunity, but here the SCOTUS found they had a conflict of interest.  That's just about what it takes to make anything stick to these vultures.

      You have exactly 10 seconds to change that look of disgusting pity into one of enormous respect!

      by Cartoon Peril on Thu Jan 19, 2012 at 09:45:08 AM PST

      [ Parent ]

  •  Whatever was the 11th Circuit thinking (2+ / 0-)
    Recommended by:
    Cartoon Peril, ER Doc

    when they ruled against Maples?

    The influence of the [executive] has increased, is increasing, and ought to be diminished.

    by lysias on Thu Jan 19, 2012 at 11:43:30 AM PST

    •  here goes (3+ / 0-)
      Recommended by:
      lysias, Cartoon Peril, ER Doc

      Basically, that it was Maples' own fault:

      Maples never filed any pleadings pro se but had three attorneys to whom the clerk sent notice. Maples relied exclusively on his counsel and made no attempt to deal directly with the state trial court or its clerk, or to keep himself apprised directly of the developments in his case. Maples never requested the clerk to give him personal notice in addition to his counsel. There is no basis here upon which to infer that the trial court clerk was negligent or that the clerk even knew Maples wanted to be personally informed of the court's orders, much less that it assumed a duty to notify Maples personally in prison.

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