February 25, 2007
The Unbelievably Foolish Prospect of Shutting Down Volunteer Out-of-State Lawyers in Louisiana's Post-K Criminal Defense System
Posted by Alan Childress
The Louisiana Supreme Court issued a post-storm ruling allowing non-Louisiana lawyers to offer pro bono indigent-defense representation under the oversight and supervision of a Louisiana-licensed lawyer. It's like routine pro hac vice admission but without limiting it to a few cases. That move has saved the day for a teetering criminal defense system in New Orleans. Now a trial judge has ruled that 'supervision' means physical co-presence in court by the in-state mentor--for every hearing or court matter. The story and news link here from a nice blog by one of those selfless volunteers.
This ruling could kill the efficacy of the wonderful volunteerism on which the system's very survival lately has depended. The order is on appeal now, and I hope the understandable requirement of supervision is interpreted in a more realistic fashion. If a particular attorney shows up and does not know what he or she is doing, there is nothing in the original ruling to prevent that judge from requiring more supervision of that attorney. But a blanket prohibition on independent presence in court makes the volunteers, many of whom have years of defense experience, nearly redundant and surely would kill the incentives for such people to sacrifice and go to New Orleans. Those volunteers should be treated as heroes--actually welcomed as liberators if you will--rather than disrespected in this way, in some kind of hyper-deference to the formal requirement of an in-state license.
As someone who lived there for 17 years before Katrina, and will return, I have to say that I am saddened but not surprised by the insularity evidenced by such a ruling. I know a Louisiana native who does not think you can find a good restaurant in San Francisco. I have observed countless judges who think the way Louisiana does things (has always done things) is as natural as breathing while every other state is just crazy; millions of non-frenchmen, they think, can be wrong. Outsiders not so steeped can be viewed with skepticism and seem to prod a disabling defensiveness.
I don't think this perspective will ever change, and is not necessarily unique to Louisiana (other states are ridiculous about their in-state licensing rules in other ways). But it should be put on hold a little longer to survive the crisis in the criminal courts until they are adequately funded and staffed.
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Maybe this would be a good time for Louisiana to look back at its roots and cite a European opinion. Germany tried to do the same thing to foreign lawyers representing foreign defendants in German courts. The ECJ shut it down and more or less agreed with the donotpassgeaux's feelings. See Case 427/85,  ECR 1123 (striking down as too broad a requirement that a German lawyer to be present at ALL oral hearings and all prison visits with the defendant).
Posted by: Jack S. | Feb 25, 2007 8:54:11 AM