Monday, January 26, 2015
Pursuant to the Supreme Court's opinion in Strickland v. Washington, a defendant proves an ineffective assistance of counsel claim by establishing (1) that counsel’s performance "fell below an objective standard of reasonableness" as measured by "prevailing professional norms;" and (2) prejudice, i.e., "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Under Strickland's first prong,
a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."
It is well established that the disbarment or suspension of an attorney after he represents a client does not per se lead to a finding of unreasonableness under Strickland's first prong unless the disbarment or suspension was causally related to his representation of the client. See, e.g., Padgett v. United States, 302 F.Supp.2d 593, 603 (D.S.C. 2004). But, is the presumption of reasonableness removed or maybe even flipped if a client's attorney is subsequently suspended or disbarred based upon relatively contemporaneous misconduct? Let's take a look at the opinion of the Ninth Circuit in United States v. Soto-Lopez, 475 Fed.Appx. 144 (9th Cir. 2012).
In Soto-Lopez, Carlos Soto-Lopez brought a a habeas petition in which he asked the Ninth Circuit to vacate his sentence for illegally re-entering the United States because he received the ineffective assistance of counsel. Soto-Lopez was offered a "fast-track" plea deal, pursuant to which he could plead guilty in exchange for a sentence of 48 months incarceration. According to Soto-Lopez, however, he rejected that plea deal because his attorney, Christian De Olivas, represented to him that he could secure a 24 to 30 month deal. In the end, De Olivas was unable to secure such a deal, and, with the "fast track" plea deal off the table, Soto-Lopez eventually pled guilty without any plea deal, resulting in a sentence of 77 months incarceration and 3 years of supervised release.
In assessing Soto-Lopez's ineffective assistance claim, the Ninth Circuit began by noting that
De Olivas had little basis for recommending that Soto–Lopez reject the fast-track offer beyond a desire to persuade Soto–Lopez to retain his services in place of the Federal Defenders. There is no evidence that De Olivas had any experience with persuading prosecutors in the Southern district to improve plea agreements, no indication that De Olivas knew of any legal defense that Soto–Lopez could utilize at trial, and no evidence that—at the time he advised Soto–Lopez to reject the plea offer—De Olivas knew of any reason Soto–Lopez could reasonably expect the government to offer him a 24– or 30–month plea deal when he faced a minimum 77–month sentence under the Guidelines.
The court then added that
These facts must be considered in combination with a petition filed by the Standing Committee on Discipline for the Southern District ("disciplinary petition") that led to De Olivas's suspension during the pendency of Soto-Lopez's sentencing, and which details De Olivas's systematic unprofessional conduct in the Southern District of California. While "the fact that an attorney is suspended or disbarred does not, without more, rise to the constitutional significance of ineffective counsel under the Sixth Amendment," United States v. Mouzin, 785 F.2d 682, 696-97 (9th Cir.1986), "counsel's disbarment or suspension may raise doubts about his competence," United States v. Ross, 338 F.3d 1054, 1056 (9th Cir.2003). The disciplinary petition charges De Olivas with unprofessional conduct in other cases, including making false statements, and conduct that "plac[ed his] financial motivations above the interests of his client and expos[ed] his client to prejudice and delay." The district court itself noted at sentencing that Soto-Lopez "probably [was] the victim of why [De Olivas was] no longer practicing." Under Strickland, we must try "to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689, 104 S.Ct. 2052. When the serious doubts about De Olivas's professionalism and honesty occasioned by his contemporaneous conduct are combined with the facts of his representation of Soto-Lopez, the record supports Soto-Lopez's claim that De Olivas provided him ineffective assistance of counsel.
In other words, an attorney's subsequent suspension or disbarment based on relatively contemporaneous misconduct removes and maybe even flips the presumption of reasonableness under Strickland's first prong. I think this makes sense. As I've noted elsewhere, only about .08% of attorneys are disbarred. And while I can't find any statistic on the percentage of lawyers who get suspended, I do know that "only about 1 percent of lawyers accused of misconduct are suspended from practice or disbarred." Sharon Tisher et al., Public Citizen, Inc., Bringing the Bar to Justice: a Comparative Study of Six Bar Associations.
Simply put, most attorneys are able to comply with ethical rules and deserve deference based on their education and experience. Conversely, when an attorney is suspended or disbarred, it "raise[s] doubt" about his performance in other cases during the same time period. The same decisions that might be chalked up to "trial strategy" with a regular attorney might lead to a finding of unreasonableness when made by a subsequently suspended or disbarred attorney.
Fans of the Serial Podcast might be wondering how this might play out in the case of a Maryland defendant whose attorney agreed to disbarment less than a year after representing him in the face of a "record number" of complaints that she engaged in relatively contemporaneous misconduct, including failing to do the work she was paid to do and lying about it.
I couldn't find a Maryland case directly on point, but the opinion of the Court of Appeals of Maryland in Jones v. State, 616 A.2d 422 (Md. 2002), sort of reaches the same conclusion by inference. In Jones, a defendant claimed that he per se received the ineffective assistance of counsel because his attorney was suspended after failing to pay his assessment to State Bar Clients' Security Trust Fund. In rejecting this argument, the court held "that default in payment of the requisite assessment and resulting decertification differs from a disciplinary suspension or disbarment; it has no connection with the lawyer's character, intellectual acuity, or dedication to the client's interests." The clear inference from this is this a disciplinary suspension or disbarment does have some connection to the lawyer's character, intellectual acuity, or dedication to the client's interests and should be considered as part of an ineffective assistance claim.