Wednesday, September 11, 2019

Bait And Switch: Client Got "Lighter Wallet" And Worse Result

The Indiana Supreme Court suspended an attorney for three years without automatic reinstatement

In 2010 “Client” was charged with murder after fatally stabbing a man. Client, whose English language skills were extremely poor, maintained he acted in self-defense. An experienced public defender initially represented Client, assisted by an interpreter. As the trial date approached, the public defender and deputy prosecutor were negotiating a plea deal that contemplated a plea to voluntary manslaughter and either a fixed or maximum sentence of 30 years. The public defender believed that Client would be unable to prevail on a self-defense argument but that he had a compelling case in mitigation.

During this time, Respondent’s nonlawyer assistant, Joseph Everroad, ingratiated himself with Client’s family, told them the public defender would “sell out” Client, and – together with Respondent – persuaded them that Respondent and Everroad could either successfully pursue a self-defense argument at trial or otherwise obtain a better plea deal for Client. Client’s family hired Respondent and paid him a $6,000 retainer, $1,000 of which was earmarked for an interpreter. The trial date was continued following Client’s change in representation.

Respondent had not previously handled a murder case and had little or no experience with major felonies. Neither Respondent nor Everroad had the language fluency to effectively communicate with Client about his case. Respondent did not hire an interpreter. Respondent did not meet with Client at the jail and did little or no work on the case, instead delegating these tasks to Everroad. During one meeting with Client, Everroad brought an untrained and unpaid woman who needed community service credit for her own criminal conviction to serve as an interpreter, and through that woman Everroad attempted to assure Client he had a strong self-defense case. Everroad did not bring an interpreter to other meetings with Client. Everroad explained the purpose of these meetings was simply to “just keep [Client] happy so [Respondent] could get the rest of his money out of the client” and added “we didn’t even talk about the case. We were talking about other things. Cars – things like that.” (Tr. at 94, 97).

Shortly before the trial date, Respondent viewed post-mortem photographs of the victim for the first time and came to believe a self defense or voluntary manslaughter strategy at trial would be untenable. At a final pretrial conference, the State offered a plea to voluntary manslaughter with a fixed sentence of 40 years. Respondent attempted to accept the offer without consulting with Client, but after Client complained, the court indicated the matter would proceed to trial.

Trial commenced three days later, on April 11, 2011. Respondent was not adequately prepared and did not have a defense interpreter on hand to communicate with Client. During a recess, using Client’s friend as an interpreter, Respondent communicated the State’s latest offer (a plea to murder with a fixed term of 45 years) to Client and advised Client to take the deal because his defense was weak. Client accepted the offer and pled guilty to murder with a fixed sentence of 45 years.

During the Commission’s investigation, Respondent falsely told the Commission that Client was fluent in English and that he had visited Client in jail several times.

The court rejected attacks on the findings below

Respondent first challenges the hearing officer’s finding that had Client remained represented by the public defender, “at the very wors[t]” Client would have been convicted of voluntary manslaughter and received an executed sentence of 30 years. Respondent correctly observes that this outcome had not yet reached the point of formal acceptance by the parties and the trial court, and he points to earlier and subsequent offers made by the State for a 40-year sentence, but Respondent’s argument misses the forest for the trees. Not only does the evidence clearly reflect a 30-year sentence had been placed on the bargaining table by the State and was reasonably within reach for Client immediately prior to the change in representation, but Respondent’s attempt to manufacture uncertainty on this point glosses over the fact that either of these case outcomes – 30 or 40 years for voluntary manslaughter – would have been better for Client than the outcome obtained through Respondent’s woefully inadequate representation.

Prior discipline affected the sanction

The instant case – involving what the hearing officer aptly described as a “bait and switch” representation – is by far the most egregious of Respondent’s four disciplinary cases. Prior to Respondent’s involvement, Client was being capably represented by an experienced public defender who was meaningfully consulting with Client and who was on the cusp of achieving on Client’s behalf a negotiated case resolution carefully crafted to account for the relative strengths and weaknesses of Client’s case. However, Respondent and Everroad – exploiting inaccurate stereotypes about public defenders and the particular vulnerability of defendants and their family members to unrealistic expectations – lured Client away at the last minute with the promise that a better outcome could be had, for a price. That promise was at best uninformed and at worst outright false; and even a comparable outcome became impossible to achieve when Respondent neglected the representation after collecting his fee. In the end, switching from the public defender to Respondent earned Client a lighter wallet, comprehensively shoddier legal representation, weakened bargaining power, the inability to meaningfully participate in his own defense, and ultimately a higher-level conviction and several more years in prison than he otherwise would have received. Whether measured in terms of process or outcome, the prejudice suffered by Client as a result of Respondent’s misconduct was severe.

Justice David dissented in favor of disbarment.

We had this report on one of the prior cases. (Mike Frisch)

Bar Discipline & Process | Permalink


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