In what is now a three part blogpost, I have covered several kinds of sh*t that I end up having to clean up after when incompetent, lazy, or counsel who did not have or take enough time on a matter.
The last classification that I will discuss my disdain for cleaning up after is wasteful sh*t, which may be the most offensive of all for which I must take corrective action.
A co-counsel I had years ago from the Navy (and one exceptional trial lawyer) called them “pretrial fines.” This was his term for the penalty military members enact on themselves for hiring inept civilian defense counsel. I have to admit I chuckled the first time he coined this expression to me. But it is hardly a laughing matter.
As I have more than once expressed in a blog post, not all civilian defense counsels are created equally. [Hint, not every lawyer is either.] But *at least* the poor advice mentioned above came from “free” resources. Even if there were lost opportunities or decisions made that deeply impact the trajectory of a given case, the clients did not pay out substantial sums of money for deficient and even derelict advice.
There are way too many examples that I can provide. I receive calls from around the country from uniformed defense counsel who recognize their “first chair” civilian counsel is taking action that is even unethical. It is partly what motivated me to start the non-profit to train uniformed counsel. Setting those aside, I will provide an example from 2014.
I remember receiving a call for a consult late one evening when I was on the east coast defending a US Marine’s sexual assault trial. The gentleman on the phone was a junior Officer who needed help on a reprimand rebuttal. The fact pattern was fairly complex and centered on accusations he had engaged in intercourse with his subordinate’s wife and then berated him about it at work, creating a hostile working environment. At least, those were the general allegations. I advised him to ask for an extension in his response because I needed to focus on my USMC sexual assault trial.
A month or two goes by and I hear from the junior Officer again. He elected not to ask for an extension and found “another lawyer to help him.” There’s a reason I use quotation marks around all of those words.
The representation the attorney had given this client was abysmal. Rather than ghost-writing the submission, it was all over her letterhead. Gosh, does anyone think the commander wants to hear from the lawyer? [There are certainly occasions when I throw in a legal analysis memo, but typically the best practice is to help facilitate a response to write in the voice for the client, to help him plead his case.] Leave the law firm letterhead for other purposes. I also learned that the attorney with her paralegal cold called the alleged victim (we will leave that for another day) but when asked point blank why she had made up the allegations, the alleged victim said she could not talk about it and hung up the phone. Hey, that’s not a denial! I start combing through the submission for some documentation of this arguable admission. It wasn’t there. The attorney had not used it.
The client sent a communication to his prior civilian counsel (their contract ended upon submission of the reprimand response) that he would not continue the relationship, he asked for release of his file, and asked for cooperation for me to obtain an affidavit from the paralegal who witnessed the quick hang up from the putative victim.
Radio silence. For weeks. She ignored my emails, messages with her staff, and voicemails.
Finally, I gave the client some language to use about a potential complaint to the state bar.
Suddenly, we received responses. Isn’t that something.
The representation this attorney gave to my later client was atrocious. Ignoring requests for supporting the client after the relationship had ended is unconscionable. And speaking of unconscionable, this attorney had only been a lawyer by this point for about 9 months if memory serves me. But of course, you would not know that from the lawyer or her website. You see, she had served for many years as a paralegal to a civilian defense attorney and believes (present tense) it is appropriate and ethical to represent HIS cases as her own. On her website. Touting her experience.
Gets my blood boiling all over again.
Thankfully, we were able to clean this one up too. The board voted that the client had not committed the misconduct.
It shouldn’t be as hard as it is to represent clients when the client relied on bad advice from other lawyers. Fundamentally, the duty of competency trumps all. Whether bred from inexperience or ineptitude, or worse from blatant disregard, incompetence in the guise of legal advice is unforgivable. How many military clients have career ending consequences because they never found someone to clean up after the other attorneys’ sh*t? The thought of it is entirely overwhelming.
To ensure you have the most effective representation, there are screening tools available. Remember that it is more important to have an advocate who has both competence and capacity than it is to hurt anyone’s feelings or to try to save money.
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