Agency and equity: why do we blame clients for their lawyers' mistakes?

• Author: Liptak, Adam

If you were to ask a child whether it would be fair to execute a prisoner because his lawyer had made a mistake, the answer would be no. You might even get a look suggesting that you had asked a pretty stupid question. But judges treat the issue as a hard one, relying on a theory as casually accepted in criminal justice as it is offensive to principles of moral philosophy. (1)

This theory holds that the lawyer is the client's agent. (2) What the agent does binds the principal. But clients and lawyers fit the agency model imperfectly. Agency law is built on the concepts of free choice, consent, and loyalty, and it is not unusual to find lawyer-client relationships in which some or all of these elements are missing.

Let us put to one side the ideal case: a sophisticated client with money. That client presumably chooses a good lawyer, monitors and controls the lawyer's work, and fires her if she turns out to be disloyal or incompetent. The lawyer in that case really is the instrument of her client's will, and so the client may fairly be tagged with the lawyer's errors. (3)

Now consider a client who is poor, uneducated, mentally troubled, scared, or imprisoned--or perhaps all of these things at once. And then add to this mix a lawyer who is not retained but a volunteer or assigned by the state. (4) Does it still make sense to consider such a lawyer an authentic agent of the client?

The splendid reviews collected here are all concerned with aspects of what justice means, and they generally take for granted that courts can sort things out. But that presupposes competent advocacy that actually advances the interests of those involved. For instance, both Habeas for the Twenty-First Century--a valuable book by Nancy J. King and Joseph L. Hoffman--and Eve Brensike Primus's sometimes skeptical review of it share the common ground that, as Professor Brensike Primus puts it, "there is a crisis of counsel" for indigent criminal defendants. (5) In 1962, one year before the Supreme Court said that the government must provide lawyers to poor people accused of serious crimes, (6) the Court decided Link v. Wabash Railroad Co., (7) a foundational case about agency in the context of lawyers and their clients. The question in Link was whether a civil case could be dismissed because a lawyer had failed to prosecute it diligently. (8)

"There is certainly no merit to the contention that dismissal of petitioner's claim because of his counsel's unexcused conduct imposes an unjust penalty on the client," the second Justice John Marshall Harlan wrote confidently for the majority in the 4-3 decision: (9)

Petitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent. Any other notion would be wholly inconsistent with our system of representative litigation, in which each party is deemed bound by the acts of his lawyer-agent, and is considered to have "notice of all facts, notice of which can be charged upon the attorney." (10) This statement has since taken on the air of a first principle. But the decision was a close one, and Justice Hugo Black decried what he called a "mechanical rule" that "ignore[s] the practicalities and realities of the lawyer-client relationship" and can result in a "deplorable kind of injustice." (11)

"[I]t seems to me," Justice Black wrote, "to be contrary to the most fundamental ideas of fairness and justice to impose the punishment for the lawyer's failure to prosecute upon the plaintiff who, so far as this record shows, was simply trusting his lawyer to take care of his case as clients generally do." (12) Justice Black went on:

If a general rule is to be adopted, I think it would be far better in the interest of the administration of justice, and far more realistic in the light of what the relationship between a lawyer and his client actually is, to adopt the rule that no client is ever to be penalized, as this plaintiff has been, because of the conduct of his lawyer unless notice is given to the client himself that such a threat hangs over his head. Such a rule would do nothing more than incorporate basic constitutional requirements of fairness into the administration of justice in this country. (13) Link involved a paying client and a civil case. A year later, the Supreme Court decided Gideon v. Wainwright (14) and extended the principles that troubled Justice Black in Link, more or less, to cases involving lawyers appointed to poor people in criminal and habeas cases. (15) The decades passed, and no one seemed to give Justice Black's concerns a lot of thought. (16)

In 1998, more than thirty-five years after the Link decision, the Seventh Circuit considered whether it should affirm the dismissal of a [section] 1983 lawsuit (17) brought by a prisoner represented by a court-appointed lawyer. (18) The prisoner claimed that his jailers had violated his civil rights by denying a medical request for, among other things, a low bunk. (19) As in Link, the lawyer had failed to meet deadlines, and the case had been dismissed for want of prosecution. (20)

In other words, the case was perfectly routine--except that, as Judge Diane R Wood wrote for a unanimous three-judge panel, there were questions about whether the appointed lawyer should be considered his client's agent. This, she said, was an issue that no court had yet considered:

The legal question before us is one of first impression: do the standards for dismissing an action for want of prosecution in a case where an indigent plaintiff has court-appointed counsel, or counsel recruited by the court to serve in a pro bono capacity, vary at all from the standards that would apply if counsel were retained? (21) Here was "the classic problem of the faithless agent," with the particular wrinkle that "the client had no voice in choosing the lawyer" and, indeed, had a lawyer assigned to him "who might as well have been a potted plant." (22) In general, Judge Wood wrote, "courts do not distinguish between retained and appointed counsel." (23) And then she had it both ways. On the one hand, she said, courts should apply general principles applicable to all lawyers in deciding whether severe sanctions may be meted out to clients when their lawyers make terrible blunders. (24) On the other hand, Judge Wood suggested, the settled understanding that all lawyers are their clients' authentic agents was worth reexamining. "The court must bear in mind, when counsel has been appointed or recruited for a [section] 1983 action," she concluded, "that the usual assumptions about the agency relationship between the lawyer and client must be relaxed." (25)

Relaxing those assumptions, she wrote, might involve directly notifying the client of impending dismissal. (26) Though Justice Black thought this step elementary, Judge Wood said that such notification was not an "ironclad requirement." (27)

The question I want to explore in this brief essay is, why not? What would be the harm...