The impact of problem solving on the lawyer's role and ethics.

• Position: Panel Discussion

PANELISTS

Judy H. Kluger New York County Criminal Court

Pat Murrell Leadership Institute for Judicial Education

Jeffrey Tauber Center for Problem Solving Courts

Steven M. Zeidman Fund for Modern Courts

Alex Calabrese Red Hook Community Justice Center

Susan Hendricks Legal Aid Society

Judy H. Kluger New York County Criminal Court

JUDGE KLUGER: In 1992, in preparation for sitting in the Midtown Community Court, which was one of the first problem-solving courts in the country, I took a trip to Dade County, Florida, to see a drug court. It had been created in 1989 with the support of Janet Reno, who was then the District Attorney of Dade County.

The concept of the court was simple, although at the time it was considered revolutionary: instead of incarceration, place defendants in drug treatment and have that treatment monitored by a judge.

I entered a courtroom that looked like any other courtroom and watched as prosecutors, who are usually eager to wrap up convictions by plea or trial, agree to place defendants in drug treatment and then dismiss the case after successful completion.

I saw defense attorneys, whose strategy is usually to get the best deal as early on in the proceedings as they could, agree to a year or more of intensive drug treatment, continuous judicial monitoring, repeated drug testing, all the while with the threat of jail looming over the defendant's head, all in the hope that this defendant will be the defendant who makes it out of the revolving door.

I observed defense lawyers, prosecutors, and judges monitor treatment together, discussing appropriate sanctions for failure and rewards for progress.

I saw prosecutors congratulating defendants who were doing well and defense attorneys agreeing that maybe a few nights in jail would be just the thing to make sure that their client stays clean.

And, of course, there was all that applause for the drug court graduates by the whole courtroom, something I have to admit I am still not quite used to.

It seemed to me to be a topsy-turvy world, and certainly unlike anything I had experienced as a lawyer or a judge.

Well, fast-forward ten years to 2002. There are over 500 drug courts nationwide, as well as domestic violence courts, mental health courts, community courts, parole reentry courts, all focused on doing more than just adjudicating the facts of the individual case, but rather trying to address the underlying problems that brought the defendant, this particular individual, before the court.

Courts have become involved in changing behaviors of defendants in hopes of not only helping them, but helping the communities in which they live. This has caused all of us, judges and lawyers, to reevaluate the roles that we play in the process, and of course has raised many implications about our role and ethics.

Should a defense attorney be concerned with issues broader than their individual client? How do you uphold your responsibility to zealously represent your client when you are considered part of a team? Should you care about how the outcome of a case affects your community? What about Fourth Amendment rights? Are you participating in a process that coerces your client to opt-in too early before you get a chance to investigate the facts of the case?

I think it is important to address these questions in the context of what the criminal justice system in a large urban community looks like today.

I am reminded of a TV commercial that aired several years ago, where the driver of a car said, "This isn't your father's Oldsmobile." Well, this isn't our Founding Fathers' court system either. We live in a world where local courts handle hundreds of thousands of cases a year and the vast majority are disposed of by plea bargains. Three out of four defendants arrested in large urban areas test positive for drugs, and many will recidivate very shortly after they leave jail.

The article in today's paper that Judge Newton mentioned, which follows a defendant from his release from Rikers Island after eight months in jail for selling drugs--he leaves with $3.00 and a Metro card. By 10:15, he is offered marijuana, and by the afternoon, he is offered his old job back, that of selling cocaine. The next time he will be arrested--and you can be assured that he will be arrested again--I think we can protect this defendant's individual rights and still give him and the community something better than eight months and a Metro card.

But how do we work through the concerns of advocates and their roles in the courts? I suggest several solutions.

First, lawyers have to remember that they do not stop being advocates in problem-solving courts. In fact, quality lawyering matters, and it is crucial in these courts. I think some of the institutional public defenders make a serious mistake when they assign their least-experienced, and sometimes their least-able, lawyers to these courts. They erroneously think that strong skills are not important. How wrong they in fact are.

The atmosphere in problem-solving courts is, by design, one of cooperation and consensus building. This, I believe, ultimately benefits the defendant. The challenge for defense lawyers is to take care that cooperation does not turn into capitulation, and that even after a decision to enter a drug court is made, there are serious issues to address and negotiate in drug courts or in problem-solving courts in general, such as appropriate type of treatment, length of treatment, sanctions for relapse, ultimate sentence if the defendant fails, what is the definition of failure and what is the definition of success, how long is a defendant brought back to court, how long is he monitored?

Prosecutors also have to be mindful of their roles and obligations and ethical responsibilities. Several years ago, I participated in a roundtable discussion, sponsored by the Department of Justice, that addressed this issue of the lawyer's role in problem-solving courts. A law professor recounted how when she visited with a group of students in drug court and was invited to participate in a treatment conference, they all sat down, and one of the students said, "Where is the defense lawyer?" She was the only one who noticed that he was missing. The oversight was immediately corrected. It did not appear to be intentional. But it is certainly a good example of how participants can become too relaxed and reinforces the need for vigilant advocacy.

The judge certainly should have noticed that the lawyer was missing. The DA should have never participated in an ex parte discussion. And where was the defense attorney at this scheduled court appearance?

I have recently seen a disturbing trend in some problem-solving courts: lawyers who, when their clients are doing well, let their guard down and sometimes do not appear for routine monitoring sessions. This, I believe, is unacceptable. There should be no time when your client is before the court and you are not present.

I think the best way to meet the challenges of advocacy and judging in these courts is by education and training for lawyers and judges and by planning collaboratively in setting up these courts. Make the tent as big as possible and invite everyone in. It takes a lot of work, but the results are extremely worthwhile.

One of the things we have learned in the last ten years is that not only do you need to be inclusive for political reasons when you set up these courts, but people who are included can provide insight, ideas, and resources that may not otherwise have been available.

We recently opened an integrated domestic violence court in Bronx County here in the City, where we are merging the work of the Criminal, Family, and Supreme courts, where families have domestic violence cases pending in at least two of these courts.

There were many issues to address: diverse systems, staff, laws, procedures, and rules; different lawyers for plaintiffs, defendants, victims, and children; we had concerns about merging cases; and lawyers had concerns about litigating different cases from different courts before the same judge.

Victim advocates worried, on the one hand, about diluting the criminal case by having it heard in the same court as a civil matter; and on the other hand, worried that victims who did not want to testify in a criminal case might be coerced to do so when they appeared on a civil matter.

The planning process took almost a year and included everyone affected. But the work was worth it. The court has been opened since October, and we continue to monitor how it operates, make changes, listen carefully to the concerns and recommendations of the lawyers and the judges who work there.

I think it is safe to say that problem-solving courts are here to stay. The challenge to the legal community, I think, is to keep a watchful eye and a critical eye, to participate in the planning process, and to educate lawyers and students to understand, embrace, and adapt to change.

Pat Murrell Leadership Institute for Judicial Education

I come at this situation from a somewhat different perspective than most of you do. My knowledge of problem-solving courts comes from the literature, conversations, and observations, rather than participation, and I am particularly grateful for the work that Bruce Winick has done to inform my thinking on this topic.

What I would like to do in my time this afternoon is to share with you some ideas about the kind of Judicial Branch education that I think would be useful to a person who is interested in therapeutic jurisprudence or problem-solving courts. And I certainly would not limit this kind of education to those groups, but I think it would be particularly appropriate for those. This, again, comes from my experience with two SJI-funded grants, the Leadership Institute, and an Institute for Faculty Excellence as well.

First, let me list some of the ubiquitous descriptors that appear in the literature and that I have heard in the conversations...