Privileging Public Defense Research
| Citation | Vol. 69 No. 3 |
| Publication year | 2018 |
Privileging Public Defense Research
Janet Moore
Ellen Yaroshefsky
Andrew L.B. Davies
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Empirical research on public defense is a new and rapidly growing field in which the quality of attorney-client communication is emerging as a top priority. For decades, law has lagged behind medicine and other professions in the empirical study of effective communication. The few studies of attorney-client communication focus mainly on civil cases. They also tend to rely on role-playing by non-lawyers or on post hoc inquiries about past experiences. Direct observation by researchers of real-time defendant-defender communication offers advantages over those approaches, but injecting researchers into the attorney-client dyad is in tension with legal and ethical precepts that protect the very communication that is being studied. This Article discusses these problems and some responsive strategies. After assessing the available alternatives, the Article argues for judicial enforcement of an evidentiary privilege that protects and promotes empirical research on this high-priority topic.
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Empirical research on public defense is a new and rapidly growing field.1 The study of effective defendant-defender communication is emerging as a top priority.2 There are many reasons to prioritize communication as a research topic. The Supreme Court of the United States has acknowledged that communication is a critical component of the right to counsel.3 Yet recent studies document intense frustration with the amount, timing, and quality of communication between people who face criminal charges and the government-paid lawyers who represent them.4
Defendants who participate in these studies describe feeling unheard, silenced, and effectively erased from resolving their own cases.5 In the words of one participant, "[T]hey just come down there with a paper . . . and he's tellin' you 'We gonna plead this.' Wait a minute, dude, we ain't even talk. 'And if we plead this the judge already said that he would do this.' When did that happen?! Where was I at?!"6 Data from another study indicate that abysmal experiences degrade aspirations for improvement: "I think that you should be like, by law, allotted a minimal amount of time with your attorney. Not three minutes . . . you're allotted ten minutes to talk to this guy prior to your appearance in court."7
Defenders express similar frustration. When asked to identify their top-priority empirical research questions, they zeroed in on barriers to communication. Their questions were wide-ranging and evocative. Examples include: "Why don't my clients think I'm a real lawyer?"; "How do you deal with hostile clients who do not like you?"; "What can I do to get my clients to listen to my advice?"; "How many defendants are afraid
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to tell our staff the truth?"; "[How can I] build trust . . . in order to avoid . . . surprises at trial?" and, in a mirror image of comments from the earlier study with defendants, "How can we ensure the client doesn't feel erased from the process?"8
However, these new studies reveal more than mutual frustration. They also reveal a shared awareness of the connection between communication, trust, case investigation, and successful advocacy.9 The studies reveal a hunger not only for better communication, but also for research on strategies to achieve it.10
Part II of this Article discusses these and other reasons for prioritizing research on attorney-client communication in public defense. Part III describes the theory, methods, and findings of past studies and sketches a plan for future inquiry. Part IV tackles the complicated ethical and evidentiary issues implicated by such research and offers some responsive strategies. The alternatives are wide-ranging; for example, they include the use of machine-learning avatars in simulated defendant-defender communication.11 After canvassing the alternatives, this Article argues for judicial enforcement of an evidentiary privilege that covers empirical research on public defense. Privileging public defense research is an optimal strategy for promoting greater understanding of a critically important but understudied subject.
There are many reasons to focus empirical research on attorney-client communication in public defense. The first involves the pivotal interests at stake. The right to counsel is "fundamental"12 because it is "necessary to insure . . . life and liberty" against the exercise of concentrated government power.13 Criminal prosecution and sentencing also threaten property and reputation; collateral consequences of conviction block access to jobs, housing, education, voting, jury service, and other opportunities for full participation in a democratic society; all of these impacts fall disproportionately upon poor people and people of color.14
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Just as the criminal defendant's right to counsel is fundamental to the functioning of a healthy democracy, so too is attorney-client communication an essential component of the right to counsel.15 This is so as a matter of law because the constitutional right to counsel requires lawyers to act reasonably based on existing attorney performance standards.16 In enforcing the right to counsel, courts rely on performance guidelines, such as those issued by the American Bar Association, as evidence of what reasonable attorney performance should look like.17
Those attorney performance standards emphasize the duty to communicate.18 They require lawyers to "seek to establish a relationship of confidence and trust" with each client, "keep the client informed" of all case developments, "advise the client on all aspects of the case," and "consult with the client on decisions relating to control and direction of the case."19 Related legal ethics and evidence rules also prioritize confidential communications, trust, and loyalty.20
This interrelationship of performance standards and constitutional law means that pressure on one can reshape the other.21 A leading example of this hydraulic relationship between praxis and constitutional meaning involves defendant-defender communication. In Padilla v. Kentucky,22 the Court imposed a new constitutional requirement that
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counsel inform clients, before a plea is entered, about the deportation consequences of a conviction.23 The Court's decision in Padilla led many defenders to find and use previously untapped information about immigration law in order to provide constitutionally compliant advice to the people they represented.24
Unfortunately, the lack of communication addressed in Padilla is all too common. In fact, communication problems have been cited as the most frequent basis of formal bar complaints against lawyers generally.25 Indeed, early empirical research on attorney-client communication was motivated in part by survey data documenting perceptions of lawyers as "inattentive, unresponsive, insensitive, non-empathetic, uncooperative, and arrogant."26
These problems are even more intense in the public defense context, where a unique set of obstacles hinders communication.27 The obstacles are reflected in the "Public Pretender" stereotype.28 The stereotype has complex origins. As indicated by the study data offered in Part I, it is actualized in grim expectations and experiences of public defense representation on the part of defendants and defenders alike.
The origins of the Public Pretender stereotype lie in the sometimes complementary but often conflicting constitutional and cultural impulses that have shaped the right to government-paid counsel.29 On one hand, that right is an idiosyncratic constitutional mandate to redistribute
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resources from haves to have-nots30 that is animated in part by libertarian commitments to methodological individualism and limited government power.31 On the other hand, right-to-counsel doctrine is informed by egalitarian concerns—albeit concerns that seem to peak when the criminalization and racialization of poverty in the United States are under especially intense international scrutiny.32 These libertarian and egalitarian impulses collude and collide with negative-rights constitutionalism, capitalist commitments to free markets and low taxes, and retributivist suspicion of the criminally accused as deserving punishment instead of a publicly funded defense.33
Amid these shifting constitutional and cultural impulses, austerity is a reliable constant that contributes to the Public Pretender stereotype and the related, often grim expectations and experiences of people who need and provide public defense representation.34 The majority of criminal defendants need government-paid lawyers because they cannot afford private counsel.35 Prevailing (and arguably mistaken) interpretations of Supreme Court case law prevent poor people from exercising the Sixth Amendment right to choose an available, qualified, willing attorney—a right enjoyed exclusively by defendants who can
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afford to hire counsel.36 This overt, class-based discrimination in the vindication of a fundamental right contributes to perceptions that court-appointed lawyers do not work for the low-income defendants they ostensibly represent and that, instead, attorney loyalties lie with the government that pays for both the defense and the prosecution.37
Such perceptions are only strengthened by the fact that public defense lawyers are underfunded and overworked.38 Few cases go to trial.39 There is often little to no pre-plea communication.40 Attorneys have little time to visit people who are incarcerated when they cannot make bond. Telephone contact between jails and defender offices is often sharply limited or costly. Low-income defendants who can make bond often lack access to the stable housing...
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