The absence of agency in indigent defense.

• Author: Toone, Robert E.

Table of Contents Introduction I. Agency in Retained Counsel Relationships A. The Principal's Right of Control B. Default Allocation of Authority, Negotiation, and Variation in Private Practice II. Lawyer Control in Indigent Counsel Relationships A. Professional Standards: Vein-Clamping Surgeons and Sleeve-Plucking Clients B: Incorporation into Sixth Amendment Jurisprudence 1. The Dilemma of Appointed Representation 2. The End of "Deliberate Bypass" 3. The Entrenchment of Lawyer Control 4. Post-Conviction Review of Counsel's Performance III. The Impact on Indigent Defense A. Underfunding, Excessive Caseloads, and Lawyer Incentives B. Rationing C. Moral Hazard and Microallocation D. Aligning Agent Incentives and Restoring Principal Control Conclusion: The Paradox of Paternalism Introduction

In Gideon v. Wainwright, the Supreme Court held that the Assistance of Counsel Clause of the Sixth Amendment entitles all persons accused of crime, rich and poor, to legal representation for their defense. (1) The ideal that "every defendant stands equal before the law," the Court declared, cannot be realized "if the poor man charged with crime has to face his accusers without a lawyer to assist him." (2) A year later, Anthony Lewis observed that it would be an enormous challenge to bring to life Gideon's dream in which "every man charged with crime will be capably defended, no matter what his economic circumstances, and in which the lawyer representing him will do so proudly, without resentment at an unfair burden, sure of the support needed to make an adequate defense." (3)

The fifty-year commemoration of Gideon has come and gone, and we are no closer to realizing that dream. Defendants in the United States face a system in which "no defense at all, rather than aggressive defense or even desultory defense, is the norm" and where "individualized scrutiny is replaced by the indifferent mass-processing of interchangeable clients." (4) Appointed lawyers fail to serve their clients with diligence and thoroughness, conduct adequate preparation for hearings and trial, or keep their clients reasonably informed. (5) It is, in Amy Bach's words, a system of ordinary injustice, (6) where every day thousands of defendants languish in jails and detention centers with little knowledge about their cases and no ability to advance their defenses. The poor performance of appointed lawyers further undermines the effective functioning of the adversarial system, which relies on the parties' aggressive pursuit of their own interests to ensure that the innocent are protected and the guilty are appropriately punished. (7)

Countless articles, reports, and op-eds have criticized this failed system of indigent defense, many focusing on the problems of underfunding and overwhelming lawyer caseloads. Few, however, have addressed the rules of law and professional ethics that allow these problems to persist.

In almost every circumstance except indigent defense, legal representation is a form of agency: a relationship in which an agent with specialized legal knowledge and skills acts on a principal's behalf, subject to the principal's control. Control is essential to agency because it allows the principal to monitor and direct the agent's activities, whose objectives may conflict with the principal's own. Thus, in normal lawyer-client relationships, clients can limit shirking, disloyalty, and other "agency costs" by exercising greater control over their cases. Without control, a principal cannot compel the agent to expend the necessary effort to achieve the principal's goals. There is, in effect, no agency relationship at all.

Under the tenure of Chief Justice Warren Burger, the Supreme Court removed agency from the indigent defense relationship, resulting in a two-tiered system of criminal justice--one for rich and one for poor--in conflict with Gideon's promise of equal justice. Now, the representation that indigent defendants receive under the Sixth Amendment comes at the cost of losing control over their defense. They have essentially no ability to prevent their lawyers from shirking or pursuing ends that conflict with the defendants' own. They have no ability to compel their lawyers to investigate defenses, research case law, file motions, prepare for trial, or perform other critical defense-related tasks. In turn, state and local legislatures can limit overall resources for indigent defense systems, confident that appointed lawyers will use their authority over clients to "triage" services at a very low level of visibility.

This article argues that to fully understand the chronic failure of indigent defense, we must examine it from the perspective of a rational defendant, an individual accused of crime who wants to benefit from "the guiding hand of counsel," (8) but also wants to participate in his defense and prevent his appointed lawyer from shirking her responsibilities; and a rational lawyer who, like most agents, seeks to maximize her own utility. If we are to realize Gideon's dream in the next fifty years, we should consider how the allocation of authority within the lawyer-client relationship impacts the incentives and effort expended by appointed lawyers and, in turn, the ability of legislatures to limit overall funding for indigent defense.

1. Agency in Retained Counsel Relationships

   1. The Principal's Right of Control

      Lawyers are generally "recognized as agents for their clients in litigation and other legal matters." (9) In the courts, this point usually arises in deciding whether a client is bound by his lawyer's decisions. In the 1962 case of Link v. Wabash Railroad Co., the Supreme Court declared that in "our system of representative litigation" "each party is deemed bound by the acts of his lawyer-agent." (10) In that case, the trial court dismissed the plaintiff's negligence action for failure to prosecute after his counsel failed to appear at a pretrial conference. (11) On appeal, a majority of the Supreme Court rejected the claim that the dismissal imposed "an unjust penalty" on the plaintiff because he "voluntarily chose this attorney as his representative in the action, and ... cannot now avoid the consequences of the acts or omissions of this freely selected agent." (12) This rule has since been applied in civil and criminal cases alike and without regard for whether counsel was "voluntarily chose[n]" by the party or assigned by the court. (13) In recent years, the Supreme Court has recognized a limited equitable exception for cases where the lawyer effectively "abandons" her client. (14) It has not, however, disturbed the general rule that "[b]ecause the attorney is the litigant's agent, the attorney's acts (or failures to act) within the scope of the representation are treated as those of his client." (15)

      In theory, the idea of agency should entail more than just holding parties responsible for the negligence of their lawyers. Agency is defined as "the fiduciary relationship that arises when one person ('a principal') manifests assent to another person (an 'agent') that the agent shall act on the principal's behalf and subject to the principal's control, and the agent manifests or otherwise consents so to act." (16) The elements of an agency relationship are thus a mutual manifestation of consent, the agent's undertaking to act on behalf of the principal, and the principal's right to control the agent. (17) A principal-agent relationship arises only when all three elements are present; the fact that a relationship may be characterized as agency "in the context of industry or popular usage" is not controlling. (18)

      In particular, the principal's right to control the agent is "a constant across relationships of agency." (19) It encompasses the right "to assess the agent's performance, provide instructions to the agent, and terminate the agency relationship by revoking the agent's authority." (20) The right to control is not absolute; like other agents, lawyers are "subject to legal limits on acts that may be done rightfully on behalf of a principal," (21) as well as "profession-defined norms and discipline." (22) Nevertheless, the law of agency provides that the principal's right to control is inalienable, continuing "even if the principal has previously agreed with the agent that the principal will not give interim instructions to the agent or will not otherwise interfere in the agent's exercise of discretion." (23) A lawyer may have remedies for the breach of an earlier agreement delegating authority to her, but "[u]nless the agent resigns, the agent has a duty to obey a reasonable instruction from the principal." (24) Indeed, an allocation whereby the lawyer assumed irrevocable authority over most or all non-waivable decisions related to a litigation matter, "completely beyond client direction," would call into question the very existence of an agency relationship. (25)

   2. Default Allocation of Authority, Negotiation, and Variation in Private Practice

      From a standpoint of professional regulation, the allocation of decision-making authority for privately retained lawyers begins--but does not end--with Model Rule of Professional Conduct 1.2. That rule provides that, with the exception of certain specified decisions, a lawyer "shall abide by a client's decisions concerning the objectives of representation" but need only "consult with the client as to the means by which they are to be pursued." (26) Many have noted the relative vacuity of the difference between "objectives" and "means" in legal matters. (27) This point is particularly apparent in criminal cases, where the primary objectives of representation are essentially the same in almost every case, regardless of the charged offense, the defendant's background, or even his actual guilt or innocence. That is, almost every defendant seeks to avoid charges, avoid conviction, and, when that is not possible, obtain the least severe punishment possible. (28) Indeed...