The Right to Two Criminal Defense Lawyers
| Citation | Vol. 69 No. 3 |
| Publication year | 2018 |
The Right to Two Criminal Defense Lawyers
Bruce A. Green
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"What can courts, legislators, or criminal defense lawyers themselves do to seriously change criminal defense practice in a manner that significantly benefits criminal defendants and promotes justice?" That question was posed to the participants in an August 2017 SEALS discussion group and Mercer University School of Law's 2017 Symposium on "disruptive innovation in criminal defense."1 The implied premise of the question is that aspects of criminal defense should be fixed or can be improved—and in radical ways.
The question of disruptive innovation provides an occasion for identifying deficiencies and weaknesses in contemporary criminal defense practice, and because defense lawyers do not work in isolation, deficiencies in the criminal process as it relates to criminal defense
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representation. The question presents a challenge to think "outside the box"—even if unrealistically, fancifully, idealistically, or hopefully.
In that spirit, this Article proposes the following innovation: Criminal defendants who have a right to appointed counsel should be assigned two defense lawyers who would interact with each other, the client, and others, but who would serve essentially different functions.
While the typical legal academic writing starts with a problem and builds up to a proposed solution, this one reverses the order. It begins in Part II by outlining the proposal to divide the criminal defense function between two lawyers. Then, Parts III and IV identify the problems addressed by, and the anticipated objections to, this innovation. Part V concludes with some thoughts about the utility of the analysis, fanciful though it may initially seem to be.
This Article's proposed disruptive innovation is that indigent defendants be assigned two lawyers—each of whom would have primary responsibility for different functions. The "settlement lawyer" would take the lead outside judicial proceedings, undertaking responsibility for the counseling and negotiating roles. The "trial lawyer" would be the principal advocate. These roles correspond to the different but interconnected processes—plea bargaining and trial—by which most criminal prosecutions in the United States are resolved.
The proposal is "innovative" only to a degree. The idea that two or more lawyers would represent a client in the same matter is hardly novel. Lawyers commonly serve as co-counsel in litigation, particularly in civil litigation and white-collar criminal litigation. The criminal defense lawyers who served as co-counsel on O.J. Simpson's successful murder defense—the so-called "dream team"—prominently displayed the utility of collaboration among co-counsel.2
Particularly in the work of law firms, collaboration among lawyers is the norm, not the exception—indeed, collaboration among lawyers with different expertise (and, often, different hourly billing rates) may be a law firm's selling point.3 For example, a senior lawyer (often the "relationship partner") may assume ultimate responsibility for the representation, and for communicating with the client while delegating
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much of the other work. Or a senior lawyer will take primary responsibility for certain important tasks—for example, counseling the client, settlement negotiations, and courtroom appearances—and oversee subordinate lawyers who undertake various other tasks, such as legal research, drafting, and depositions.
Co-counsel relationships among private lawyers in different firms are also common.4 For example, two solo practitioners may join forces on a large matter, or a lawyer conducting most of the representation independently may bring another lawyer into the matter for a discrete task, such as to draft motions or to consult on an issue where the second lawyer has particular expertise. There are many other ways in which work and responsibility can be divided among co-counsel.5
Perhaps the nearest analogue to this Article's proposal is the occasional employment of "settlement counsel" in civil litigation.6 However, the settlement lawyer in the criminal context would have a larger counseling function and would have greater independence. One might also analogize to the British criminal justice system, where indigent defendants are assigned both a barrister, who conducts the trial, and a solicitor, who consults with the defendant and "instructs" the solicitor.7
The difference here is in how the roles would be divided. Unlike the British barrister, the U.S. trial lawyer would be responsible for pretrial investigation. In the U.S. criminal context, courts occasionally appoint a second lawyer for the purpose of advising the defendant whether to waive
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the primary lawyer's conflict of interest,8 but this is a far more limited counseling role than contemplated here for the lawyer who is not the trial advocate.
In the proposed two-lawyer criminal-defense scheme, the settlement and trial lawyers would interact with the defendant in different ways. The settlement lawyer would interview the defendant to determine his concerns and preferences and to gather information relevant to a plea bargain or another negotiated disposition of the case. Based on information from the client, the trial lawyer, and the prosecutor, the settlement lawyer would advise the defendant about his options and negotiate with the prosecutor regarding the disposition. The trial lawyer, in the advocacy role, would interview the defendant to gather information relevant to a defense, seek discovery from the prosecutor by informal and formal means, conduct pretrial litigation and, if the case is not otherwise resolved, represent the defendant at trial.
The two lawyers would interact with each other as co-counsel. In order to advise the defendant effectively about the prospects of an acquittal at trial, which would ordinarily be an important consideration in deciding whether to plead guilty, the settlement lawyer would have to learn from the trial lawyer what has transpired in the investigation, trial preparation, and pretrial phase of the case, and how the trial lawyer evaluates prospective outcomes if the case is tried. If trial counsel has to make arguments regarding pretrial release or sentencing, he may benefit from information gleaned by the settlement lawyer in the course of counseling the client. The settlement lawyer would also share other information received from the client or the prosecutor that might be relevant to the trial lawyer's investigation and advocacy. The two lawyers would be available to toss around ideas and to make suggestions to each other and, where necessary, to fill in for each other, as in other co-counsel relationships.
The two lawyers would each interact with the prosecutor, but generally in different ways. The settlement lawyer would have the principal responsibility, where authorized by the client, to solicit a plea offer and to negotiate any disposition of the case. This could include making a pitch for why mitigating factors justify leniency. Based on information from the trial lawyer, the settlement lawyer might also argue why the facts of the case, or the possibility of an acquittal at trial, justify a more favorable disposition. The settlement lawyer's relationship with the prosecutor need not be adversarial and, where advantageous, could be cooperative and cordial since leniency for the defendant could be
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put forth in an appeal to the prosecutor's presumed interest in "seeking justice."9 The trial lawyer, meanwhile, could maintain a more traditional adversarial relationship with the prosecution in the course of preparing and defending the case.
The two lawyers would also interact differently with the court. As noted, the trial lawyer would play the principal advocacy role. This would include making arguments about pretrial release, filing discovery and other pretrial motions, conducting the defense if the case goes to trial, and making any sentencing arguments. Insofar as the defendant opts to plead guilty, the settlement lawyer would have a responsibility to ensure that the decision is well-informed. Ordinarily, it might be unnecessary for settlement counsel to join trial counsel at guilty plea proceedings, which can be largely pro forma once the defendant has made an informed decision to plead guilty. But the settlement lawyer would appear in court when beneficial, such as when the defendant remains unresolved and needs advice in the courtroom, when necessary to raise questions about the defendant's capacity to plead guilty, or to interject other concerns, including the inadequacy of the pretrial investigation or of pretrial discovery, that impair the defendant's ability to make an adequately informed decision.
A right to two lawyers-like other disruptive innovations-would have to be established and developed over time. Initially, the concept would have to be proven. Public defenders' offices might initially experiment by pairing their own lawyers to serve in the respective roles. In jurisdictions with multiple public defenders' offices, lawyers from different offices might be paired. If the concept proves promising, these offices might expand the experiment while making changes to eliminate problems and improve the co-counsel relationship. It would make sense to begin the experiment in felony cases, and perhaps in more serious felony cases. Eventually, if proven successful, the concept could be implemented by courts with authority over indigent defense systems or by legislatures establishing laws governing indigent defense. Understandings regarding the respective lawyers' roles and responsibilities would be refined over time.
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The quality of criminal defense matters. In...
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