Ethical issues for attorneys in problem solving courts
1. Ethical Issues for Attorneys in
Problem-Solving Courts
NADCP
18th drug court training conference
Hon. Peggy Fulton Hora
Judge of the Superior Court (Ret.)
Sunday, july 17, 2011
2. Chief Justice Warren Burger:
• “*Lawyers+ must be legal architects, engineers,
builders, and from time to time, inventors as well.
We have served, and must continue to see our role,
as problem-solvers, harmonizers, and
peacemakers, the healers – not the promoters – of
conflict.”
Daicoff, Susan, “Law as a Healing Profession: the ‘Comprehensive Law Movement’,” 6:1 Pepperdine Dispute
Resolution LJ (2006)
3. State Bar of Michigan
• When there is a defender office, one function of the
office will be to explore and advocate for programs that
improve the system and reduce recidivism.
• The defense attorney is in a unique place to assist clients,
communities and the system by becoming involved in the
design, implementation and review of local programs suited
to both repairing the harm and restoring the defendant to a
productive, crime free life in society.
4. Revise the code of judicial ethics?
“The wording of State codes of judicial ethics may
appear to discourage or place little value on
problem-solving and court and community
collaboration.”
Rottman, David and Pam Casey, “Therapeutic Jurisprucdence and the Emergence of Problem-SolvingCourts,”
National Institute of Justice Journal (1999)
5. Duty to be informed about drug courts
• Lawyers must educate themselves about drug court
programs.
• They cannot effectively advise their clients otherwise
• “To ignore the need to learn about the drug court
process is to ignore the evolution of the justice
system”
• “For lawyers to do otherwise is for them to become
legal dinosaurs”
• Smith v. State FL Ct.App. 4th Dist. 3/19/03
6. Prosecution Ethics
Jack McCoy, DA, Law & Order
• Protect and promote
public safety
• Cannot charge without
PC (Model Rule 3.8)
• Duty to dismiss weak
case Jack McCoy, Law & Order
7. Net Widening
Studies in AZ and CA found no evidence DAs
were overcharging and, in fact, in DTCs,
charges were being reduced to allow
participation
Riley, J. et al., “Just Cause or Just Because?
Prosecution and Plea-Bargaining Resulting in
Prison Sentences on Low-Level Drug Charges
in California and Arizona,” (2005)
9. Prosecution Issues
• Must adopt less punitive approach
• Soft on crime („hug a thug‟)
• Conviction required or evidence lost
• Trained to put people in jail
• Misperception of link between mental illness &
violence
• “Buy in” from prosecutor required for program
success
• Drug courts that expect the Prosecutor to
attend all team meetings have more than 2
times greater cost savings
10. Defense Issues
Yvonne Smith Segars, Esq., Public Defender of New Jersey (Ret.)
11. Brian
Long time client
Petty, non-violent
crimes
Substance abuse + MH
issues
Offer: CTS or DTC
Can you predict his
success?
Ability to cope with
program?
Pre- or post-plea?
12. Questions for Defense Counsel in DTCs
• Will the client spend more time in jail?
• Attend court more frequently?
• FTA more frequently?
• Provide judge with personal information?
• Examine the root cause of addictive behavior?
• Focus on long-term rather than short-term goals?
13. Mary Ann
Prostitution, petty theft,
possession, multiple
DWIs, vandalism
Long-term health
problems (Hep C and
cirrhosis)
Wants out today
Doesn’t want to go to
DTC
“There’s nothing wrong
with me”
14. Must guard against
• Use Therapeutic Jurisprudential approaches
“paternalistically” …when client „really needs
psychological treatment or help‟
Daicoff, supra.
15. • Does it diminishes the role of the attorney?
• How is it different from explaining a plea agreement?
• What is in the “best interests” of the client?
• What is an “informed decision” re: representation
(Model Rule 1.4)
• Balance client needs with “early and prompt
placement” in Key Component #3
• Due Process implications
16. Darwin
• In a search of D’s house,
meth and paraphernalia
were found. There is an
arguable 4th Am. issue
on a new theory you’ve
been dying to use
• File the motion or take
DTC offer?
17. • Sacrifice potential for acquittal/ dismissal in
questionable case or agree to conviction (in post-
adjudication setting) & treatment?
18. Jennifer
Current participant in
DTC
Partied on the w/e
Tested positive for
cocaine
Swears it was a false
positive caused by
dental work
21. Acquiesce to sanctions or “zealously” advocate
for client?
Argue client’s position just in staffing or in court
in client’s presence?
Therapeutic or anti-therapeutic effects of
arguments and location?
“Whose team am I on anyway?”
Quinn, Mae C., Whose Team Am I on Anyway? Musings of a Public Defender About Drug Treatment Court
Practice, 26 N.Y.U. Rev. of L. & Soc. Change 37 (2000-2001).
22. Adversarial System
Does it hinder tx by obstructing communication
and encouraging denial?
Is there an inherent conflict between a non-
adversarial system in problem-solving courts
and ethical duties of judges and lawyers?
Simon, William H., Criminal Defenders and Community Justice: The Drug Court Example, 40 AM CRIM.
L. REV. 1595, 1596 (2003)
23. • AND Model Rules of Professional Conduct, Rule 2.1
anticipates interdisciplinary behavior by lawyers.
• “…*A+ lawyer may refer not only to law but to other
considerations such as moral, economic, social and
political factors that may be relevant to the client’s
situation.”
24. Rhonda
Coming down from 3 day
meth run
Falling asleep while
interviewing
“It wasn’t my meth. I was
holding for my boyfriend”
“I don’t care what happens.
Just leave me alone”
25. • Legal/cognitive competence of client to exercise
options
• Prone to relapse, AOD clients display denial,
rationalization, resistance so who is making the
decision - lawyer or client? (Model Rule 1.4, ABA Std
Criminal Justice 4-5.1)
26. Ex parte Communication
Ex parte communication must be specifically waived or
asserted (Model Code Judicial Conduct, Canon 3B(7))
Who is present at staffing?
Is it ok to attend team meetings w/out client?
How many levels of hearsay in staffing?
Are 42 CFR waivers executed for everyone present?
What about HIPPA?
27. Defense attorneys support DTCs
• In one survey, defense counsel was overwhelmingly
satisfied with DTC
• 97% reported they were glad to have DTCs for their clients
and agreed their clients were not hurt by the process
• 97% also felt they did not have to abandon their traditional
adversarial duties
• 90% reported higher job satisfaction than when practicing
traditionally
Indigent Defense, Nov./Dec. 1997 at 8
28. Some Public Defenders originally resistant to DTCs are
now some of their biggest supporters:
James Hennings, Portland OR
Mark Stephens, PD of TN: “a rewarding experience and
helpful in dealing with drug problems among clients”
Yvonne Smith Segars, PD of NJ founding member of
NADCP
Michael Judge, PD of CA, NADCP founding Board
Clarke, Problem-Solving, op cit.
29. • “It is in both the State’s interest and our client’s
interest to promote healing rather than hurting the
offender.”
Marin County Public Defender 2008
30. An ethics explosion
• The U.S. Supreme Court took up 16 cases involving
lawyering in 2010, amounting to 20 percent of its
docket
• State appellate courts coming down with lots of due
process cases
31. References
• Clarke, Cait, et al., “Making the Case: Therapeutic Jurisprudence and
Problem Solving Practices Positively Impact Clients, the Justice Systems
and Communities They Serve,” St. Thomas LR 17:3 (Spring 2005)
• Clarke, Cait, et al., “’From Day One’: Who’s in Control as Problem Solving
And Client-Centered Sentencing Take Center State?,” NYU Rev L & Soc
Change 29:1 (2004)
• Clarke, Cait, “Problem-solving Defenders in the Community: Expanding the
Conceptual and Institutional Boundaries of Providing counsel to the Poor,”
Georgetown J of L Ethics XIV:2 (Winter 2001)
• Daicoff, Susan, “Law as a Healing Profession: the ‘Comprehensive Law
Movement’,” 6:1 Pepperdine Dispute Resolution LJ (2006)
