Monday, May 11, 2009

lawyerschile: Law Firm Partner Isn't An Adequate Substitute for Defendant's First Choice of Lawyer

Law Firm Partner Isn't An Adequate Substitute for Defendant's First Choice of Lawyer

A criminal defendant can't be forced to settle for representation by his lawyer's partner when the lawyer  he hired is unavailable for trial, ruled the Maryland Court of Appeals in Miguel Gonzales v. State of Maryland.  As the Maryland Daily Record summarizes, Gonzales' attorney F. Spencer Gordon was unavailable on the day of trial, so Marshall Henslee, his partner appeared instead. Gonzales insisted that he was represented by Gordon, not Henslee, so the judge gave Gonzales the option of either going forward with Henslee or representing himself. Gonzales chose to represent himself and lost. On appeal, he argued that the judge deprived him of his Sixth Amendment right to counsel by denying him representation by his lawyer of choice. The Court of Appeals agreed, holding that:

We conclude, however, that where as here, the defendant has exercised his right to select the private counsel of his choice, the defendant may not be forced to either accept an attorney that was not retained or to proceed pro se in the event the chosen attorney does not appear on the date of the defendant's trial.

Accordingly, the court overturned the conviction.

One would think that the defendant's lawyers would be excited about the decision (though apparently they did not argue the appeal) -- but instead, Gordon's partner Henslee expressed concerns over the court's ruling. Henslee complained to the Daily Record  that the court's ruling would force his firm to "reconsider the fairly established practice of having law partners stand in for each other at trial when the primary attorney is unavailable that day." Gordon also commented, saying that the ruling will compel defense firms to make it clear to their clients that "it's the firm that represents them" and that any attorney in the practice may handle the case. What I can't understand, however, is why defense firms weren't explaining this to clients all along.

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Posted by Carolyn Elefant on May 11, 2009 at 03:13 PM | Permalink | Comments (0)

The True Toll of Unemployment

These days, losing a law firm job doesn't necessarily mean a complete loss of income with most firms offering some kind of severance -- either two to five months worth of salary, or several months of pre-termination notice. Still, financial loss isn't the only repercussion of lay-offs -- and indeed, it's perhaps the least serious. As Jane Genova writes at Law and More, "the residual negative effects" of losing a career linger permanently. Genova references a piece from New York Magazine that makes the point that " joblessness isn't just a financial problem." From the article:

Most recent studies on the subject suggest that the psychological effect of unemployment is even greater than the loss of income that accompanies it. Andrew Oswald, an economist at the University of Warwick, has collected happiness data from hundreds of thousands of people both here and in the United Kingdom, and what he's consistently seen is that people recover more quickly from becoming disabled, even widowed, than from the long-term loss of a job. "People may draw their benefits from the government," he says, "but they don't seem to psychologically acclimate." Everyone tends to have a natural hedonic set-point, a zone within which their internal mood-thermostat tends to hover, just like their weight. Sustained unemployment is one of life's few upsets that seems to permanently depress it. Even if this recession is shorter than pessimists predict, those who are laid off in this period will still pay a concrete, long-term price. "It's what economists call 'scarring,'?" explains Oswald. "If I lose my job today, the evidence is that my wages will be 10 percent lower, even a decade from now. Your bad luck follows you."

The The National Law Journal also documents the psychological toll of job loss on the legal profession including, sadly, three apparently layoff-related suicides at major firms during the past six months.  And even for those who remain employed, the recession continues to cause stress. To its credit, the ABA is acting quickly to address these issues -- it recently sponsored a CLE program entitled "What Lawyers Need to Know About Suicide During a Recession: Prevention, Identity and Law Firm Responsibility," a recording of which will be available at no cost to all lawyers at the request of The Posse List.

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Posted by Carolyn Elefant on May 11, 2009

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Rodrigo González Fernández
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