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Ethics, the Goals of Representation, and "Volunteers"

Today the U.S. Supreme Court issued one of its midsummer orders lists.  These are usually just routine administrative orders, but occasionally you get something interesting. 

In today's orders list, we find this gem from Ballard v. Pennsylvania, No. 13-9364:  "The letters of June 2, July 8, July 14, and July 16, 2014, received in this case, are referred to the Disciplinary Board of the Supreme Court of Pennsylvania for any investigation or action it finds appropriate."  Hmmm.  What's that about?

This is a capital case.  Ballard is a so-called "volunteer," a death-sentenced inmate who doesn't want his sentenced reversed or even delayed.  Marc Bookman of the Atlantic Center for Capital Representation, claiming to be Ballard's lawyer, filed a certiorari petition asking the U.S. Supreme Court to review the decision of the Pennsylvania Supreme Court affirming the judgment.  Ballard himself had a thing or two to say about that.
The Supreme Court's docket says on June 9, "Letter of June 2, 2014, from petitioner received."  Not a letter from counsel for petitioner, you understand, a letter from the "petitioner" himself.  Tom Shortell has this story in the Express-Times, Lehigh Valley, Pennsylvania. 

Ballard's letter to the Court, page 1 of this PDF file, says:

It has come to my attention via the news media that an appeal has been filed on my behalf contesting my death sentence.

I never authorized anyone to file anything on my behalf.  I am not appealing this sentence any further than it has been.

It is my most ardent plea that asks now of you that the appeal filed in my behest be rejected summarily.  The reasons being: The "Federal Defender's" filing have acted without my authorization; without my knowledge even.  They are attempting to secure themselves as "attorney's of record" so as to circumvent having to obtain my authorization.  And lastly, but most importantly, they are acting against my own wishes to waive my appeals.

On June 23, the Court denied the certiorari petition and added, "Marc Bookman, of Philadelphia, Pennsylvania is hereby directed to file within 40 days a response to the June 2, 2014, letter filed by Michael Ballard in this matter."

Notice the order says "Marc Bookman," not "counsel for petitioner."  Does Bookman represent Ballard?  There are two ways to become a lawyer for a party.  The client hires you, or the court appoints you.  That's it.  Did Bookman become Ballard's lawyer by either of these routes? 

Bookman's initial letter in response, pages 2-3 of the same PDF file linked above, says he met with the Federal Public Defender, and they said Ballard wanted the petition filed and was seeking counsel to do it.  But the Fed PD wasn't even Ballard's prior counsel.  So he was retained as counsel for Ballard by another law office, not the one that had represented the client to that point, without any communication directly with the client?  That sounds pretty fishy to me.

In a letter to the district attorney, available as pages 11-12 of this PDF, Ballard's direct appeal counsel says he told the Fed PD Ballard did not want any further reviews.

For his reason to believe that Ballard really did want to appeal further, Bookman cited a newspaper article quoting his client, rather than speaking with his client directly or even speaking to Ballard's prior attorney.  "Fishy" would be an understatement.

Then we have today's order kicking the case to the state's attorney discipline system.

Some capital defense attorneys are doing what defense attorneys are supposed to do, vigorously advocating their client's position.  Some are engaged in a political and ideological crusade against capital punishment.  Often, the two overlap to a degree as to be indistinguishable, but the "volunteers" bring out the difference.

Who decides what the "client's position" is?  Lawyers can determine strategy and the specific arguments to make, but when we are talking about the broad, top-level goal to be sought, the rules of ethics are clear.  The client decides.  This is true in other professions as well as law.

If the client is not mentally capable of deciding, then sometimes it is necessary to put someone else in the position of deciding for him.  If children decided whether to get their vaccination shots, none would.  Parents decide.  Involuntary commitment of people with schizophrenia or other severe mental disorders is sometimes necessary.  Certain professionals can make that decision for the patient on a very short-term, emergency basis, but anything longer has to clear a high legal hurdle and requires a court hearing.

A lot of anti-death-penalty lawyers seem to think that any "volunteer" is per se crazy, and they can take it upon themselves to appeal a judgment over the express objection of their client.  They cannot.  Absent an emergency, there is no excuse for any professional to disregard the expressly stated wishes of the client/patient as to the end goal of professional services.  If you think he is crazy, get a conservator appointed.  Otherwise, the client is boss as to the end goal, and working against his wishes is patently unethical.

Whatever happens in this particular case, the Supreme Court has fired a warning shot across the bow of the crusaders.  It's about time.

The other thing we are seeing here is taxpayer-funded Federal Public Defender agencies acting as general anti-death-penalty litigating organizations, going far outside the purposes for which they were created and for which they are funded.  Congressional oversight hearings are long overdue.



Is there any place where I can access the text of Mr. Bookman's letters?

At present, it seems that Ballard never retained Bookman nor even communicated with him in any fashion. If that is true, Bookman could not conceivably have viewed himself as Ballard's lawyer, and still less could he have simply assumed what Ballard wanted to do.

It seems to me that Bar Counsel should investigate, not merely Bookman, but what exactly the Public Defender did in this case. It may be that the PD did nothing wrong; it may also be that the PD is in on it with Bookman, but (being an institutional litigant) wanted Bookman as the front man for The Ideological Mission.

Right now, the public, which pays the PD's salary and bills, doesn't know. We could use to find out.

They are included in the two PDF files linked in the original post (uploaded by SCOTUSblog, BTW).

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