Supreme Court: No Right to an Ethical Lawyer

The Supreme Court issued an opinion today in a prominent Michigan murder case, Burt v. Titlow. Details here. Shorter version: There is no constitutional right to an ethical lawyer. If your lawyer violates ethics rules in advising you or preparing your case, tough luck. Andrew Cohen has more.

The opinion is here. No surprise it was written by Justice Alito. Andrew says: [More...]

Buried near the end of the Court's opinion, written by Justice Samuel Alito, is the following passage that richly expresses the extent to which this Court is willing to go to sacrifice trial rights in the name of the finality of judgments.

The referenced portion of the opinion states:

Despite our conclusion that there was no factual or legal justification for overturning the state court’s decision, we recognize that Toca’s conduct in this litigation was far from exemplary. He may well have violated the rules of professional conduct by accepting respondent’s publication rights as partial payment for his services, and he waited weeks before consulting respondent’s first lawyer about the case.

But the Sixth Amendment does not guarantee the right to perfect counsel; it promises only the right to effective assistance, and we have held that a lawyer’s violation of ethical norms does not make the lawyer per se ineffective.

Troubling as Toca’s actions were, they were irrelevant to the narrow question that was before the Sixth Circuit: whether the state court reasonably determined that respondent was adequately advised before deciding to withdraw the guilty plea.

Andrew on the injustice:

This is what the right to counsel has come to in America. Your lawyer may have violated ethical rules; he may have failed to timely consult with other attorneys; he may have not adequately investigated your case; he may have given you bad advice that leads you to withdraw a guilty plea. And yet the legal standards imposed by the Supreme Court declare that you still aren't entitled to any meaningful relief by the courts. In law school, they call this "a right without a remedy." In real life, it's called injustice.

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  • Display: Sort:
    Corruption or mental retardation? Or Both? (5.00 / 2) (#1)
    by Dadler on Tue Nov 05, 2013 at 06:38:08 PM EST
    You make the call.

    The decision by Justice Alito (none / 0) (#6)
    by Peter G on Wed Nov 06, 2013 at 09:34:12 AM EST
    was unanimous.  Justices Sotomayor and Ginsburg each wrote a short concurrence emphasizing certain decisive points about the case. There is blame to be assigned for this outcome, but just to note that Alito wrote the opinion is not a meaningful explanation.  Read the opinion if you want to know the factual and legal (technical) situation here.  I don't think the Supreme Court should have taken the case in the  first place.  Having taken it, the decision is not wrong under well-established law, both statutory and constitutional -- even though that body of law is not consonant with my view of justice.

    Thanks for your take (5.00 / 1) (#11)
    by Dadler on Wed Nov 06, 2013 at 11:43:23 AM EST
    But there isn't, IMHO, a shred of actual logic that could support this decision. The law is not immortal, or logical, and is often useless to actual sentient human beings; it is simply the product of frail human minds, which are wrong all the time. And that is it. And Ginsberg and Sotomayor mean nothing to me except for their opinions on each individual case, and here, IMO again, they failed. But legal language and laws are often designed precisely to be miserable failures. We both know that. They are designed by people who couldn't care less about public good but about what is politically expedient. So, a jurist can make what you believe is a right decision within a certain law, but if that law itself is corrupt and idiotic and counter to logic, then the entire process is a pointless exercise in Pirandello-like absurdity.

    This decision is wrong. That's my opinion.

    If the law doesn't see it, then the law, as everything in life happens to be at times, is entirely worthless in this case. Worth. Less.

    Not that I have a strong feelings about it. ;-)

    (NOTE: I am admittedly biased. I have been screwed in court by judges twice. Judges who essentially broke the law in their conduct. Thus I've been on the ass end of corrupt "legal logic" too many times. The law is only as good as the people carrying it out and interpreting it. Sorry, but the people doing this, in my experience, are power corrupted cowards, more concerned with keeping their jobs than doing the right thing.  The SCOTUS, as the pinnacle of this corrupted system, is such a lacking body in the context of America in 2013, IMO, it's really difficult to comprehend. It is the ultimate behind the curve body in American politics. And it is a political body, we all know that. And it is, without a doubt, ALWAYS behind the times in terms of social thought and evolution. Always. It is like the rich uncle that runs the family, but whom you always have to suck up to, whose piss poor logic you always have to get on your knees for, just to get life to be decent for everyone else in the family. When you strip it down, this is what the SCOTUS is right now, IMO. How could it be anything else in a system as corrupted by money as ours? Seriously, how could it? It simply cannot, IMO. Logic tells me that.)


    The critical word was (none / 0) (#12)
    by NYShooter on Wed Nov 06, 2013 at 12:24:55 PM EST

    "But the Sixth Amendment does not guarantee the right to perfect counsel; it promises only the right to effective assistance,..."

    It's interesting that the decision was unanimous.

    I guess a strict interpretation would be that the attorney could be a wife beater, gambler and, dog kicker, but, if, he provided "effective" counsel he's met his Constitutional duty.

    My question:
    If the defendant felt that the lawyer's obnoxious behavior led to, or, contributed to, a negative verdict could he take the same action that Skakel took against his first attorney?  


    Toca was not the trial (none / 0) (#13)
    by me only on Wed Nov 06, 2013 at 12:27:49 PM EST

    From Andrew Cohen's piece (5.00 / 1) (#5)
    by jbindc on Wed Nov 06, 2013 at 08:16:20 AM EST
    This is interesting:

    The ruling in Burt v. Titlow is rather short and worth reading in its entirety. From it you can glean that this defendant had several different opportunities to change her fate; in that respect, this is not the "typical" right-to-counsel case where a hapless defendant is pushed inexorably through a justice system designed to ensure a conviction. The client here, in other words, is not blameless for the result that has befallen her.

    But I have met Fred Toca before when he practiced before the judge I worked for back in Oakland County.  I am not surprised by this, nor the fact that he was disbarred in 2011.

    What? (5.00 / 1) (#10)
    by Sweet Sue on Wed Nov 06, 2013 at 11:32:44 AM EST
    Better Call Saul.

    Lol..... (none / 0) (#14)
    by magster on Wed Nov 06, 2013 at 02:16:20 PM EST
    That was my first thought. Saul is effective and unethical.

    "Why don't you leave the room and get a juice box while you're at it?"


    I'm reminded of a questionnaire from (none / 0) (#2)
    by vicndabx on Tue Nov 05, 2013 at 07:43:18 PM EST
    a home buying book I purchased. In a section on hiring a real estate attorney:

    Have you ever been subject to a bar association disciplinary hearing? If so, what was the outcome?

    Second question, have you ever been sued for malpratice?

    Might not offer much help in this case, but I guess the other lesson here is do your diligence before you hire.

    Seriously? That's the lesson? (none / 0) (#3)
    by shoephone on Tue Nov 05, 2013 at 10:31:20 PM EST
    I hope you never end up in need of a trial attorney, for any reason. But, if you do, I would surmise that your attorney is no more accountable for your actions than you are for his/hers.

    And really, Sam Alito has to be one of the vilest excuses for a human being that has ever served on the SCOTUS.


    There's nothing sacred about either of them (none / 0) (#16)
    by shoephone on Thu Nov 07, 2013 at 12:50:22 AM EST
    I'm more impressed with Sotomayor, in general. But neither she or Kagan are paragons of anything. And Alito is always scum, IMO.

    Confusing Decision (none / 0) (#4)
    by RickyJim on Wed Nov 06, 2013 at 08:07:36 AM EST
    The sixth amendment says "and to have the Assistance of Counsel for his defence".  It doesn't contain the word "effective" but one might argue that it is implied.  The main thing I don't understand is the apparent claim that a lawyer not investigating the facts of the client's case is unethical but not being ineffective.  I wonder how this effects the Skakel case.

    The understanding that "assistance" (5.00 / 2) (#9)
    by Peter G on Wed Nov 06, 2013 at 11:00:47 AM EST
    of counsel means "reasonably effective assistance" has been established since 1932 (Powell, one the Scottsboro cases), and was doctrinally fleshed out in 1984 (Strickland and Cronic).  Not all ethical violations (such as the financial terms of the fee agreement in this case) fall below professional norms for the defense of the case (although many do), nor do all ethical violations produce "prejudice" (a reasonable probability of an effect on the outcome) in the sense required to establish a constitutional violation.

    The defendent (none / 0) (#7)
    by me only on Wed Nov 06, 2013 at 10:09:27 AM EST
    In any event, respondent admitted in open court that former counsel had explained the State's evidence and that it would support a first-degree murder conviction. Toca was justified in relying on this admission to conclude that respondent understood the strength of the prosecution's case.

    The plea deal was a quid pro quo.  Titlow withdrew and did not testifying against the aunt.  The aunt was acquitted.  Now Titlow is arguing that he should get the deal w/o testifying.


    Inneffective Client (none / 0) (#8)
    by ragebot on Wed Nov 06, 2013 at 10:36:23 AM EST
    This is no defense of Toca, he would not be my first choice as a defense lawyer.

    But at some point a defendant has to be held responsible for their actions.  In this case a defendant takes a plea, talks to a jailer, goes back on the plea, and is convicted in part based on the defendant's own statements.

    The SC mentions both the "law and facts" being important.  The SC also points out the defendant proclaimed innocents to her second lawyer.  Perhaps the biggest issue is the SC's claim that absent obvious errors the SC will defer to state courts.