A Thought Experiment
Suppose that Facebook got sued for a privacy tort for hosting nonconsensual pornography and that Facebook’s lawyer told company executives that she did not intend to mount Facebook’s preferred response—a motion to dismiss on the grounds of Section 230 immunity. Executives explained to the lawyer that Section 230 of the federal Communications Decency Act is a knock out punch. An Internet intermediary can’t be held responsible for privacy-invading content created by a user. The lawyer, however, refused to listen to reason.
When Facebook tried to switch attorneys, its first lawyer told the court that Facebook should be forced to remain represented by that lawyer even though Facebook wanted a new one. In making that argument to the court, Facebook’s first lawyer told the court that she was doing a good job for Facebook and that her refusal to mount Facebook’s preferred defense was because Facebook had no Section 230 immunity. Facebook’s lawyer would not only be undermining her own client’s case, but would also be incorrectly representing the underlying issue to the court.
Facebook’s lawyer would be in flagrant violation of fiduciary duties to its client. Of course, clients with money can fire lawyers. Those lawyers certainly should not be permitted to undermine a client’s case in the course of trying to retain the representation—especially by inaccurately representing key features of a case. That sounds so obviously right: a contrary suggestion would surely be absurd.
Absurd Reality for Indigent Clients Facing Execution
For a reason that is hard to fathom, this is precisely what is allowed to happen in criminal cases affecting indigent clients facing execution. Apparently – at least in the Fifth Circuit – the relationship between client principals and lawyer agents is different.
This week, in Roberson v. Stephens, the Supreme Court will consider whether the execution of Robert L. Roberson should proceed even though his lawyers seem to have prioritized their own reputational interests at the expense of their client. Over at Balkanization, my colleague Mark Graber has a careful explanation of how Mr. Roberson’s lawyers seem more preoccupied with their reputations than with resuscitating a Sixth Amendment claim that might save his life.
At issue in Roberson is a failure of legal agency involving the same death penalty lawyers that a palpably displeased Justice Sotomayor rebuked on the eve of their client Raphael Holiday’s November 18 execution. The lawyers refused to file a clemency petition and opposed Mr. Holiday’s attempts to find a lawyer who would follow his wishes and file it. Forced to go along with the Court’s refusal to stay the execution because the attorneys filed a last-minute clemency petition, Justice Sotomayor nevertheless issued a powerful statement criticizing the lawyers for their behavior and the lower courts for failing to police it. She explained that the law does not permit “condemned men and women to be abandoned by their counsel at the last moment . . . [y]et this is exactly what happened here.”
Here again, the same lawyers have seemingly refused to listen to their client, Mr. Roberson, because doing so might require one of them to expose himself to a finding that the forfeiture of the Sixth Amendment claim was his own fault.
As briefing submitted in support of Supreme Court review explains: “In both Roberson and Holiday, the Fifth Circuit permitted the same pattern of conduct: CJA counsel’s refusal to pursue relief on the client’s behalf, followed by counsel’s inaccurate representations to courts about the constraints on seeking such relief, concluding with legal opposition to the very client they were appointed to represent. At base, both Roberson and Holiday express the Fifth Circuit’s view that [the statutory right to counsel] affords courts discretion to saddle inmates facing execution with lawyers who are not functioning as agents of their clients.”
The assessment of the ethics experts in the case is unequivocal. Yale Professor Lawrence Fox is the former Chair of the ABA Standing Committee on Ethics and Professional Responsibility, and the former Chair of the ABA Litigation Section. Professor Fox concluded “to a reasonable degree of a professional certainty that both lawyers are operating under profound conflicts of interest that prevent them from continuing the representation[.]” Charles Herring, a renown Texas ethics expert, explained: “James Volberding and Seth Kretzer have conflicts of interest that should prevent them from representing Mr. Roberson on the [Sixth Amendment issue in the case].”
I may not be a death penalty lawyer, but I know enough to understand that we should not be allowing attorneys to obstruct relief preferred by their own clients—particularly in cases where the attorneys seem to be engaged in obstruction as a means of protecting their own interests. If we would not allow counsel for Facebook to cling onto her job contrary to the interest of its client, we certainly should not do so in a case where the stakes are not just about money but about life and death.