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Ethics

: Legal Ethics Forum

CA Legislature: Please Fix This Problem

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The CA Supreme Court has rejected the argument that Fresno County's policy of paying a flat fee, including expenses, for criminal representation in a capital case creates a conflict of interest for purposes of Strickland analysis.  



I want to reserve judgment on the Strickland analysis until I can study the opinion more, but as a policy matter I agree with my colleague Shaun Martin: "Someone's life is at stake. Can we please, at a minimum, devise a system that doesn't create obvious incentive problems? That doesn't seem too much to ask."


I agree with the majority (and would amend Shaun's observation slightly) that all compensation systems have incentive problems.  But if the lawyer gets a flat fee and expenses for experts and investigators come out of that sum the risk that counsel will skimp is simply too great.  (See, e.g., United States v. Stitt, 441 F.3d 297 (4th Cir. 2006) (vacated on jurisdictional grounds but a perfect example of the problem.)  


At a minimum the legislature should require that expenses be funded separately from attorney's fees. Justice Kennard points out that California Commission on the Fair Administration of Justice favors such a policy.  I hope the legislature acts on that recommendation. 

Full post as published by Legal Ethics Forum on January 06, 2009 (boomark / email).

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