Two things came together recently to prompt me to think about the practice of federal criminal defense by retained lawyers.
First, our Federal Public Defender hired Jessica to become an AFPD. Jessica initially practiced as a criminal defense lawyer in Western Nebraska for several years. After that, she spent two years as a “fellowship attorney” with FPD where she learned the ropes of federal criminal defense from some of the best in the business. Following the fellowship, she resumed her private criminal defense practice in Lincoln where she established a reputation as a savvy and zealous practitioner. When a spot opened up with the FPD, she applied and was appointed.
Second, as I contemplated my recent surgery, I was comforted by the fact that my surgeon was extremely experienced. Indeed, it was not until he was 37 years old that he completed his arduous fellowship training that in turn allowed him to call himself a thoracic surgeon.
Not for the first time, I wondered why it was then that any kid out of law school or any office-practice lawyer could wander into my courtroom and take a federal felony case to trial or plea as counsel for the defendant if he or she was retained to do so by the defendant. Not to put too fine a point on it, that’s crazy. Nevertheless, virtually every day we stand by and watch inexperienced lawyers muddle about representing people charged with federal felonies merely because they passed the Nebraska Bar exam and someone was dumb enough to hire them.
I propose that no lawyer be permitted to practice federal criminal defense law until he or she has been certified as sufficiently experienced to do so. We have the authority to require compliance with such a rule. See, e.g., Brown v. McGarr, 774 F.2d 777 (7th Cir. 1985) (upholding local rule requiring that a lawyer admitted to practice generally in the federal district court must also belong to the local federal “trial bar” before being allowed to appear alone either on behalf of a defendant in a criminal proceeding or during testimonial proceedings in a civil case); ND.Ill.LR83.11. Trial Bar
And I particularly mean that such a prohibition should be applied aggressively to retained counsel. For our federal public defenders, and our Criminal Justice Act panel lawyers, we already have mechanisms in place to assure basic competency. For example, in Nebraska, one cannot become a member of the Criminal Justice Act Panel without approval of the CJA Panel Selection Committee consisting of judges, the FPD and the CJA panel representative. A similar screening process should be applied to retained criminal defense lawyers.
What do you think?