[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

Justice ALITO, concurring.
. . . Unbeknownst to petitioner, he was effectively deprived of legal representation due
to the combined effect of no fewer than eight unfortunate events: (1) the departure from
their law firm of the two young lawyers who appeared as counsel of record in his state
postconviction proceeding; (2) the acceptance by these two attorneys of new employment
that precluded them from continuing to represent him; (3) their failure to notify petitioner
of their new situation; (4) their failure to withdraw as his counsel of record; (5) the
apparent failure of the firm that they left to monitor the status of petitioner’s case when
these attorneys departed; (6) when notice of the decision denying petitioner’s request for
state postconviction relief was received in that firm’s offices, the failure of the firm’s mail
room to route that important communication to either another member of the firm or to
the departed attorneys’ new addresses; (7) the failure of the clerk’s office to take any action
when the envelope containing that notice came back unopened; and (8) local counsel’s very
limited conception of the role that he was obligated to play in petitioner’s representation.
Under these unique circumstances, I agree that petitioner’s attorneys effectively abandoned
him and that this abandonment was a “cause” that is sufficient to overcome petitioner’s
procedural default. . . .
What occurred here was not a predictable consequence of the Alabama system but a
veritable perfect storm of misfortune, a most unlikely combination of events that, without
notice, effectively deprived petitioner of legal representation. Under these unique
circumstances, I agree that petitioner’s procedural default is overcome. . . .
Lawyers and Clients:
Criminal Defense
Maples offers us a portal through which to glimpse the reality of criminal defense
representation in America. In most criminal cases today, defendants have a constitutional
right to counsel, but no right to adequate institutional funding to support it. As a result,
the dream that every person charged with a serious crime “will be capably defended . . . sure
of the support needed to make an adequate defense” 1 remains illusory.
Legal recognition of constitutional rights to defense counsel created the need for large
numbers of lawyers qualified to handle criminal trials. 2 This need for specialized expertise
has accelerated over the past few decades, as the number of those charged and convicted of
crimes has increased dramatically. Today, about two-thirds of those accused of a felony are
poor enough to qualify for appointed counsel. 3 As a result, lawyers in public defender
offices often shoulder huge caseloads, and private appointed counsel often face an “inherent
conflict between remaining financially solvent and the defendant’s need for vigorous
advocacy” 4 because of inadequate fee schedules. These workload and financial pressures
present a huge impediment to the provision of effective legal assistance.
The “Six C’s”
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