A story in Monday's Washington Business on Continuing Education incorrectly attributed a quote to a report to Congress by Alice Rivlin of the Congressional budget Office. The quote was from a speech by Louis O. Stewart, education director of the Washington State Labor Council, AFL-CIO.
Last Wednesday, the Board of Judges of the D.C. Superior Court approved the first major step toward a total overhaul of its system for providing poor defendants with free lawyers.
The proposed plan is the combined brainchild of two committees, one chaired by Supreme Court judge Leonard Braman and the other by Herbert E. Forrest for the D.C. Bar, the work of two consultants, Steffen W. Graae and Howard B. Eisenberg, and $50,000 in funding from the Law Enforcement Assistance Administration.
And their efforts received a considerable boost from Judge William E. Stewart Jr. who in June 1978 suggested in a memorandum that the time had come for the organized bar to relieve the judiciary of responsibility for selection and supervision of court-appointed lawyers.
The new procedures would apply to lawyers who take appointed cases in both the Superior Court and the D.C. Court of Appeals. The local court's top administrative committee and the appeals court still have to make some decisions before anything will change -- but some observers are optimistic that the new system could be in operation in two to three months.
The vote by the judges last week, marked by a handful of dissents, was no small gesture. For one thing, the judges gave up their power to select the lawyers for those cases and agreed to turn that appointment process over to a new, independent D.C. Criminal Justice Act Agency -- named for the federal law that provides about $3 million a year to pay those lawyers.
Some defense lawyers felt the judges could use their appointment power to retaliate against them for whatever reason -- and some judges showed that was true. Under the new plan the CJA director will designate cases on a strict rotational basis, giving the judges and the lawyers the independence they should have had all along.
Lawyers will also have to qualify to be eligible for appointment to certain types of cases. For example, a lawyer would qualify for appointment to a serious felony case, which carries a maximum penalty of life in prison, if he or she has attended a continuing education program approved by the CJA agency within the previous 24 months and has accumulated a certain amount of felony trial experience, either as a private lawyer, a prosecutor or a public defender.
Most importantly, the plan calls for the D.C. Court of Appeals to expand its disciplinary authority over lawyers to include violations of defense practice standards for lawyers who take indigent cases from the CJA agency.
Specifically, the court's Board of Professional Responsibility -- which can discipline, suspend and disbar errant lawyers -- would get new power to suspend a lawyer from eligibility for court-appointed cases because of a violation of the defense practice standards.
"Right now they don't have the power to suspend a CJA lawyer from CJA practice, they have to kick him out of the legal practice. This plan gives them this intermediate sanction," one observer commented.
"The ultimate discipline would be removal from the panels of lawyers who can get (CJA) cases," this observer said. And that would be no small matter to many lawyers at Superior Court who make their living off CJA cases.
Assuming the court of appeals gives the board that extra authority -- as it should -- the bottom line is whether the board will be able to get up the gumption to take disciplinary action when it's needed. Some observers are a little skeptical about the prospects, since the board has faced some criticism for being light-handed.
The new plan isn't going to clear the poor-quality lawyers out of Superior Court right away.There are so-called grandfather clauses in the new plan that will give those lawyers the same shot at eligibility as the most qualified members of the bar. But hopefully, if the court of appeals does its job, there will be a policy of quick sanction for bad performance.
Installment two is still to come, and it involves another, long overdue change. It is expected to propose a plan in which the judges will relinquish their authority to approve, deny or reduce vouchers submitted by lawyers for payment in connection with court-appointed cases.
The ever cautious Superior Court judges have kept their options open on the first phase of the plan. When the new procedures do go into effect, the chief judge of the Supreme Court will appoint a committee of judges to monitor the operation. That oversight committee must report back to the board of judges within 180 days with a recommendation on whether to continue new procedures.
It's hard to figure why any of the trial judges, who have seen the best and the worst in their courtrooms, would be reluctant to give their wholehearted support to a proposal to improve the quality of lawyers in the criminal courts.
One lawyer theorized that the judges may be concerned that the Board on Professional Responsibility can't handle the job of disciplining the Superior Court defense attorneys. If that turns out to be true, then the only other solution is to find -- or even create -- another independent board to do the job because such things are not the business of the judges.