THE CITY COMMISSION that disciplines judges at the D.C. Superior Court privately admonished Judge Robert M. Scott recently, and in doing so raised an issue that has been brewing among defense lawyers there for years.
Scott, 57, a judge for two years, warned a defense lawyer in 1977 that, because of the lawyer's refusal to accept, on a prosecution motion, a routine statement of certain facts in a case, Scott no longer would appoint the lawyer to criminal cases in which fees are paid by the court.
It was not the first time that the Commission on Judicial Disabilities and Tenure had expressed concern about judges using the court-appointment system to coerce lawyers to behave the way the judge sees fit.
But the way the system works at Superior Court, it is the judges who decide which lawyers get cases and it is the same judges who decide how much the lawyers get paid for their effort. For many lawyers, those court appointments are their livelihood.
Now a committee of lawyers, chaired by Superior Court Judge Leonard Braman, not only has recommended that that system be eliminated but they've also proposed an ambitious plan for improving the quality of legal help in court-appointed cases.
Meanwhile a D.C. Bar committee has received a $45,000 grant from the Law Enforcement Assistance Administration to fund an 18-month study of the appointment of lawyers in criminal cases and implement a new appointment plan. Among other things, that committee is trying to come up with a plan that would require the appointment of so-called "uptown" lawyers to criminal cases -- "downtown" -- at the Superior Court, according to the bar committee chairman, Herbert E. Forrest.
The uptown bar never has been too keen on mingling with the regulars at the Superior Court -- the lawyers who make their living by being appointed by the court to represent defendants who can't afford to hire a lawyer. The money for their fees -- about $3 million annually -- comes from the federal Criminal Justice Act. Their vouchers for time spent on a case are reviewed, and often reduced, and then approved by the judge who presided over the case.
Forrest said that the Bar committee has considered canvassing the city's 50 biggest law firms for volunteers who would take an appointment to a criminal case, perhaps once a year. The Bar is well aware that some of those lawyers may know little or nothing about the way the criminal courts operate. One solution would have the uptown lawyers work as cocounsel with experienced criminal lawyers, Forrest and others said.
The Braman committee has taken a careful look -- over a two-year period -- at theappointment system. As a result, the members came up with "eligibility standards" for attorneys appointed to cases, procedures for removing lawyers from those cases, and a rotation system of appointments to cut down on time wasted by lawyers as they sit around in Courtroom 17 waiting for a judge to appoint them to a case. That system also would ensure fair distribution of cases to lawyers who are eligible to take a case, the committee said. A lengthy report on the Braman committee plan has been distributed for comment to Bar groups and the judiciary.
Some of the regulars down at the court are grumbling that the Braman committee plan will hurt their chances for appointment to criminal cases. The fact is that while the quality of defense lawyers at Superior Court has changed dramatically for the better over the past decade, there still is room for improvement. The least that can be done is to hold lawyers to some meaningful standard of competency in a criminal case.
The rotation system proposed by the Braman Committee would eliminate the need for lawyers to hang around the court day after day waiting for appointments. Instead, they'd report to the court a couple of days a month. But the lawyers who practice at the court make their living "by being available," said John H. Treanor Jr., the president of the Superior Court Trial Lawyers Association. "If you're there, somehow business comes in," he said.
"The idea is that the [lawyers] most available [to take court-appointed cases] are not necessarily the ones who should get them," bar committee chairman Forrest said.
"Well, that's true, but it's no more true down there [at the court] than it is in the fancy law offices on Connecticut Avenue," Treanor responded later. As the Braman plan stands now, Treanor said, "it simply is going to cut into the livelihood of a lot of very capable guys down there."
Most significant is the Braman Committee's suggestion that an independent board of trustees be set up to relieve the judges of the task of appointment and payment for defense lawyers. The bench would be happy to get out from under both those responsibilities.
There is some disagreement within the committee as to how that board should be set up and who should sit on it. But "there is no disagreement," the committee said in its report, "on the basic principle that it should be separate from and independent of the courts."
In addition to the Braman and Forrest committees, two other groups have examined the court appointment system, with one effort dating back to 1974. Whether it takes a vote by the board of judges, approval of the City Council or new legislation, it's about time for something to be done.
OBITER: John S. Irving has left the National Labor Relations Board, where he was general counsel for four years, for private practice with the Chicago-based firm of Kirkland & Ellis. Irving, 38, plans to assist the firm in setting up a labor relations practice in its Washington office. Meanwhile, President Carter designated Norton J. Come, 59, to serve as the NLRB's acting general counsel. Come has been chief of the NLRB's Supreme Court litigation branch for 20 years . . . Sandra DeMent has left her job as director of the National Resource Center for Consumers of Legal Services. DeMent, 30, will be executive vice-president of Bankers Legal Services Corp., a subsidiary of Bankers Life and Casualty Co. in Chicago, which plans to market prepaid legal insurance . . . Richard Cooper, 36, has resigned as chief counsel to the Food and Drug Administration, effective at the end of this year. Cooper said he plans to enter private law practice in Washington, but has not decided with whom . . . Raymond S. Calamaro, the former deputy assistant attorney general for legislative affairs, has become counsel to Winston & Strawn in Washington. Peter N. Kyros, Jr., formerly deputy chairman of the Federal Council on the Arts and the Humanities has joined that firm . . . And finally, it's official. Deanne C. Siemer has formally resigned as general counsel at the Department of Defense. Siemer now takes up permanent residence at the Department of Energy, where she has been working for the past several months as a special assistant to energy secretary Charles Duncan, who used to be second in command at Defense.