Category Archives: Legal Ethics

Missouri v. Frye- Maybe the defense lawyer and not the defendant should go to jail.

Galin Frye was a serial revoked-license driver, with 3 convictions on his rap sheet. Arrested for a 4th time for driving with a revoked license, Frye was charged with a felony carrying a maximum term of 4 years in prison. The prosecutor sent Frye’s lawyer a letter: if Frye pleaded guilty, the charge would be reduced to a misdemeanor and the prosecutor would recommend a 90 day sentence.

Generous as this deal might seem, Frye never had a chance to accept it. The reason: his lawyer never bothered to tell him about the deal, and the deal expired. Frye eventually was arrested for a 5th time for driving with a revoked license. This time he plead guilty and was sentenced to 3 years in prison. Frye challenged the sentence, arguing that his defense lawyer’s ineffective assistance violated his Sixth Amendment right to competent counsel. Had he known about the prosecutor’s offer to the 4th charge, Frye argued, he would have pleaded guilty in a nanosecond and been spared a lengthy prison sentence.

In Missouri v. Frye (2012), the US Supreme Court upheld Frye’s claim. The majority and dissenting opinions debate the wisdom of putting the plea bargaining process under the microscope of the Sixth Amendment. But the shameful behavior of Frye’s lawyer is shocking. Or it would be if it didn’t confirm so many complaints about the shoddy representation provided by all too many criminal defense lawyers.

Neither the majority nor the dissenting opinion mentions the name of Frye’s lawyer, or indicates whether the lawyer was a public defender, a “panel” lawyer appointed by the court or a privately retained lawyer. But it shouldn’t matter. Ethical guidelines adopted by the American Bar Association and virtually all states require criminal defense lawyers to communicate and explain all plea proposals. Sadly, this case is a reminder that in the trenches of the criminal justice system, far too many defendants suffer because of the ineptitude of their lawyers.

Fengling Liu and Ghostwriters for Pro Se Litigants

Legal representation has traditionally been an “all or nothng” arrangement. You turned a legal dispute over to a lawyer or you appeared in court “pro se,” meaning that you represented yourself.

Limited-scope representation, also called unbundling, occurs when clients keep control of their cases but hire lawyers to perform specific tasks. For example a client who needs to file a “brief” in court may hire a lawyer to ghostwrite it. A judge may not know that a client has hired a ghostwriter, because typically the lawyer’s name does not appear on the brief. The American Bar Association’s Model Rule 1.2(c), which many states have adopted, allows lawyers to offer unbundled services. However, many federal court judges are light years behind the curve. In some federal court districts, ghostwriting is considered to be an unethical fraud on the court, and lawyers who unbundle to help clients who can’t afford to pay full price for justice may be fined.

In the 2011 Fengling Liu case, the Second Circuit federal court decided to accept limited-scope rpresentation as an idea whose time has come, even to federal courts. Here’s hoping that the trend continues. If a prisoner wants to file a brief in support of a habeas corpus petition in federal court, a ghostwriter can help both the prisoner and a judge interested in knowing whether the petition has any merit.