The View From Here

On Making Mistakes, Money, and Meaning

by Olcott Thompson, OCDLA President

From the June/July 2018 issue of The Oregon Defense Attorney

I hope everyone read The Oregonian’s articles about quality problems in public defense juvenile cases and Lane Borg’s response (for links to articles see Lane Borg's “OPDS Update” on page 6 of the June/July 2018 issue of The Oregon Defense Attorney. While the articles focused on OPDS’ lack of quality control over the lawyers appointed to represent children, they also reflected problems inherent in the representation of individuals accused of crimes against the government. Yes, there are problems with OPDS oversight but, far more importantly, there are problems with the quality of our representation: all of us—not just appointed counsel, not just those new lawyers who will take any case they get their hands on—all of us.

Think back on the growing number of appellate decisions granting post-conviction relief. Thanks to improved post-conviction lawyers at both trial and appellate levels there are now more grants of post-conviction relief. However, there may not be a larger percentage of cases in which counsel made an error that harmed their client; it may be that the errors are just getting found more often.

Why all these mistakes? First, we are all human and we make mistakes. For mistakes—thank goodness—there is the availability of post-conviction relief. No good lawyer wants their client to bear the consequences of defense counsel’s mistake. That is why, should a post-conviction lawyer come knocking on your door, answer it and give him or her the information they seek. Chances are your representation was fine. But, if it wasn’t, why should your client be penalized?

Having represented many clients in post-conviction relief cases, I know that many times mistakes were made, but these mistakes usually did not matter to the outcome. The attorney who made the mistake was usually underpaid, either as retained or appointed counsel and, therefore, could not put the necessary time into the case. It is human nature not to want to put in lots of time when you know you are just going further in the hole financially or you have 20 other clients you need to see and work with on their cases.

The solution is sufficient pay. For retained work make sure you, as John Henry Hingson, III, said at the recent DUII seminar, “charge enough to do a great job.” Do not sell yourself short. You have skills and, hopefully, the passion to represent individuals against allegations by the government. Your passion will take you far. You need attorney fees and you need resources to properly represent your client, likely more resources than you think. Is it better to work for peanuts or only work half as much for a reasonable fee? Working only half as much means you can spend more time with your family and friends and be creative, which helps your law practice. Most of us are the most creative when we have the luxury of time to just think, as opposed to when we are rushing from place to place simply trying to stay afloat.

Passion is important but we also need to keep up with the law. This is where OCDLA comes in. OCDLA has great seminars (which you can easily attend if you are working only half the time for reasonable fees). These seminars allow you to take some time off and to be creative in great locations. We also have Books Online—a great resource of eight OCDLA manuals to find the answers to common or tricky questions. And when you can’t find an answer there the members’ listserve—the “Pond”—is available as yet another resource.

Meanwhile, we need to make sure our legislators know the true economic cost of the lack of defense funding. There is a cost to the children—who are blameless, everyone’s favorite. They did not create the mess they are in and they deserve better. Also, we should not ignore the cost to everyone else. Parents who have criminal issues deserve better paid lawyers so their lawyer is not scrambling to help too many clients. Their lawyer can then devote the necessary resources to helping the parent be a better parent and, ultimately, saving the state lots of money in a reduced need for foster care.

More money for lawyers means they have the time to represent their clients and, in the process, make fewer mistakes. Fewer mistakes means fewer cases coming back—sometimes years later—to be retried. The cost of the original defense plus the cost of the appeal and the cost of post-conviction representation along with all the court time and cost of the state’s lawyers is wasted money. If the defense lawyer had the money and time to adequately represent her client the first time, significant money could be saved.

Think of all those “continuing plain error” imposition of attorney fees cases (See e.g. State v. Graves, 278 Or App 126 (2016); State v. Hernandez-Camacho, 278 Or App 565 (2016)). Why haven’t we learned to object to the court imposing attorney fees without a finding that our client has the ability to pay? Don’t allow the court to get that information from the client, either. Mitchell v. United States, 526 U.S. 314 (1999), says our client does not have to supply that information.

Mitchell is an example of the great nuggets one can pick up at OCDLA seminars. Having the time and funds to attend seminars must be a priority. How else can we keep up with the new laws the legislature passes and all the appellate court opinions? Now that the Oregon Court of Appeals has been expanded from 10 judges to 13 there are one-quarter more decisions to keep up with.

Come to Bend for the Annual Conference for a great opportunity to learn. You can also let the Public Defense Services Commission know your thoughts Thursday morning during the commission meeting. Don’t forget to buy a raffle ticket or two for the Hawaii seminar—learning and time to be creative—in the sun in November. Even if you don’t win, come anyway and know you are supporting a great organization, which supports you as you battle the government.