In Massachusetts, two brothers were convicted of murder. During the course of their trial, they agreed to cooperate with a group of filmmakers from Public Broadcasting who made a documentary of their trial. As part of that — apparently unknown to the brothers and the judge at first — their attorneys wore concealed microphones.
After being convicted, the brothers — with new, unwired counsel — sought a restrial, saying that their rights were violated by this unwanted recording. A judge agreed, saying that their rights to lawyer-client confidentiality were violated.
I happen to agree with the judge’s decision in this particular case — it seems pretty obvious to me that their lawyers were, indeed, blinded by the filmmaker’s spotlight and let their legal duties take a secondary role. But I’m going to use it to bring up an idea I had a while ago to help fix our legal system.
One of the most common grounds for overturning a conviction is incompetent counsel. I have no problems with this; everyone’s human, even (most) lawyers, and mistakes are inevitable.
But when a lawyer makes a mistake so egregious as to merit an entire retrial, I think that is something else. That requires extra attention.
I’d like to propose that any time a retrial is granted for incompetent counsel, the attorneys that made the mistake in that first trial have their law license suspended immediately. They would be unable to practice law until the state Bar Association investigates and certifies that the attorney in question is, indeed, competent and qualified to continue practicing law. They could hold a hearing, test the attorney, or require them to take and pass remedial classes to prevent future occurrences.
This strikes me as a win-win situation. Either lawyers will cut back on using the “incompetent counsel” argument, out of fear that it could be used against them, or lawyers will start preying on each other with a vengeance.
And the argument is seductively simple. If a lawyer makes that serious a mistake, then they OUGHT to be stopped from practicing law until they prove they won’t make that level of error again.