Volunteers Be Gone?

Following Hurricane Katrina, the Louisiana Supreme Court put out a welcome mat for volunteer lawyers: The Court issued a special rule to allow out-of-state attorneys to represent, on a pro bono basis, indigent defendants facing criminal charges in Orleans Parish as long as a Louisiana attorney co-signs all pleadings and provides "oversight and supervision" of the volunteer. The evident purpose of this rule was to allow the underfunded Public Defenders' Office to draw on volunteers to help resuscitate the public defense system that was floundering post-Katrina. I and other volunteers have been operating under this rule for several months, essentially serving as adjunct public defenders. That may be about to change after the the Chief Judge of the Criminal Court ruled yesterday that out-of-state attorneys may not represent indigent defendants unless a Louisiana-licensed attorney is present for all court proceedings. Volunteers still may be welcome in spirit, but their value may be seriously diminished.

Having volunteer lawyers lightens the load for the full-time public defenders and enables the full-time staff to shift their efforts to other clients and matters. Requiring the regular public defenders to be present in the courtroom every time a volunteer appears for a hearing would diminish that value. Indeed, if the regular public defender has to be present anyway, one might say we should do away with the volunteers altogether.

I'm not bothered by having another lawyer present. Indeed, given my limited experience, I welcome the back-stop -- someone to grab the wheel if I'm veering off course and heading for a tree. But I don't think there is any need for a local lawyer to be present at every hearing. Nor do I think there is much need for local lawyers to hold the hands of more experienced out-of-state attorneys. After all, there is not a great deal of variation in criminal defense from one jurisdiction to the next. And as long as the local lawyers are providing "oversight and supervision," there should not be any concern that an experienced out-of-state lawyer will skip over important variations in the local practice. Most jurisdictions have "pro hac vice" rules that enable out-of-state lawyers to practice locally for limited number of cases under similar circumstances without requiring the local lawyer to be present at every hearing. While the Louisiana Supreme Court's rule in these circumstances does not limit the number of cases a volunteer can handle, it it not clear why the rule should be more onerous than the customary pro hac vice rules.

One could read the Chief Judge's ruling cynically to reflect a disdain for outsiders coming in and gumming up the "old way" of doing things. I very much doubt, however, that is fair and accurate. I think the judges generally appreciate the value of the volunteers, and I am confident that the judges are not interested in merely having local lawyers serve as ornaments or potted plants in the courtroom. But neither do the judges want to oversee moot courts for inexperienced out-of-staters, setting up instant grounds for appeal for dissatisfied defendants. (Of course, volunteers typically offer vigorous and thorough representation that over-extended public defenders may not be able to provide to every client.) In any case, the Chief Judge's ruling is being appealed, and I suspect this matter will be resolved to the satisfaction of everyone to ensure the adequate and effective representation of indigent defendants.