Technical Competence versus Ethical Competence: Why trying your best doesn’t cut it

Don’t simply be technically competent. Have ethical competence. This blog has featured acts of complete ethical failure in various crime laboratories. It is time that this blog also begin to feature another crucial part of the justice system: the criminal defense trial attorney. Too many times we read about exonerations or overturned convictions and find ourselves asking: “How can that possibly happen?” Many times it is simple answer that presents itself. We are able to assign a “bogey man” and point to the primary cause such as poor quality assurance, lack of a validated method or purposefully hidden Brady or Giglio materials in the crime laboratory. But in doing so we totally ignore a major contributing factor: undertrained and undereducated criminal defense trial attorneys. As I frequently preach to my colleagues just because you are technically competent to represent someone does not mean that you are ethically competent to represent someone. In other words, just because you could, doesn’t mean you should.

As I am sure that all will agree that there is a large difference between technical competence and ethical competence. The former exists for attorneys simply because we draw breath and have a law license. The former comes through intensive training in the core competence subject matter. Big difference.

As you can imagine, this message draws a lot of ire both publicly and privately from my colleagues.

Many of them believe that if they “try my best with what I’ve got,” then they have fulfilled their role of ethics. Nothing can be further from the truth.

The citizen among us accused doesn’t care if we “try our best.” He or she cares about keeping his or her family together. Being able to see his or her son grow up on a daily basis. To physically hug and kiss his or her loved one. To be a human being. “Trying our best” doesn’t correct a wrongful conviction.

To be clear, if you cannot handle a case perfectly or be more perfect than anyone else who is available, you ought not, you must not pick up that case. There is more here than money. There is more here than glory. There is ethics and human compassion.

The sad truth is that there has been a slow and painful erosion of the promise of the 6^th Amendment and of Strickland of competent counsel. Even the American bar Association Model Rule 1.1 offers little refuge for the citizen accused.The sad refrain and excuse for bad lawyering and the trumpeting call by the ineffective has been “no one is entitled to a perfect trial, just a fair one.” The layperson would be shocked to know how little guarantee there is in the notion of a constitutionally “fair” trial. The battle line for preventing a false conviction truly and honestly begins with the trial attorney. Just because you could, doesn’t mean you should.

I say emphatically and with pride, if you don’t have the core competence, the only ethical thing to do is refer it out or associate with someone who does.

Many trial attorneys do not appreciate this message. They rationalize to themselves that in the real world that clients frequently do not have money, cannot fund their defense, and therefore they cannot be expected to achieve core competence in the hyper competitive market because to do so is unachievable. They also posit that if they were only to take cases where they have achieved ethical competence as I describe it, then they will not survive in the marketplace. In other words, they suffer. Perhaps this is true for them. All of those concerns are irrelevant to the person accused. Again, core subject matter competence and ethical competence in forensic science or criminal law takes a lot of time, hard work and study. It’s not hard, but rather hard work. Few choose to try to achieve it, let alone gain it. Some of my colleagues call me an extremist because I actually believe that lawyers should have training in what they do before they do it. It is the United States; people can have different beliefs. I’m quite sure that a lot of attorneys feel other than I do, but I doubt many consumers would.

For example, if it were known to the consumer that a given attorney has never even seen a Gas Chromatograph and has no idea how to interpret data from it, do you think that the consumer would or should feel comfortable with choosing that attorney to defend him or her in a case such as an arson that turns on the analytical chemistry result? If the attorney has not been through the formal commercially available NFPA training in NFPA 921 that fire scientists take, should he or she really be handling arson cases? So many attorneys handle forensic firearm and toolmaker cases and have never even heard of the word tribology? I personally think that if you do not have training in the NHTSA core curriculum of the SFSTs and DRE and do not have the subject matter competence in it, then yes you should always refer out the DUI case out to someone who has. The same is true with the analytical chemistry in DUID cases. If you don’t know what a TIC is or how SIM mode works, then how can you competently defend a DUID case? If you don’t know well basic spectroscopy then how can you competently defend a BrAC result? If you don’t understand the method of testing that yields an opinion by a crime laboratory analyst that an unknown seized white powder is in fact cocaine, and how that can possibly be wrong, then yes, you should not handle that solid drug dose possession or possession with the intent case. The list goes on and on.

For a non-criminal defense lawyer, the answers to the above seem obvious, but for some bizarre reason, the criminal defense community actually believes that true knowledge is not necessary and core competence is optional. How is that right?

All across America, lawyers take money and/or agree to represent people that they have no ethical business doing so. It is sinful.

No one can force you to be unethical in your actions. It is a choice. It doesn’t matter if you are a public defender and there is no money for training and no mentorship program for learning or if you are a 6-figure commanding big name attorney. If you choose to continue to take on clients without saying no when you are not ethically competent, then you have made a choice to be unethical.

I live this advice. It is what I do in a fair amount of cases that come to our firm such a SORNA retroactivity, securities fraud, environmental law and other technical cases tat we have no training in that field. We don’t simply take the money and “try our best.”

For example, I was offered to be an attorney involved in a very high profile case involving a corporation and its president that was targeted by the AG for a very very large fee. That was their offer, not my quote. I turned it down because I know nothing about securities law. No one in my firm does. It would be wholly unethical for me to represent this corporation and this individual even if I “tried my best.” I referred it out. You know what? They never even got mentioned in the grand jury presentment and the indictment that followed. That was awesome. I doubt on my best day I could have done as again I know nothing about securities fraud.
For our DUI defense attorneys here at this firm, not a single associate in this office handles a real person’s case for any type of accusation unless they have at a minimum the following courses:

1. Every single NHTSA course (SFST practitioner, SFST instructor, ARIDE, DRE)
2. Terry MacCarthy On Cross Examination
3. Paul Homoly on How to Present (How to be an Interesting Expert)
4. A BrAC operator class and certification
5. The summer session of NCDD
6. The Hands-on ACS Forensic GC class.
7. Pharmacological training
8. For a minimum of six months and in one case over a year and a half, the new hire regardless of previous experience has to shadow me doing nothing else but prepare, issue spot and litigate cases with me.

I feel the same way about appeals. Our appellate specialist, T.C. Tanski, received a lot of training in appellate work, specialized writing and oral advocacy from Brian Garner and the National Appellate Lawyers Institute. That’s why he writes and argues our appeals and those who retain us just for appeals.

For far too long, the attitude of “try my best” among my colleagues has persisted. It is high time that we as a community demand ethical competence, not simply technical competence. Doesn’t justice demand that too?
All thoughts are welcome.