Wrongful convictions are real. They have enormous costs to governments and society and tragic consequences for the unjustly convicted. We are proud of our ideals of ensuring that everyone will be afforded due process as they face a loss of liberty or their life—so proud that we export our rule of law to “less-developed” countries. Yet, the gap between our proclaimed ideals and daily realities is too often large. Our criminal legal system has many outstanding people who always act professionally and fairly. But we know that our system too often fails because of the biases of people, the inequality of resources, and the stampeding of safeguards. Since 1989, there have been 3,528 exonerations of the wrongfully convicted in the United States. It would not be unreasonable to believe these are but the tip of the iceberg of unjust convictions. The consequences of the many human and systematic flaws in our criminal legal system are significant financial costs for governments and taxpayers—nearly $4 billion—but more importantly, tragic consequences for individuals whose lives are ruined by the loss of years of their freedom. In addition, the true perpetrators of these crimes are not held accountable, and public confidence in the reliability of the legal system diminishes. The Innocence Project’s Hannah Fitzsimons and Christina Swarns call us to arms in their stunning article, “How Much Do Wrongful Convictions Cost Government Entities?” Commonsense reforms that would reduce the chances of these injustices and the enormous costs to taxpayers are within our reach. Are we willing to grab them?
August 02, 2024 Feature
Message to the Members, Summer 2024
Edward Monahan
Editorial Call for Information
The article on wrongful convictions identifies changes that governments and their agents can implement to reduce the risk of liability and unreliable results of our criminal legal system. In a future issue of The Public Lawyer, we would like to publish models of reforms that have seen tangible results. Please tell us what you know. Send your information to [email protected].
Conflicts and Transitions
Lawyers move from private practice to government work and from government to private employment practice. This issue offers advice from time-tested professionals on distinctive government conflict considerations and the transition to private practice.
We all know that the hallmark of effective legal representation is providing “independent professional judgment” to clients competently, timely, and confidentially. This can only be achieved by a lawyer who does not have incompatible interests with and duties to the person being represented. Conflicts of interest are a complicated ethical area that requires constant attention. Government attorneys face such special complexity that there is a distinct ethical provision providing guidance: ABA Model Rule of Professional Conduct 1.11, Special Conflicts of Interest for Former & Current Government Officers & Employees. Wendy Muchman, Professor of Practice at Northwestern University Pritzker School of Law and GPSLD Immediate Past Chair, helps us understand the application of Rule 1.11 and the guidance of ABA Formal Ethics Opinion 509 (February 28, 2024), Disqualification to Prevent the Misuse of Confidential Government Information.
William Bridges, author of The Way of Transitions: Embracing Life’s Most Difficult Moments (2000), distinguishes between a change (a situational shift) and a transition (a developmental transformation). He identifies three phases of significant transitions: the ending of the way things used to be, the turmoil during the neutral zone, and the beginning of the new reality with all its ambiguities. Patricia A. Conners, Shareholder, Stearns Weaver Miller, Tallahassee, Florida, discusses five considerations for government lawyers contemplating a transition from working for the government to private employment.
Ramifications of Raising Revenue
One of the many important responsibilities of government lawyers is to provide comprehensive legal advice to officials when a public entity seeks to raise revenue. Does the public entity have the legal authority to create new ways of obtaining funds? How can the funds raised be legally used? ABA Model Rule of Professional Conduct 2.1, Advisor, describes the important role of a lawyer to provide candid advice to a client, and in delivering that advice, “a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.” Will Glasson, Senior Assistant County Attorney, Multnomah County Attorney’s Office, Portland, Oregon, provides insights on the practical and legal duties of this role.
Possibilities
Top-notch lawyers always seek to achieve for their clients what is possible. They are never satisfied by what is probable. They also do that for themselves. As French essayist Charles Du Bos observed, “The important thing is this: to be able at any moment to sacrifice what we are for what we could become.” Government lawyers, in fact, do this daily.