I just . . . wow, this one of the best letters I've ever read.

[dismal]

The LAW says he can "delegate" the representation.

It does not say he can compel someone to represent someone involuntarily.

He could hire the governor and pay him to represent someone though.

 

[Don2 (Don1 Revised)]

Delegate and contract are synonymous in this situation.

The governor isn't rejecting a contract since no particular price was named. He's rejecting defending someone wholesale irrespective of any price that could theoretically be agreed upon.

 

[coloradoatheist]

This will be an interesting argument and may actually need to go back to what the legislatures were intending when writing the law. They didn't use compel, they chose delegate which has a different meaning.

 

[dismal]

Delegate and contract are synonymous in this situation.

The governor isn't rejecting a contract since no particular price was named. He's rejecting defending someone wholesale irrespective of any price that could theoretically be agreed upon.

Delegating cases to someone who you have not secured an agreement from to take them sure sounds like gross incompetence to me.

 

[Don2 (Don1 Revised)]

The governor isn't rejecting a contract since no particular price was named. He's rejecting defending someone wholesale irrespective of any price that could theoretically be agreed upon.

Delegating cases to someone who you have not secured an agreement from to take them sure sounds like gross incompetence to me.

Perhaps you should spend less time sleeping and more time getting your moral priorities in order.

 

[Trausti]

This will be an interesting argument and may actually need to go back to what the legislatures were intending when writing the law. They didn't use compel, they chose delegate which has a different meaning.

They can't use compel. There's a constitutional proscription against involuntary servitude, you know?

- - - Updated - - -

Delegate and contract are synonymous in this situation.

The governor isn't rejecting a contract since no particular price was named. He's rejecting defending someone wholesale irrespective of any price that could theoretically be agreed upon.

He'd be declining the public defender's offer to represent. Which he, and all the other attorneys in Missouri, has a right to do.

 

[coloradoatheist]

Delegating cases to someone who you have not secured an agreement from to take them sure sounds like gross incompetence to me.

Perhaps you should spend less time sleeping and more time getting your moral priorities in order.

Not quite. Was the statue written to force anyone on the bar to be a public defender or was it allowed for the public defender to get help so they could find anyone that has passed the bar that wants to help to be a defender?

 

[Don2 (Don1 Revised)]

They can't use compel. There's a constitutional proscription against involuntary servitude, you know?

- - - Updated - - -

Delegate and contract are synonymous in this situation.

The governor isn't rejecting a contract since no particular price was named. He's rejecting defending someone wholesale irrespective of any price that could theoretically be agreed upon.

He'd be declining the public defender's offer to represent. Which he, and all the other attorneys in Missouri, has a right to do.

It wasn't an offer, it was a delegation.

- - - Updated - - -

Perhaps you should spend less time sleeping and more time getting your moral priorities in order.

Not quite. Was the statue written to force anyone on the bar to be a public defender or was it allowed for the public defender to get help so they could find anyone that has passed the bar that wants to help to be a defender?

No I was talking about dismal's calling the director grossly incompetent as opposed to the governor grossly neglectful. That's a bad moral judgment call to focus on a theoretical mistake (or maybe just noisemaking) instead of the governors' actions.

 

[Trausti]

They can't use compel. There's a constitutional proscription against involuntary servitude, you know?

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Delegate and contract are synonymous in this situation.

The governor isn't rejecting a contract since no particular price was named. He's rejecting defending someone wholesale irrespective of any price that could theoretically be agreed upon.

He'd be declining the public defender's offer to represent. Which he, and all the other attorneys in Missouri, has a right to do.

It wasn't an offer, it was a delegation.

Misusing that word doesn't change reality. Substance over form, as we attorneys say.

 

[dismal]

No I was talking about dismal's calling the director grossly incompetent as opposed to the governor grossly neglectful. That's a bad moral judgment call to focus on a theoretical mistake (or maybe just noisemaking) instead of the governors' actions.

It's not an either/or. It's not even a question of "my morality".

Delegating a person's defense to someone who has not agreed to take it is grossly incompetent on its face.

 

[Colonel Sanders]

It doesn't say the private lawyer can be compelled to serve. So I suppose he can just decline. Yawn.

I don't know what the rules of professional conduct in Missouri are, but under the ABA Model Rules, one is not engaging in the private practice of law if they are a government attorney, in-house counsel for a business, doing pro-bono work for the poor, or if they're a judge. So it appears that he is not engaged in the private practice of law, but is he still considered a publicly employed attorney? Under the State of Missouri, are there other statutes that would contradict the one quoted? What's the case history? What's the status of the defendant--how long has his case been pending?

The letter is great, and because it was written by a judge, it would seem to have some credibility behind it. I suspect he/she had more than one intern/assistant/whomever, go to town on the research for it, and it seems likely that the judge would have done their own homework on the matter as well.

The lawyerly answer: it depends.

 

[KeepTalking]

Delegating something to someone simply means passing on authority or responsibility to do that thing to them. It does not mean the person has to accept that authority/responsibility. As has been noted, the word "compel" would be used if the person were legally bound to accept the authority/responsibility, and that would be tantamount to involuntary servitude in this situation.

The only way I see that Nixon would be required to do this is if the State BAR has a provision that compels their attornies to accept such delegation. I doubt, however, that such a provision exists.

 

[dismal]

It doesn't say the private lawyer can be compelled to serve. So I suppose he can just decline. Yawn.

I don't know what the rules of professional conduct in Missouri are, but under the ABA Model Rules, one is not engaging in the private practice of law if they are a government attorney, in-house counsel for a business, doing pro-bono work for the poor, or if they're a judge. So it appears that he is not engaged in the private practice of law, but is he still considered a publicly employed attorney? Under the State of Missouri, are there other statutes that would contradict the one quoted? What's the case history? What's the status of the defendant--how long has his case been pending?

The letter is great, and because it was written by a judge, it would seem to have some credibility behind it. I suspect he/she had more than one intern/assistant/whomever, go to town on the research for it, and it seems likely that the judge would have done their own homework on the matter as well.

The lawyerly answer: it depends.

I read the statute. It contains not even the slightest hint that the director can compel private attorneys to provide this service. I can't imagine why someone would assume it did. When it doesn't.

The statute authorizes the director to hire private attorneys. It authorizes the director to delegate cases to private attorneys.

http://www.moga.mo.gov/mostatutes/stathtml/60000000421.HTML

 

[Don2 (Don1 Revised)]

Delegating something to someone simply means passing on authority or responsibility to do that thing to them. It does not mean the person has to accept that authority/responsibility.

A lawyer can quit being a lawyer, i.e. quit the bar, no?

As has been noted, the word "compel" would be used if the person were legally bound to accept the authority/responsibility, and that would be tantamount to involuntary servitude in this situation.

Okay, but judges can appoint lawyers to defend someone based on the Supreme Courts interpretation of the Bill of Rights as you see in Miranda Rights: "...if you cannot afford an attorney, one will be appointed to you..."

The only way I see that Nixon would be required to do this is if the State BAR has a provision that compels their attornies to accept such delegation. I doubt, however, that such a provision exists.

http://www.courts.mo.gov/courts/Cle...d2ef1fa039abe9bc86256ca6005211dc?OpenDocument

 

[KeepTalking]

A lawyer can quit being a lawyer, i.e. quit the bar, no?

Correct, but I am not sure what this has to do with the definition of 'delegate', or whether having responsibility delegated to a person compels that person to accept the delegation. Perhaps this relates to my later comment about the Missouri BAR? But that would be odd, as my comment on the Missouri BAR agrees that it is possible that the BAR might carry provisions that compel him to take the case. In that case, I would also agree that he could quit the bar to avoid this responsibility.

As has been noted, the word "compel" would be used if the person were legally bound to accept the authority/responsibility, and that would be tantamount to involuntary servitude in this situation.

Okay, but judges can appoint lawyers to defend someone based on the Supreme Courts interpretation of the Bill of Rights as you see in Miranda Rights: "...if you cannot afford an attorney, one will be appointed to you..."

Appointing a lawyer to defend someone who cannot afford an attorney speaks more to the defendant being obligated to accept the appointed attorney, and not that any random attorney can be compelled to defend that person. Even in that case, I think the defendant has some leeway if they feel they are not being properly represented.

The only way I see that Nixon would be required to do this is if the State BAR has a provision that compels their attornies to accept such delegation. I doubt, however, that such a provision exists.

http://www.courts.mo.gov/courts/Cle...d2ef1fa039abe9bc86256ca6005211dc?OpenDocument

Perhaps you should have perused your own link before offering it as evidence in favor of your argument.

From your link:

RULE 4-6.2: ACCEPTING APPOINTMENTS

A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause...

This is not a case of appointment by tribunal.

 

[Shadowy Man]

As has been noted, the word "compel" would be used if the person were legally bound to accept the authority/responsibility, and that would be tantamount to involuntary servitude in this situation.

Okay, but judges can appoint lawyers to defend someone based on the Supreme Courts interpretation of the Bill of Rights as you see in Miranda Rights: "...if you cannot afford an attorney, one will be appointed to you..."

Appointing a lawyer to defend someone who cannot afford an attorney speaks more to the defendant being obligated to accept the appointed attorney, and not that any random attorney can be compelled to defend that person. Even in that case, I think the defendant has some leeway if they feel they are not being properly represented.

But what can the court do if they don't have enough people and every private attorney turns it down? Does the defendant have a right to an attorney or not? Whose rights trump whose? The defendant's right to an attorney or an attorney's right to turn down the court?

This isn't a trick question, I simply want to know.

 

[Loren Pechtel]

What they should do is simply go to court and say:

"Due to inadequate funding we are not capable of representing this defendant. As the state has effectively kept him from his right to an attorney all charges must be dismissed."

...and that would accomplish nothing as the charges would never be dropped.

This, on the other hand, is a brilliant stunt that is a very public and direct attack on the imbecile who orchestrated the problem, and as a result has gained a lot of attention.

No defense would be provided, the Supremes would have quite a problem with convicting him.

 

[Don2 (Don1 Revised)]

As has been noted, the word "compel" would be used if the person were legally bound to accept the authority/responsibility, and that would be tantamount to involuntary servitude in this situation.

Okay, but judges can appoint lawyers to defend someone based on the Supreme Courts interpretation of the Bill of Rights as you see in Miranda Rights: "...if you cannot afford an attorney, one will be appointed to you..."

Appointing a lawyer to defend someone who cannot afford an attorney speaks more to the defendant being obligated to accept the appointed attorney, and not that any random attorney can be compelled to defend that person. Even in that case, I think the defendant has some leeway if they feel they are not being properly represented.

But what can the court do if they don't have enough people and every private attorney turns it down? Does the defendant have a right to an attorney or not? Whose rights trump whose? The defendant's right to an attorney or an attorney's right to turn down the court?

This isn't a trick question, I simply want to know.

The courts have said that the lawyer has to give up his time, but not his money. So he has to be compensated within reason. It's not that different than a doctor who has to save someone's life who is dying in need of emergency care regardless of whether the person dying has insurance.

 

[Colonel Sanders]

But what can the court do if they don't have enough people and every private attorney turns it down? Does the defendant have a right to an attorney or not? Whose rights trump whose? The defendant's right to an attorney or an attorney's right to turn down the court?

This isn't a trick question, I simply want to know.

It's a simple 6th Amendment issue. A criminal defendant has the right to be represented by counsel. It's one of the simplest and most plainly interpreted rights we have.

Now, a lawyer may or may not be compelled to represent a defendant depending on the circumstances. Usually, the public defenders are assigned to represent indigent clients. Also though, most cities and counties have a list of other outside private law firms to call for when the PDs are overwhelmed with cases. Not all local criminal defense firms are on the list though because often the City doesn't pay enough to make the case worth taking. But there's usually enough on the list and depending on the circumstances, it can be difficult to get on the list in first place. So if one of those firms is chosen, then the firm must take the case unless

1. It would be a financial burden
2. The attorney has such strong negative feelings about the case that he/she cannot provide proper representation
3. The attorney doesn't have the experience required for the matter and does not have time to become competent in the matter, or cannot associate with a more experienced lawyer in order to provide proper representation.
4. Other state conduct laws

So say all that comes to pass with every PD and firm on the list--nobody can take the case and all the reasons are legitimate. The City will generally then put out an advertisement for more firms to come in and offer to take the case or they'll have to find some other method to provide competent counsel. But then we begin running into time issues.

As to the matter of a case being held over for a lengthy period of time, well, then you get into the issue of the defendant's right to a speedy trial. The general federal rule, and the rule in most states is that if a defendant has not had their trial within a year, then the case must be dismissed. And that general rule holds that it must be the fault of the state that caused the delay. For example, a defendant can't keep asking for continuances, changing lawyers, and then on day 365 claim their right to a speedy trial has been violated.

Anyway, if the state utterly fails in its duty to provide counsel within an acceptable time, the case should be dismissed. HOWEVER, there are exceptions to every right and rule and the circumstances will dictate.

 

[Colonel Sanders]

I don't know what the rules of professional conduct in Missouri are, but under the ABA Model Rules, one is not engaging in the private practice of law if they are a government attorney, in-house counsel for a business, doing pro-bono work for the poor, or if they're a judge. So it appears that he is not engaged in the private practice of law, but is he still considered a publicly employed attorney? Under the State of Missouri, are there other statutes that would contradict the one quoted? What's the case history? What's the status of the defendant--how long has his case been pending?

The letter is great, and because it was written by a judge, it would seem to have some credibility behind it. I suspect he/she had more than one intern/assistant/whomever, go to town on the research for it, and it seems likely that the judge would have done their own homework on the matter as well.

The lawyerly answer: it depends.

I read the statute. It contains not even the slightest hint that the director can compel private attorneys to provide this service. I can't imagine why someone would assume it did. When it doesn't.

The statute authorizes the director to hire private attorneys. It authorizes the director to delegate cases to private attorneys.

http://www.moga.mo.gov/mostatutes/stathtml/60000000421.HTML

The thing about reading a statute and trying to glean how it operates is that you're getting one piece of a puzzle. A statute is what's called "secondary law." Primary law is judicial interpretation of the statute given all the facts and taking counter arguments into consideration--and precedent. What have other, higher courts said about the same statute when applied to similar facts?

You just don't know.

Oftentimes a set of facts will present itself so that the statute can indeed be read according to its plain language. But in a situation such as this, it's a good bet that another element that's going to come into play is legislative intent. I'm sure as hell not going to look into the notes of the committee meetings to see if the lawmakers discussed the possibility of this particular situation arising.

There are also conflict rules that may come into play. In short you have:

1. The statute
2. Precedent (higher courts; e.g. has SCOTUS ever ruled on something like this with an on-point fact pattern)
3. Legislative intent
4. Opposing arguments as to everything the judge ordered
5. Potential attorney-his other job conflict rules
6. Public policy considerations

It's a big stew and the statute is but one ingredient.