The brief focuses on two ABA documents, which are also provided in appendices:

• The ABA Committee on Ethics and Professional Responsibility’s Formal Opinion 06-441, “Ethical Obligations of Lawyers Who Represent Indigent Criminal Defendants When Excessive Caseloads Interfere With Competent and Diligent Representation,” and
• The ABA Standing Committee on Legal Aid and Indigent Defendants’ “Eight Guidelines of Public Defense Related to Excessive Workloads.”

The ABA discusses how requiring proof of an actual ethical violation and injury to the client before awarding relief from an excessive caseload would effectively require a lawyer to breach the lawyer’s ethical duties to the client.

The ABA also maintains that requiring a showing that individual lawyers are providing inadequate representation would breach the public defense organization’s ethical obligations.

The brief is available online here.

With nearly 400,000 members, the American Bar Association is the world’s largest voluntary professional membership organization. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.

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“The American justice system depends on the essential role of lawyers in counseling their clients,” Robinson said. “This includes providing zealous and effective counsel, even to those accused of heinous crimes against this nation and its people”

Robinson urges the Department of Defense to restore the confidentiality of communications between lawyers and Guantanamo detainees.

The letter is available here.

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A statement from the section regarding these changes is available here.

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In Cooper, the defendant rejected the government’s plea offer based on his lawyer’s incorrect advice on the standard for attempted murder and was convicted at trial. In Frye, the defendant’s lawyer failed to inform him of the government’s misdemeanor plea offer, after which the defendant pleaded guilty to a felony. Both defendants received sentences that were much higher than the plea offers.

Citing standards for competent representation in the ABA Model Rules of Professional Conduct and the ABA Criminal Justice Standards, the ABA argues that subsequent constitutionally sufficient proceedings – such as a fair trial in Cooper’s case or a court’s acceptance of a guilty plea in Frye’s case – do not remedy a violation of a defendant’s constitutional rights at the critical plea stage.

The brief also asserts that when ineffective assistance causes a defendant to lose the benefit of an advantageous plea bargain, the court should have discretion to fashion a remedy that is reasonably calculated to place the defendant insofar as possible in the position he would have been in had his Sixth Amendment rights not been violated.

“The fact that nearly 95% of criminal convictions now result from guilty pleas makes it all the more important that defendants considering a guilty plea should have competent counsel,” the brief states.

The brief is available here.

With nearly 400,000 members, the American Bar Association is the world’s largest voluntary professional membership organization. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.

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“In the face of crisis, some facts become clearer than ever. One such fact is that you cannot —and must not — cut justice any further.

We recognize that the state of California is facing enormous, difficult and momentous budget decisions. But the recent attempt to slash yet another $150 million from the state courts budget is disastrous. One example is the impact the proposed cut would have on the San Francisco Superior Court alone. How is a court supposed to operate after losing nearly half its staff to layoffs?

We know this is unacceptable to you, and to everyone who shares a belief in individual rights, liberty and fairness. The American Bar Association praises your veto of the budget proposal containing these cuts. We urge all California leaders to come together for better solutions and long-term reform.

The ABA strongly supports state adoption of judicial branch budgeting that ensures adequate, stable, long-term funding of the courts in all economic conditions. This issue is so critical that the ABA this year formed a Task Force on Preservation of the Justice System, chaired by David Boies and Theodore B. Olson. The association is prepared to provide any appropriate help in addressing this crisis. And we urge you in the strongest terms possible to not allow any further budgetary attacks on the state’s already besieged system of justice.

Court underfunding results in delays and the elimination of services that shred the fundamental American promise of equal justice under law. Protecting courts protects the people and our constitutional democracy. We are all committed to that.“

The letter is posted here.

President Zack personally takes his case to California in a speech before the Commonwealth Club on July 14. Additional background or interviews available upon request.

With nearly 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world.  As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.

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Proposed amendments now available for comment relate to the following issues:

• The growing number of lawyers and law firms that outsource legal and nonlegal work, both domestically and internationally;
• Lawyers’ growing use of technology, especially technology that stores or transmits confidential information; and
• Foreign lawyers providing legal services in the United States.

Information about the Commission on Ethics 20/20, its mission and its work are available here.

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The ABA recommended many policies designed to increase public safety while reducing the federal deficit: expanding the use of probation and expungement of criminal convictions for low-level offenders; instituting a review process to accelerate supervised release eligibility; making retroactive congressional reforms to crack cocaine sentencing; enhancing elderly nonviolent offender early release programs; expanding time credits for good behavior; and restoring proportionality to drug sentencing.

Zack wrote, “There is a growing recognition that our criminal justice system — like other government systems — must be based on what actually works, meet clear performance measures and withstand fiscal scrutiny of cost-benefit analysis.”

The letter sent to Sens. Kent Conrad, Jeff Sessions, Daniel K. Inouye, Thad Cochran, Patrick J. Leahy and Charles Grassley can be found here. The letter sent to Reps. Paul Ryan, Chris Van Hollen, Harold Rogers, Norm Dicks, Lamar Smith and John Conyers can be found here.

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“Our immigration system is in crisis, overburdened and under-resourced, leading to the frustration of those responsible for its administration and endangering due process for those who appear before it,” said Grisez in her written testimony.

The number of noncitizens removed from the United States has increased more than 450 percent in the past dozen years — from 69,680 removed in fiscal year 1996 to 393,289 removed in fiscal year 2009. In recent years, immigration detainees have represented the fastest growing segment of the U.S. incarcerated population.

Grisez, who is Special Counsel for Public Service at the law firm of Fried, Frank, Harris, Schriver and Jacobson LLP, offered several recommendations from the ABA to alleviate pressure on immigration courts and enhance confidence in the outcome of adjudications:

• Hire additional immigration judges to bring caseloads down to around 700 cases per judge annually (down from approximately 1,145 cases recently) and more law clerks to allow for one per judge (on average there is only one law clerk per four immigration judges).
• Expand noncitizen access to legal counsel, which would avoid procedural snags and excessive appeals that arise when people represent themselves instead of hiring a lawyer.  Legal representation ensures cases are decided on their merits instead of how well an individual can navigate the complicated legal process.
• The ABA urges the Department of Homeland Security to focus on noncitizens that pose a risk to our national security and public safety.  DHS should prioritize cases where noncitizens are likely to be removed, and use prosecutorial discretion when individuals are not likely to be removed.
• Immigration courts should hold pre-hearing conferences to speed subsequent proceedings.  Pre-hearing conferences are also a good opportunity to dispose of cases where an individual would clearly be removed or released.
• Allow asylum officers, rather than courts, to handle claims raised as a defense to expedited removal, and also remove the requirement that asylum seekers file their claim within one year of arrival in the U.S.  Both recommendations would reduce immigration court caseloads.

These and additional recommendations are found in the Commission on Immigration’s comprehensive analysis of the immigration court system, Reforming the Immigration System: Proposals to Promote Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases.

A copy of the testimony is available here.

With nearly 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world.  As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.

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Media Contact: Rob Boisseau (202-662-1093/Robert.Boisseau@americanbar.org)

A copy of the ABA brief is available here.

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The ABA believes that per se enforcement of subpoenas to lawyers for client materials merits review by the court, citing the potential to undermine the free flow of information essential to the attorney-client relationship.  In addition, the ABA requests a uniform rule for the circuit courts, so that lawyers and their clients can expect consistency when subpoena enforcement issues arise.

A copy of the ABA brief is available here.

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