You Might Be a Dump Truck, if…

You Might Be a Dump Truck, if…

 

You might be a dump truck if… the back of your business card is a mini version of a Tahl Form.

You might be a dump truck if… you’ve pled hundreds of clients and didn’t know it was called a Tahl Form.

You might be a dump truck if… “Plead as charged” …sounds just fine to you.

You might be a dump truck if… “Plead as charged” …sounds just fine to you and you haven’t even reviewed the police report yet.

You might be a dump truck if… you know all the court fines better than the evidence code.

 

In setting out to write this article and using the tag line I was very surprised that several attorneys I spoke to had not heard the term “dump truck attorney.”  Which had me thinking “You might be a dump truck attorney if… you don’t know what a dump truck attorney is,” but I digress.

The courts have recognized the phrase “dump truck attorney” in several decisions and observed that while it’s not clear of the original source of the term it likely came from a reference to an overworked public defender who was being accused of trying to dump a defendant by having him plead guilty rather than afford him a vigorous defense.  While there may be some instances of truth to that suggestion the court’s further observation is something we witness everyday when retained defense attorneys who have done little to no investigation into the merits of any defense line up anxiously to enter a plea on behalf of their client. The Court observed, “It is an odd phenomenon familiar to all trial judges… that some criminal defendants have a deep distrust for the public defender. It is almost a truism that a criminal defendant would rather have the most inept private counsel than the most skilled and capable public defender.  Often the judge will appoint a public defender only to watch in silent horror as the defendant’s family, having hocked the family jewels, hire a lawyer for him, sometimes a marginal misfit who is allowed to represent him only because of some ghastly mistake on the part of the Bar Examiners and the ruling of the Supreme Court in Smith v. Superior Court, 68 C2d 547” (Smith is read as limiting the Court’s discretion to interfere with the defendant’s choice of a private attorney) People v. Huffman, 71 CA3d 63 fn2.

Certainly if a court considers that you are a “marginal misfit” only licensed due to a “ghastly mistake,”  “You might be a dump truck.”

Under prevailing law a defendant is entitled to not just “bare” assistance of counsel, but rather “effective” assistance. Strickland v. Washington (1984) 466 US 668, 686. That means a defendant is entitled to “reasonably competent assistance of an attorney acting as his diligent conscientious advocate. People v. Ledesma, (1987) 43 C3d 171, 215. Effective assistance of counsel applies not only to the trial stage of the proceedings but pre-trial stage as well, including plea-bargaining.  Hill v. Lockart, 474 US 52; In re Alvernaz, 2 Cal. 4th 924.

In Missouri v. Frye, 566 US 134 the Supreme Court held counsel’s failure to notify his client of a potential plea bargain offer was ineffective; In Lafler v. Cooper 566 US 156 the Supreme Court held an attorney could be found ineffective in advising his client not to accept a plea bargain and go to trial.   So is that saying sometimes, “You should be a dump truck…?”

The Court in Strickland explained, “the overarching duty is to advocate the defendant’s cause and the more particular duties to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution.”

One has to question how this standard can be met when an attorney pleads a client without discussing the information in the police report with the client, without conducting any independent investigation, and without researching the current law regarding any potential motions. This is clearly going on in courtrooms everyday, right in front of our eyes.  How is it that so many lawyers are able to get away with this type of conduct? 

The reality seems to be that people find their situations hopeless and are uninformed regarding potential defenses or important means of mitigating their circumstances.  As a result they are complacent and undemanding of their attorneys.  Because people are uninformed and ignorant, attorneys will take advantage of their complacency to affirm the hopelessness.  Many dump truck attorneys might not even be aware they are reinforcing the sense of hopelessness. Those attorneys may have failed to educate themselves or have submitted to the pressures and difficulty of rising to the challenge time after time, as is necessary in order to be a diligent and conscientious advocate in criminal defense.  Still other dump truck attorneys may be well aware of the sense of hopelessness and ignorance on the part of their clients and consciously take advantage of that fact to attain a quick plea and unfortunately a quick buck.  Those attorneys have lost sight of what it means to be a criminal defense attorney in this country.  Many likely have never understood the privilege we are afforded by virtue of our license to protect and help our fellow citizens and the principles our country was founded on. It is difficult for most attorneys to understand and probably controversial to state that monetary earnings will never drive zealous representation, but are a bi-product of consistently providing that level of service.

Amongst the types of conduct the courts have considered ineffective assistance of counsel are:

  • Failure to investigate any significant issues/witnesses
  • Failure to consult with or call an expert witness
  • Failure to file timely motions
  • Failure to convey a plea offer
  • Advising against a plea bargain in favor of a more severe plea “plea to the sheet” in order to preserve a non-meritorious issue on appeal
  • Representation despite a conflict with the client
  • Inattention (nodding off during a court proceeding)
  • Failure to make warranted objections to prejudicial evidence
  • General incompetency

It is doubtful many people enter law school with aspirations of becoming a dump truck lawyer, but it happens nonetheless.  We see it everyday.  We are privileged to have the opportunity to affect lives of everyday people now and in the future. We owe it to ourselves, our clients and our profession to be zealous and effective advocates. If it was easy we’d only need a dump truck license.

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