April 2012 Vol. 110 No. 6 THE REVIEW

Agency and Equity: Why Do We Blame Clients for Their Lawyers' Mistakes?

Adam Liptak

If you were to ask a child whether it would be fair to execute a prisoner because his lawyer had made a mistake, the answer would be no. You might even get a look suggesting that you had asked a pretty stupid question. But judges treat the issue as a hard one, relying on a theory as casually accepted in criminal justice as it is offensive to principles of moral philosophy.

This theory holds that the lawyer is the client's agent. What the agent does binds the principal. But clients and lawyers fit the agency model imperfectly. Agency law is built on the concepts of free choice, consent, and loyalty, and it is not unusual to find lawyer-client relationships in which some or all of these elements are missing.

Let us put to one side the ideal case: a sophisticated client with money. That client presumably chooses a good lawyer, monitors and controls the lawyer's work, and fires her if she turns out to be disloyal or incompetent. The lawyer in that case really is the instrument of her client's will, and so the client may fairly be tagged with the lawyer's errors.

Now consider a client who is poor, uneducated, mentally troubled, scared, or imprisoned-or perhaps all of these things at once. And then add to this mix a lawyer who is not retained but a volunteer or assigned by the state. Does it still make sense to consider such a lawyer an authentic agent of the client?

The splendid reviews collected here are all concerned with aspects of what justice means, and they generally take for granted that courts can sort things out. But that presupposes competent advocacy that actually advances the interests of those involved. For instance, both Habeas for the Twenty-First Century — a valuable book by Nancy J. King and Joseph L. Hoffman — and Eve Brensike Primus's sometimes skeptical review of it share the common ground that, as Professor Brensike Primus puts it, "there is a crisis of counsel" for indigent criminal defendants.

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