In this article I set out what I believe is an extreme and unconventional way to discipline egregiously bad lawyers. For starters, I think it might be useful to survey briefly the kinds of lawyering conduct currently subject to disciplinary sanctions. Regulation of the conduct of defense lawyers in the U.S. is hedged by various legal and professional rules that are enforced by courts and disciplinary bodies essentially to ensure a minimum level of competent and ethical representation. The Sixth Amendment right to counsel--the so-called “sacred” right--seeks to ensure at least a reasonable degree of lawyering skill. Also, professional codes seek to ensure zealous and meaningful representation. Nevertheless, these standards are very broad, and bad lawyering often escapes sanctions or even notice.
Ironically, although bad defense lawyering, in my opinion, happens at least as often as bad prosecuting, the latter appears to have elicited more criticism by the media and the academic community. Why this disparate treatment of prosecutors and defense lawyers? It is a curious dichotomy, especially since bad lawyering by defense attorneys, as documented in many studies, accounts for at least as many miscarriages of justice as misconduct by prosecutors. To be sure, just as most prosecutors behave fairly and professionally, so do most defense lawyers represent their clients with skill and dedication. But, just as some prosecutors behave dishonorably, some defense lawyers behave incompetently. However, bad prosecutors are excoriated; bad defense lawyers are marginalized or ignored.
Thus was born the idea--borrowed loosely from Kafka--of a “Penal Colony” as a disruptive innovation to improve the quality of American lawyers and punish the bad ones.
Bennett L. Gershman, A Penal Colony for Bad Lawyers, 69 Mercer L. Rev. 743 (2018), https://digitalcommons.pace.edu/lawfaculty/1097/.