an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Pro Bono and Big Law Firms (or Who Exactly Was Cory Maples’s Lawyer?)
The Supreme Court has granted review in Maples v. Allen, a habeas case. Cory Maples was convicted of murder and sentenced to death in Alabama. The conviction and sentence were affirmed on appeal. Maples thereafter filed a state petition for post-conviction relief arguing that his trial lawyer was constitutionally defective. The state court hearing that petition denied it. Maples did not file a timely notice of appeal from that denial and only found out about the decision after the time to appeal had passed. According to the record in the case, the court clerk had mailed of a copy of the order denying the petition to Maples’s attorneys at the law firm where, according to the docket information, they were employed. Those lawyers, however, had since left the firm (without updating their contact information with the court) and so the mail room receiving the court’s mailing sent it back to the court. The court clerk made no additional effort to locate Maples’s attorneys. The clock ticked. Maples’s time to appeal ran out. After Maples eventually became aware of the denial of his original petition, he unsuccessfully petitioned the state appellate court to allow an untimely appeal. He thereafter filed a federal habeas petition, asserting his ineffective assistance of trial counsel claim. The federal district court denied the habeas petition on the ground that the claim was procedurally defaulted and there was no good cause that would excuse the default. The 11th Circuit affirmed the district court.
The case has attracted significant attention because the lawyers representing Maples in the post-conviction proceeding, Clara Ingen-Housz and Jaasi Munanka, were from the New York office of Sullivan & Cromwell (S&C); it was the S&C mail room that returned the trial court’s order to the court after Ingen-Housz and Munanka had left S&C. Numerous commentators have asked how it is that S&C dropped the ball, with the result that Maples now faces execution without any federal review of his ineffective assistance of counsel claim.
I see some different issues. First things first: the case isn't important for the legal questions it raises and it isn't going to generate any new law. Maples is represented at the Supreme Court by former Solicitor General, Gregory Garre. Maples asks the Supreme Court for a ruling that the state timing rule is not consistently applied and therefore is not adequate to procedurally bar his habeas petition. In light of the Court’s recent decision in Beard v. Kindler, it is very unlikely that the Court will grant Maples relief on that basis. Instead, I predict a “sympathy” per curiam, in which the Court will squeezes Maples’s plight into Holland v. Florida and hold that equitable tolling is appropriate in his case. Maples will end up with federal review of his ineffective assistance of counsel claim (which, like most such claims, will likely fail on the merits).
The more interesting aspect of the case is what it tells us about pro bono work at big law firms.
Although Ingen-Housz and Munanka were attorneys at S&C at the time they took on Maples’s case, Maples was apparently not represented by S&C itself. Among the materials in the record (petition for cert., p. 257a) is an affidavit from an S&C partner, Marc De Leeuw, who explains:
Lawyers at S&C handle pro bono cases on an individual basis. Accordingly, the lawyers who first appeared in this case, and all lawyers who have participated thereafter, have done so on an individual basis, and have attempted not to use the firm name on correspondence or court papers.
In the state court filings, therefore, Maples’s attorneys of record were Ingen-Housz and Munanka (not Ingen-Housz and Munanka of S&C).
It isn’t hard to think of reasons a big law firm would, as a legal matter, have pro bono clients represented by individual attorneys rather than the firm at large. Individual representation limits the firm’s exposure to liability; the firm need not hold onto the case if (as here) the lawyers leave the firm; the firm need not commit its vast resources to the case; and if the case comes out badly the firm can deny responsibility. Indeed, if Ingen-Housz and Munaka were Maples’s attorneys in an individual capacity, it becomes hard to fault the S&C mailroom or S&C itself. After all, nobody at S&C would have a responsibility (or perhaps even authority) to open and hand over to another attorney within the firm a court document sent to an individual attorney in care of S&C concerning a client S&C never represented.
In practice, however, the wall between individual attorneys and the firm where they are ordinarily employed is obviously far less solid. As is true of most pro bono work in big firms, it is very likely that Ingen-Housz and Munanka worked on Maples’s case in the office and not at home. They likely used firm resources (the Westlaw account, secretarial support and so on). And they were likely able to count the hours they worked on the case towards whatever hourly expectations the firm has of its attorneys.
Moreover, S&C (like other big firms) certainly gives a public impression that the firm itself is handling the pro bono cases. S&C’s website says, for example:
S&C consistently ranks among the leaders of large firms in participation in pro bono and other public service activities. . . . We are proud of our tradition of public service and of the quality and quantity of S&C’s diverse pro bono practice.
Our lawyers . . . represent pro bono clients around the country in various habeas corpus matters, in post-conviction death row proceedings and in federal narcotics prosecutions.
Sullivan & Cromwell’s public service activities are coordinated by Marcia Levy, Special Counsel for Pro Bono Initiatives, along with the Firm’s five-partner Public Service Committee. S&C recently created the position of Special Counsel for Pro Bono Initiatives to enhance the Firm’s deep commitment to pro bono work and broaden the opportunities and types of pro bono matters available. In addition, the Firm has designated a day-to-day coordinator of pro bono activities.
The coordinators seek out challenging and rewarding public service opportunities. The Firm creates numerous opportunities for all lawyers, summer associates and legal assistants to participate in public service activities.
Public service matters are generally undertaken in one of two ways: as a result of a referral from a community organization or at the initiative of the Firm or individual lawyers. S&C encourages lawyers to learn about and sign up for pro bono matters through Pro Bono Net (www.probono.net). In whichever way a matter is initiated, a proposed new matter goes through the Firm’s standard new matter opening procedures. These procedures include conflict clearance as well as approval by the Managing Partners Committee.
All of this suggests to me that pro bono clients are S&C clients.
More significantly, Maples might well have believed--and might still believe--he was represented by S&C. His petition for certiorari indicates that after Maples learned of the missed deadline, his mother called S&C, which arranged for new lawyers from the firm to take over the case. The Eleventh Circuit’s opinion refers repeatedly to S&C as representing Maples. And the Wall Street Journal says that S&C hired Gregory Garre to handle the case at the Supreme Court.
This case raises in my mind three basic questions about big law representation of pro bono clients. One is whether the clients know they are represented only by individual attorneys (and therefore cannot count on the firm as a whole for resources and support). A second question is whether big firms should receive the public credit they do for pro bono work conducted by attorneys acting in an individual capacity.
The third question might be the most important. If lawyers at big firms are handling pro bono case in an individual (and not firm) capacity, we might well ask about the quality of lawyering the pro bono clients, especially in death penalty cases, are given.
Clara Ingen-Housz and Jaasi Munanka began representing Cory Maples in September 2000. Ingen-Housz was trained as a lawyer in France and she received an L.LM from Harvard in 1999. Munanka graduated from the University of Michigan Law School, also in 1999. Neither of the two did a clerkship before starting at S&C. In other words, Maples’s life was in the hands of two lawyers, one educated in France, both just entering their second year as S&C associates in New York City. And those two sophomore lawyers were responsible for navigating the complexities of Alabama law and the minefield of federal law governing habeas review of state court judgments.
There is no question that a firm like S&C can handle the complexities and risks of death penalty litigation. But leaving the task to two beginners, if that’s what big firms are doing, is surely a bigger sin than any a mail room employee might commit. Posted
by Jason Mazzone [link]