The Great Lawyers' Strike of '10

 Posted on October 25,2010 in Uncategorized

I finally got around to looking at the anonymous Lawyers on Strike blog, which Scott Greenfield, Jeff Gamso, and Mike at Crime & Federalism wrote about last week.

The anonymous blogger's bright idea: "I will use this blog to call for a ‘strike': that is, to call upon all attorneys in the geographic area to refuse to appear in front of that judge."

My immediate reaction: "what?"

Let's say I represent a client in the 174th District Court of Harris County, Texas (Ruben Guerrero presiding). The anonymous blogger of Lawyers on Strike calls for a strike against Ruben Guerrero. Let's say that I think such a strike is appropriate because I think Guerrero is unfit to serve as judge (I do), and that I think I can make a difference by striking.

My client still has to go to court in Guerrero's court, and if I don't show up Guerrero has the power to a) order me to appear, b) hold me in contempt if I don't, and c) get me dragged into court in shackles and an orange jumpsuit. So once I have a case in the 174th, even if it were ethical to leave my client hanging, I couldn't, as a practical matter, refuse to appear in front of that judge.

Suppose, instead, that I don't have a case in the 174th when the anonymous blogger calls for a strike, but that someone comes to me needing representation in that court. He can afford to hire me, and he wants to hire me. I could decline representation (fight the power!) and let someone else represent the client; odds are that "someone else" would not do as good a job as I would, and would make things easier for the State and for Guerrero.

Collective action to force the government to improve is the sort of thing that appeals to the most conscientious members of the criminal defense bar. Unfortunately, the most conscientious members of the criminal defense bar are those lawyers whom you don't want sitting out when people's freedom is on the line. Fortunately, the most conscientious members of the criminal defense bar will never subscribe to any collective action that doesn't put the client first (and collective action, by definition, doesn't put the client first).

All in all, this sounds like an idea cooked up by someone who hasn't represented human beings in court and who has no leadership experience (if you call anonymously for public action, nobody will follow you; if you aren't willing to put your name on the idea, why would anyone else put theirs?).

Suppose, though, that the anonymous blogger convinces all 2,000 lawyers practicing in the criminal courts of Harris County to refuse to appear before Ruben Guerrero, and that Guerrero doesn't figure out that he has the power to order them to appear. Guerrero gets a day off. Does he get removed from the bench? Not necessarily. His is an elected position. Do the voters unelect him because the criminal defense bar agrees that he's incompetent? Don't bet on it.

The anonymous blogger is calling, more specifically, for a November 17, 2010 strike against Sharon Keller of the Court of Criminal Appeals.

Keller is on the Court of Criminal Appeals. The Court of Criminal Appeals holds oral arguments on select Wednesdays. Assuming that November 17, 2010 is one of those Wednesdays, how many criminal-defense lawyers will be appearing before Keller on that day?

Maybe four, which is about the most oral arguments the Court of Criminal Appeals schedules on a given day.

Unless I missed something, what the anonymous blogger means by a strike is "all attorneys in the area refusing to appear before that judge." So the anonymous blogger is calling publicly for four lawyers to waive oral argument in the Court of Criminal Appeals, Texas's highest criminal court, a court of discretionary review.

What are the chances that that'll happen? I'll give you three guesses, and a clue: zero.

I can't imagine anyone convincing a competent appellate lawyer to let the State have the Court of Criminal Appeals to itself, but here's an idea for the anonymous blogger: call the lawyers yourself, and give it a shot. Submission schedules are available online, so if there are arguments scheduled on November 17, 2010 you can find the lawyers and use your persuasive powers to convince them to sit this one out.

I don't think it's going to happen, and if you can't persuade them in person, you'll never be able to persuade them anonymously.

But if it makes you feel any better, anonymous blogger dude, I, for one, won't be appearing before Sharon Keller on November 17, 2010.

I'm with you on this one.