Monday, March 28, 2016

Brooks v. Yates (9th Cir. - March 28, 2016)

I tend to side with Judge Kozinski on this one.

Not that anyone's expressly disputing what he says.  The opinion is per curiam.  The opinion says that the petitioner gets habeas relief.  The opinion says that the petitioner had been essentially abandoned by his attorney, and names that attorney.

But Judge Kozinski doesn't think that's necessarily enough.

Judge Kozinski has gotten some flack from others in the Ninth Circuit recently for allegedly acting like a "roving commissioner" looking to identify and root out misconduct by lawyers.  And this is yet another case in which there's alleged misconduct that leads to an appeal.

So Judge Kozinski feels like defending his practice.  And this is a perfect example, in his view, of when -- and why -- spelling things out in detail appropriate.

Here's what Judge Kozinski says:

"I join and applaud the majority’s sound disposition. I write separately in fulfillment of our venerable obligation “to the public [to issue] a civil reprehension of advocates, where there appeareth cunning counsel [or] gross neglect.” Francis Bacon, Essays, Civil and Moral in 3 Harvard Classics 7, 139 (Charles W. Eliot ed., 1909). As the principal opinion demonstrates, Brooks’s federal habeas counsel, Gregory H. Mitts, satisfied both of these categories by ignoring Brooks’s communications, missing deadlines and then concealing his dereliction. In doing so, he jeopardized his client’s chance to obtain federal habeas relief. Maj. at 6. Yet Mitts continues to practice law in California with no mark on his record that would apprise prospective clients of the grave risks of hiring him to represent them. . . .

The facts are even worse than one would gather from reading the majority opinion. After Mitts was retained in March 2010, Brooks apparently sent a letter (not in the record) suggesting how the case might be handled. In October, Mitts sent an imperious response admonishing Brooks not to “micromanage” the case from prison. The letter also mentioned offhand that the California Supreme Court had denied Brooks’s pending post-conviction relief petition, but didn’t say when. Nevertheless, Mitts assured Brooks that he was “aware of the time constraints attendant to” filing his federal habeas petition.

That turned out to be untrue. Brooks’s federal habeas deadline expired just days after Mitts wrote to Brooks, but Mitts sat on his thumbs. Over the next year, Mitts systematically ignored a stream of letters that Brooks sent inquiring about the status of his case. In May 2011, Brooks wrote to Mitts pointing out his “lack of regular communication” and asking Mitts to call him at the prison. Brooks wrote again the following month, explaining that Mitts’s silence was “extremely frustrating.” Having heard nothing, Brooks wrote yet again in July. To facilitate a response, Brooks enclosed questions to which Mitts could provide “yes/no” answers and brief explanations. Brooks begged Mitts to “PLEASE ANSWER THESE QUESTIONS AND MAIL THEM . . . WITHIN 2 WEEKS.” Brooks continued to send letters to Mitts approximately once a month over the next four months. In August, he reminded Mitts of his responsibility to “be in contact and communicate with [your] client” and mentioned that he had been waiting “almost a year” for responses to his “11 previous letters.” In October, Brooks sent Mitts an “urgent” letter imploring him to communicate, even if it meant referring him to a paralegal.

In August 2011, ten months after the deadline expired, Mitts finally deigned to file a federal habeas petition, apparently without notifying Brooks. When the district court issued an order to show cause as to why the petition shouldn’t be dismissed as untimely, Mitts didn’t file a response or notify Brooks of the order. Mitts later explained that he did not respond to the show-cause order because he couldn’t contest the court’s untimeliness finding. When the magistrate judge recommended that the petition be dismissed, Mitts didn’t object. The district court thus entered final judgment on a habeas petition that Brooks didn’t even know had been filed on his behalf. Mitts has never explained why he missed the filing deadline by almost a year, or why he did not notify his client immediately of the default and subsequent court orders. . . .

A lawyer who comports himself as Mitts did is not only a hazard to clients, but also a menace to the profession and to the courts. Mitts’s actions consumed countless hours of this court’s and the district court’s time in dealing with his obstinate incompetence. If Mitts was so lackadaisical in Brooks’s case, we can only imagine what problems he’s caused, or is likely to cause, other clients. Potential clients, who will put their lives in Mitts’s hands, as Brooks did, are entitled to know that this lawyer ignores client inquiries, misses jurisdictional deadlines and does not own up to his mistakes."

I think that's a pretty persuasive argument.  Sure, there's a power differential when a member of the judiciary calls out an attorney in a published opinion.  Particularly since the ability of the attorney to draw a similar audience for any refutation of what the judge says is generally pretty low.

But when you're confident that an attorney has a serious problem, Judge Kozinski seems right that the protection of the public may justify calling him out.  If only so others, in the Google era, can perhaps learn of the attorney's prior conduct before they elect to put their lives in his hands.

Judge Kozinski ends his concurrence by saying:  "I am unaware of any disciplinary action currently underway to address what appears to have been misconduct by Mitts. The State Bar of California may not yet be aware of Mitts’s behavior. Perhaps now it will be."  No need for the "Perhaps".  I'm extremely confident the opinion will make the Bar aware this problem.