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
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.