Some Provocative Pro Bono Questions About the Mailroom-Mix-up-Pending-Execution Case

Jason Mazzone at Balkinization thinks that the case argued before the U.S. Supreme Court last week in which a death row inmate appeals for post-conviction relief because his two pro bono lawyers did not file a timely notice of appeal from denial is not jurisprudentially significant, but that it sheds light on some disturbing pro bono issues. The case is Maples v. Allen.  The reason the notice wasn't filed on time was because the Maple's lawyers had left the blue-stocking firm for which they were working before the denial was issued and the letter of denial got buried in the firm mailroom.  The inmate lost at both the state, federal district, and federal appeals court levels, but the U.S. Supreme Court granted cert and Mazzone thinks the Justices will find a way to "squeeze 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)."

But Mazzone is interested in the case for another reason -- what it says about pro bono work cases in bluestocking firms.

He describes the pains that the law firm (Sullivan & Cromwell) took to separate the firm from the pro bono work, at the same time that it was publicly celebrating the firm's "tradition of public service and of the quality and quantity of S&C’s diverse pro bono practice, as well as the fact that it "consistently ranks among the leaders of large firms in participation in pro bono and other public service activities."   Mazzone speculates that Maples' lawyers "very likely" worked on Maples’s case in the office and not at home, used firm resources (the Westlaw account, secretarial support and so on), and were likely able to count the hours they worked on the case toward whatever hourly expectations the firm had of its attorneys.  Despite the firm's policy that their lawyers worked on the cases as individuals, not as firm lawyers, Mazzone reaches a different conclusion.  And posits three basic questions:

• 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).
• whether big firms should receive the public credit they do for pro bono work conducted by attorneys acting in an individual capacity.
• is the quality of lawyering for pro bono clients, death penalty clients, compromised by the firm's distancing  policy that the cases are not cases of the firm but of individual lawyers?

He highlights the last question as especially important.  Maples' lawyers were both second year associates.  One was a recent U of M law grad, the other trained in France and had an LL.M from Harvard. In taking Maples' case they assumed responsibility, Mazzone says, "for navigating the complexities of Alabama law and the minefield of federal law governing habeas review of state court judgments."  Mazzone's conclusion:

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.