By Lazar Emanuel [Originally published in NYPRR June 2004]
Court Applies Baldi to Appellate Counsel
In People v. Stultz [NYLJ, 5/5/2004, p. 19], the Court of Appeals applied to appellate counsel for the first time the same standards of lawyer effectiveness as have applied to trial counsel since the Court’s decision in People v. Baldi [54 NY2d 137 (1981)]. The Court held that the constitutional requirements of effective assistance of counsel are met when appellate counsel provides “meaningful representation.”
At the same time, the Court restated its rejection of the federal standard for measuring counsel’s effectiveness announced by the Supreme Court in Strickland v. Washington [466 U.S. 668 (1984)]. The federal standard requires the defendant to show not only that counsel did not render reasonable competence assistance, but also “that there is a reasonable probability that, but for the counsel’s inadequacy, the outcome of the trial would have been different.”
Writing for the Court of Appeals, Judge Rosenblatt said:
“…under our Baldi jurisprudence, a defendant need not fully satisfy the prejudice test of Strickland. We continue to regard a defendant’s showing of prejudice as a significant but not dispositive element in assessing meaningful representation. Our focus is on the fairness of the proceedings as a whole.
Until Stultz, the Court of Appeals had been unable procedurally to consider an appeal dealing with the issue of effective assistance by appellate counsel. This procedural inhibition was cured by the state legislature in 2002. In applying the Baldi “meaningful representation” rule, the Court said:
…it is inapt to have one standard for trial and another for appeals. We are confident that the appellate courts will be able to apply the Baldi standard appropriately when dealing with allegations of appellate counsel’s ineffectiveness. Appellate courts are uniquely suited to evaluate what is meaningful in their own arena.
Stultz turned on the refusal of a defense witness to testify in reliance on the privilege against self-incrimination. The witness had previously submitted a sworn statement identifying another person as the murderer. When the trial court concluded that the witness could not be compelled to testify, trial counsel did not try to get the witness’ sworn statement admitted into evidence. The defendant was convicted.
On appeal, appellate counsel failed to argue that trial counsel was ineffective in not having tried to get the witness’ statement into evidence. The defendant argued that this failure by appellate counsel constituted ineffective representation in the appeal. The Court rejected this argument, essentially because the witness’ statements were unreliable.
The court said, “A defendant is not denied effective assistance of trial counsel merely because counsel does not make a motion or argument that has little or no chance of success.”
ABA Rule Would Require Malpractice Insurance Notice
Over the years, the ABA Committee on Client Protection has tried in various ways to encourage lawyers to disclose to their clients whether or not they had malpractice insurance. In December 2003, the Committee proposed to tie disclosure of coverage to the lawyer’s annual or biennial registration statement. Under that proposal, lawyers would state whether they maintained malpractice insurance of at least $100,000/$300,000. They would also advise whether there were any unsatisfied malpractice judgments against them.
In response to widespread opposition by the bar to its 2003 proposals, the ABA Committee has now proposed a new Model Court Rule which would not require either disclosure of any specific coverage amount or notice of an unsatisfied malpractice judgment. The new Rule, would however, be tied to the lawyer’s registration statement.
The Rule would require lawyers in private practice to state only whether or not they are covered by malpractice insurance. The coverage amount need not be disclosed. Lawyers who report being covered by insurance must advise the courts within 30 days if the insurance policy lapses, is no longer in effect or terminates for any reason. Any information submitted under the Rule will be made available to the public “by such means as may be designated by [the highest court of the jurisdiction].” Any lawyer who failed to comply with the Rule would be subject to suspension.
Lawyers who are engaged in the practice of law as fulltime government lawyers or as fulltime counsel to an organization would be exempt from the rule.
New York has no rule requiring malpractice insurance coverage nor any rule dealing with disclosure of coverage or the lack it. Only Oregon requires its lawyers to maintain malpractice insurance. Several states require disclosure of coverage in the registration statement and a few require lawyers to tell their clients directly whether or not they have coverage.
Lazar Emanuel is the publisher of NYPRR.
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