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Tuesday, February 19, 2013

Holistic Practice and Legal Discretion

Two features of problem-solving courts are at the cutting edge of both legal practice and legal theory.  One is their emphasis on holistic legal practice.  I’ve argued in a recent post that holism is the central feature of low-level legal practice—and it’s certainly something that can set our students apart from writ-writers, online forms, and all the other pressures from the bottom that are squeezing a practice of law that consists solely in drafting skills.  I’ll not belabor that point here.  But holism also features in the nature of judicial discretion and problem-solving courts address holism in a particularly intriguing way: by setting up a treatment team to advise the judge, and potentially—and I will argue, ideally—to constrain her discretion. 

The idea that the judge would defer to the other members of the treatment team—those with more expertise of the social welfare or medical aspects of the offenders case—is both obvious and controversial.  It may even be deeply worrying.  It’s obvious because the judge, to the extent she lacks relevant expertise, should rely on the experts.  It’s controversial because the judge is the authority in the courtroom, and the offenders interests are usually represented through counsel rather than through social workers or health officials.  And it’s potentially worrying if judicial authority ranks lower than “treatment authority” in ex-parte meetings in which defense counsel sometimes does not appear.

Problem-solving courts are at pains to allay the controversies and worries by asserting the primacy of the judge at the head of the treatment team.  She is the decision-maker, with ultimate authority, and exercises her decision-making authority independently of the team members: there is, in problem-solving court doctrine and ethics, no participatory adjudicator.  (Thanks to Caroline Cooper at American for clarifying these points in an email). 

But my question is: shouldn’t this holistic treatment team constrain judicial discretion?  Isn’t the alternative judicial domination of the process, with the risk that the judges colonize social work and health care discretion.  And this presents a problem for holistic practice in the criminal law more generally: what ought to be the professional posture between lawyer and other professionals (social worker, psychiatric expert, and so on).  These issues arise in other areas of legal practice as well, with different experts and different relations.  Negotiating our way through these thorny ethical and doctrinal issues is a central part of modern (and perhaps especially low-level) legal practice.  Problem-solving courts are at the cutting edge of resolving and responding to these issues. 

Problem-solving courts represent in miniature a problem that confronts legal professionals on a regular basis.  As Greg Berman, director of the Center for Court Innovation has argued. problem-solving courts deal with a plurality of justice issues, and must balance their therapeutic orientation towards the offender with the interests of the community and the victim, as well as professional standards and norms of members of the treatment team.

At their best, problem-solving courts, understood as promoting the well-being of both the offender and the community, operate through an holistic “model of representation [that] is client-focused, interdisciplinary, and community-based.”   Since the holistic model locates itself “as part of the larger community,”  rather than as simply the zealous advocate for the client (whom Robin Steinberg and David Feige of the Bronx Defenders disparage as “the canny trial attorney”),  the model is not merely interdisciplinary in the sense of being well-informed about other relevant practice-areas: it is directed towards partnerships among professionals, clients, and communities. 

But holistic or multi-disciplinary partnerships operate through (as University of New Mexico Law Prof, J. Michael Norwood and Strathclyde University Law Prof. Alan Paterson helpfully note):

four … relationships …: 1) the relationships among professionals, 2) the relationships between clients and lawyers, 3) the relationships between clients and the other professionals, and 4) the professional teams relationship with broader communities. The most important of these are the relationships among all the legal and nonlegal professionals.”

Problem-solving courts bring these relationships under the ultimate authority of the judge, in a criminal court.  Here, holism presents a novel form of the traditional net-widening worry, one that occurs on the institutional level.  That worry is that the court’s power overflows its traditional focus on the trial and colonizes areas those areas—social services, health care—that traditionally compete with the law as sites for intervening with offenders.  One way of expressing the colonizing effect of institutional net-widening is that, rather than internalizing the values of other therapeutic agents in the courtroom, what judges export what they do elsewhere in the courthouse into the “therapeutic” sphere.  And that is perhaps particularly a concern to the extent that the court employs a style and measure of treatment that emphasizes risk management and disciplining offenders through stringent forms of behavior modification. 

In prior posts, drawing on the work of McNeill and Tata, I’ve identified some aspects of the interaction between social workers and judges that—at least in the Scottish context—ought to give us some cause for concern.  Their work suggested that, unbeknownst to the judge, the social worker or treatment professional advocates for their professional self-image or for their client in ways that attempt to “speak the language of the judge” and shape the judge’s decision.  And the judge may use the individualizing aspects of the social workers report for their own, law-related purposes.  This is the middle ground of understanding and misunderstanding that McNeill and Tata identified under the rubric of risk and responsibilization, but might as well apply to treatment too. 

Here, the holistic institutional net-widening worry is that, in speaking the language the judge wants to hear, a poorly structured holistic practice serves not to limit, but to increase the reach of the criminal justice system.  In that case, while we might worry about the penological consequences of such an arrangement, there is no additional worry about misapprehending the purposes of that arrangement. 

As the Norwood and Paterson comment makes clear, however, what matters is how these relationships are structured.  Properly structured, the judge’s discretion could, and perhaps ought to be, limited by the professional expertise of other treatment providers.  That is, if one worry about problem-solving courts pressed by critics is that judges have too much discretion, and risk engaging in arbitrary decision-making, one way to push back is to argue that their discretion is limited by the input of the other professionals.  The fine line is that these professionals, while serving to counsel the judge, cannot participate in some collaborative decision-making process: the ultimate authority is the judge’s alone.

Things sometime appear—to outsiders at least—as if the judge’s authority is dividedBut what is a tricky matter of self-discipline, courtroom management, professional ethics and constitutional doctrine for the judge may be a come out differently for the attorney.  Perhaps, as part of an holistic practice, attorney legal competence and discretion ought to be limited by, and deferential to, that of experts.  Perhaps sometimes a lawyer ought to give up their authority as a legal expert, and engage other professionals’ expertise in serving the needs of the client.  Of course, that requires lawyers who are not only expert in the law, but also sophisticated interdisciplinary actors, able to recognize professional boundaries and solicit expert advice.  But, at least for certain attorneys at some locations of the legal system, this is not the wave of the future, but the wave of the now.

[I know there is a massive literature on holistic practice out there, including the ethics of judging in problem-solving court.  I realize I have not fully engaged with it in this post, but I hope to continue do so in a future post.  But if folks want to get started on discussing that literature in the comments section, I encourage you to do so.]

Posted by Eric Miller on February 19, 2013 at 12:49 PM | Permalink


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