I enjoy helping those who need help, wherever they may be.
One of the ways I help those in need is doing advisory counsel work.
But it’s not always a smooth sail.
There are often mental health issues to contend with and our system is still working out how to handle them. The area of law that deals with a client’s competency to waive counsel is evolving, and many attorneys, DAs, and judges are not aware of the Supreme Court decision Indiana v. Edwards (2008), which discusses the difference between competency to stand trial and competency to waive counsel. If those involved are not up to date on this aspect of the law, then it won’t even come up in court, and a client clearly incompetent to waive counsel may be allowed to do so. The law is only as useful as it is used, and this is part of why we are behind the curve in dealing with mental health – because the people involved have to be aware of the changes in the law in order to act accordingly.
By the time an individual is with me as advisory counsel, I may not have the ability to flag this issue for the court.
Once I’ve been appointed, I have to be very clear with my boundaries of the representation relationship. I make it clear that I am there to help, to answer questions, and it is the individual’s responsibility to ask the questions. I am not requesting investigations or filing motions, but providing advice and counsel about those things. If advisory counsel is tempted to do these things for the pro se defendant, it can really put the individual at a disadvantage, as it is the pro se defendant who must conduct the court proceedings, not advisory counsel.
Even so, pro se defendants will sometimes get right up to the morning of a trial and then decide they don’t want to represent themselves. They or even the Court may ask me to the defense attorney as I’ve been working with the individual and their case, but this isn’t a fair ask – I’m not prepared for a trial. How an attorney prepares for trial is different than how a pro se defendant prepares for trial. If they want to change it up, but don’t want a continuance, I can’t commit to representing them. In this case, frustration often wins the day and they move forward with the trial on their own. This is not often pretty and I feel for them. I understand their desire to get on with their lives, but this impatience rarely yields a good result in court.
Clients may be so mentally ill that they think they don’t need help, or so distrusting of the system and of counsel that they don’t want any kind of representation. But they’re still in the system, and they still have to deal with the consequences. Since I have expertise and a desire to help, when the court calls to appoint me to one of these cases, I try and say yes.
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