To the growing list of problems with the death penalty, add this one from Jonathan Adler at the Volokh Conspiracy: It puts attorneys in a position of arguably having to commit malpractice in the best interests of their client.

Ineffective assistance of counsel is a common habeas petition claim, particularly in capital cases. This has led me to wonder whether legal representation that is constitutionally deficient should presumptively constitute legal malpractice. After all, for a capital defendant, effective assistance of counsel can be a matter of life and death. Yet it is rare that defense attorneys are sanctioned for providing inadequate assistance to capital defendants.

One reason for the lack of sanctions may be that the threat of sanctions could discourage attorneys from representing capital defendants, making it more difficult for them to get proficient counsel. On the other hand, I have also heard it claimed that the low likelihood of sanctions gives defense attorneys an incentive to “tank” bad cases, such as by providing sub-par performance at the penalty phase after losing at the guilt phase, so as to plant grounds for appeal. Such conduct would be worthy of sanction for sure, but I don’t know how often it occurs, if at all. But what of shoddy or negligent legal work? Should that be sanctionable too?

But in the end, even sanctioning lawyers who “tank” the penalty phase of a trial might not be enough. As Adler notes, the stakes for the client are life and death. What’s the significance of a $10,000 monetary sanction (see comments at Volokh for a comment from PatHMV proposing this) when the payoff is the preservation of the client’s life? Even for lawyers incapable of bearing the cost of that sanction themselves, there is certainly a plenty of wealthy donors on the anti-death penalty side that would contribute to that cause.

Also, a lawyer has an ethical obligation to make objections in order to “preserve for appeal” items which might form the basis for overturning the verdict if it goes against his client. Failing to preserve issues for appeal is malpractice. And since his own malpractice is a potent issue for appeal in a death penalty case, might it not be his ethical obligation to “preserve” it by ensuring some critical defect in his own performance, even if doing so means paying a fine?

It seems to me that the extreme nature of the death penalty and the lawyer’s imperative to put his client’s interests first doing anything within the bounds of factual truth and law (narrowly construed) creates a situation where failing to commit malpractice may itself be malpractice. Monetary sanctions against the lawyer are likely to be inadequate. And punishing the client for the defects of his attorney (willful or otherwise) is unjust. It’s a nice little legal Catch-22.

And the death penalty circus show grows another exhibit…