Clara Ingen-Housz (now with another law firm in Hong Kong)
Jaasi J. Munanka (now with another law firm in Denver)
Do some very large corporate law firms objectify their clients in their pro bono cases. Did Sullivan & Cromwell commit legal malpractice that almost killed a client?
The United States Supreme Court found this week that two New York Big Law Firm lawyers (from Sullivan & Cromwell)(above) “abandoned” their Alabama Death Row client when they left the law firm for new jobs without ever telling him, and without securing other counsel for him, leaving him “trapped” and “abandoning him without a word of warning.”
The Sullivan & Cromwell mailroom sent two court orders back to the court, marked return to sender. As a result, the death penalty inmate missed his deadline to appeal from denial of post-conviction relief for inadequate counsel.
Based on Sullivan & Cromwell’s “abandonment,” our Supreme Court reversed all of the lower courts. If it had not, Mr. Maples would have died at the hands of SULLIVAN & CROMWELL’s notion of “pro bono” legal counsel.
Do large American corporate law firms routinely “go through the motions” on pro bono work – enough to attract awards, but not enough to matter in the lives of the people they help?
What is the meaning of pro bono work at large corporate law firms?
How can pro bono law standards be improved so this never happens again?
What do you reckon?
Read this excerpt from the Supreme Court’s 7-2 decision by Justice Ruth Bader Ginsburg, decided earlier this week, in MAPLES v. THOMAS, COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, 565 U.S. ___ (2012)
… Two out-of-state volunteers represented Maples inpostconviction proceedings: Jaasi Munanka and Clara Ingen-Housz, both associates at the New York offices ofthe Sullivan & Cromwell law firm. At the time, Alabama required out-of-state attorneys to associate local counselwhen seeking admission to practice pro hac vice before an Alabama court, regardless of the nature of the proceeding.Rule Governing Admission to the Ala. State Bar VII (2000)(hereinafter Rule VII).3 The Alabama Rule further pre-scribed that the local attorney’s name “appear on all no¬tices, orders, pleadings, and other documents filed in thecause,” and that local counsel “accept joint and several responsibility with the foreign attorney to the client, to opposing parties and counsel, and to the court or adminis¬trative agency in all matters [relating to the case].”Rule VII(C).
allowing the two New York attorneys to appear pro hac vice on behalf of Maples. App. to Pet. for Cert. 255a.Given his lack of “resources, available time [and] experi¬ence,” Butler told the Sullivan & Cromwell lawyers, he could not “deal with substantive issues in the case.” Ibid. The Sullivan & Cromwell attorneys accepted Butler’sconditions. Id., at 257a. This arrangement between out¬of-state and local attorneys, it appears, was hardly atypi-cal. See Justices Brief 36 (“The fact is that local counsel for out-of-state attorneys in post-conviction litigation mostoften do nothing other than provide the mechanism forforeign attorneys to be admitted.”).
With the aid of his pro bono counsel, Maples filed apetition for postconviction relief under Alabama Rule of Criminal Procedure 32.4 Among other claims, Maplesasserted that his court-appointed attorneys provided con¬stitutionally ineffective assistance during both guilt and penalty phases of his capital trial. App. 29–126. He alleged, in this regard, that his inexperienced and under¬funded attorneys failed to develop and raise an obvious intoxication defense, did not object to several egregious instances of prosecutorial misconduct, and woefully un¬derprepared for the penalty phase of his trial. The State responded by moving for summary dismissal of Maples’ petition. On December 27, 2001, the trial court denied the State’s motion.
Some seven months later,
Munanka and Ingen-Housz associated Huntsville, Ala¬bama attorney John Butler as local counsel. Notwith¬standing his obligations under Alabama law, Butlerinformed Munanka and Ingen-Housz, “at the outset,” that he would serve as local counsel only for the purpose of allowing the two New York attorneys to appear pro hac vice on behalf of Maples. App. to Pet. for Cert. 255a.Given his lack of “resources, available time [and] experi¬ence,” Butler told the Sullivan & Cromwell lawyers, he could not “deal with substantive issues in the case.” Ibid. The Sullivan & Cromwell attorneys accepted Butler’sconditions. Id., at 257a. This arrangement between out¬of-state and local attorneys, it appears, was hardly atypi¬cal. See Justices Brief 36 (“The fact is that local counsel for out-of-state attorneys in post-conviction litigation mostoften do nothing other than provide the mechanism forforeign attorneys to be admitted.”).
With the aid of his pro bono counsel, Maples filed apetition for postconviction relief under Alabama Rule of Criminal Procedure 32.4 Among other claims, Maplesasserted that his court-appointed attorneys provided con¬stitutionally ineffective assistance during both guilt and penalty phases of his capital trial. App. 29–126. He alleged, in this regard, that his inexperienced and under¬funded attorneys failed to develop and raise an obvious intoxication defense, did not object to several egregious instances of prosecutorial misconduct, and woefully un¬derprepared for the penalty phase of his trial. The State responded by moving for summary dismissal of Maples’ petition. On December 27, 2001, the trial court denied the State’s motion.
Some seven months later, in the summer of 2002, both Munanka and Ingen-Housz left Sullivan & Cromwell. App. to Pet. for Cert. 258a. Munanka gained a clerkship with a federal judge; Ingen-Housz accepted a position withthe European Commission in Belgium. Ibid. Neither attorney told Maples of their departure from Sullivan &Cromwell or of their resulting inability to continue to continue to represent him. In disregard of Alabama law, see Ala. Rule Crim. Proc. 6.2, Comment, neither attorney sought the trial court’s leave to withdraw, App. to Pet. for Cert. 223a.Compounding Munanka’s and Ingen-Housz’s inaction, noother Sullivan & Cromwell lawyer entered an appearance on Maples’ behalf, moved to substitute counsel, or other¬wise notified the court of any change in Maples’ represen¬tation. Ibid.
Another nine months passed. During this time period, no Sullivan & Cromwell attorneys assigned to Maples’case sought admission to the Alabama bar, entered ap-pearances on Maples’ behalf, or otherwise advised the Alabama court that Munanka and Ingen-Housz were no longer Maples’ attorneys. Thus, Munanka and Ingen-Housz (along with Butler) remained Maples’ listed, and only, “attorneys of record.” Id., at 223a.
There things stood when, in May 2003, the trial court,without holding a hearing, entered an order denying Maples’ Rule 32 petition. App. 146–225.5
5One of Maples’ attorneys observed, without contradiction, that the trial court’s order was a “word for word copy of the proposed Order that the State had submitted [with] its [December 2001] Motion to Dismiss.” Id., at 300.
The clerk of the Alabama trial court mailed copies of the order to Maples’ three attorneys of record. He sent Munanka’s and Ingen¬Housz’s copies to Sullivan & Cromwell’s New York ad¬dress, which the pair had provided upon entering their appearances.
When those copies arrived at Sullivan & Cromwell, Munanka and Ingen-Housz had long since departed. The notices, however, were not forwarded to another Sullivan & Cromwell attorney. Instead, a mailroom employee sent the unopened envelopes back to the court. “Returned to Sender—Attempted, Unknown” was stamped on the enve¬lope addressed to Munanka. App. to Reply to Brief in Opposition 8a. A similar stamp appeared on the envelopeaddressed to Ingen-Housz, along with the handwrittennotation “Return to Sender—Left Firm.” Id., at 7a.
Upon receiving back the unopened envelopes he had mailed to Munanka and Ingen-Housz, the Alabama court clerk took no further action. In particular, the clerk didnot contact Munanka or Ingen-Housz at the personal telephone numbers or home addresses they had providedin their pro hac vice applications. See Ingen-Housz Veri¬fied Application for Admission to Practice Under Rule VII,
p. 1; and Munanka Verified Application for Admission toPractice Under Rule VII, p. 1, in Maples v. State, No. CC– 95–842.60 (C. C. Morgan Cty., Ala.). Nor did the clerk alert Sullivan & Cromwell or Butler. Butler received his copy of the order, but did not act on it. App. to Pet. forCert. 256a. He assumed that Munanka and Ingen-Housz, who had been “CC’d” on the order, would take care of filing an appeal. Ibid.
Meanwhile, the clock ticked on Maples’ appeal. Under Alabama’s Rules of Appellate Procedure, Maples had 42days to file a notice of appeal from the trial court’s May 22,2003 order denying Maples’ petition for postconvictionrelief. Rule 4(a)(1) (2000). No appeal notice was filed, and the time allowed for filing expired on July 7, 2003.
A little over a month later, on August 13, 2003, Ala¬bama Assistant Attorney General Jon Hayden, the attor¬ney representing the State in Maples’ collateral review proceedings, sent a letter directly to Maples. App. to Pet.for Cert. 253a–254a. Hayden’s letter informed Maples of the missed deadline for initiating an appeal within theState’s system, and notified him that four weeks remained during which he could file a federal habeas petition. Ibid. Hayden mailed the letter to Maples only, using his prison address. Ibid. No copy was sent to Maples’ attorneys ofrecord, or to anyone else acting on Maples’ behalf. Ibid.
Upon receiving the State’s letter, Maples immediately contacted his mother. Id., at 258a. She telephoned Sulli¬van & Cromwell to inquire about her son’s case. Ibid. Prompted by her call, Sullivan & Cromwell attorneysMarc De Leeuw, Felice Duffy, and Kathy Brewer submit¬ted a motion, through Butler, asking the trial court toreissue its order denying Maples’ Rule 32 petition, thereby restarting the 42-day appeal period. Id., at 222a.
The trial court denied the motion, id., at 222a–225a, not¬ing that Munanka and Ingen-Housz had not withdrawnfrom the case and, consequently, were “still attor-neys of record for the petitioner,” id., at 223a. Further¬more, the court added, attorneys De Leeuw, Duffy, andBrewer had not “yet been admitted to practice in Ala¬bama” or “entered appearances as attorneys of record.” Ibid. “How,” the court asked, “can a Circuit Clerk in Decatur, Alabama know what is going on in a law firm inNew York, New York?” Id., at 223a–224a. Declining toblame the clerk for the missed notice of appeal deadline, the court said it was “unwilling to enter into subterfuge in order to gloss over mistakes made by counsel for the peti¬tioner.” Ibid.
Maples next petitioned the Alabama Court of Criminal Appeals for a writ of mandamus, granting him leave to file an out-of-time appeal. Rejecting Maples’ plea, the Court of Criminal Appeals determined that, although the clerk had“assumed a duty to notify the parties of the resolution ofMaples’s Rule 32 petition,” the clerk had satisfied that obligation by sending notices to the attorneys of record atthe addresses those attorneys provided. Id., at 234a–235a. Butler’s receipt of the order, the court observed, sufficed to notify all attorneys “in light of their apparent co-counsel status.” Id., at 235a–236a (quoting Thomas v. Kellett, 489 So. 2d 554, 555 (Ala. 1986)). The Alabama Supreme Court summarily affirmed the Court of Criminal Appeals’ judg¬ment, App. to Pet. for Cert. 237a, and this Court denied certiorari, Maples v. Alabama, 543 U. S. 1148 (2005)
,,, As amici for Maples explain, a significant conflict of interest arose for the firm once the crucial deadline passed. Brief for Legal Ethics Professors et al. as Amici Curiae 23–27. Following the default, the firm’s interest in avoiding damage to its own reputation was at odds with Maples’ strongest argument—i.e., that his attorneys had abandoned him, therefore he had cause to be relieved from the default. Yet Sullivan & Cromwell did not cede Maples’ representation to a new attorney, who could have made Maples’ abandonment argument plain to the Court of Appeals. Instead, the firm represented Maples through briefing andoral argument in the Eleventh Circuit, where they attempted to cast responsibility for the mishap on the clerk of the Alabama trial court. Given Sullivan & Cromwell’s conflict of interest, Maples’ federal habeas petition, prepared and submitted by the firm, is not persuasive evi¬dence that Maples, prior to the default, ever “viewed himself” as repre¬sented by “the firm,” see post, at 4, rather than by his attorneys of record, Munanka and Ingen-Housz.
…. “The cause and prejudice requirement,” we have said, “shows due regard for States’ finality and comity interestswhile ensuring that ‘fundamental fairness [remains] the central concern of the writ of habeas corpus.’” Dretke v. Haley, 541 U. S. 386, 393 (2004) (quoting Strickland v. Washington, 466 U. S. 668, 697 (1984)). In the unusual circumstances of this case, principles of agency law andfundamental fairness point to the same conclusion: Therewas indeed cause to excuse Maples’ procedural default. Through no fault of his own, Maples lacked the assistanceof any authorized attorney during the 42 days Alabama allows for noticing an appeal from a trial court’s denial of postconviction relief. As just observed, he had no reason to suspect that, in reality, he had been reduced to pro se status. Maples was disarmed by extraordinary circum¬stances quite beyond his control. He has shown ample cause, we hold, to excuse the procedural default into which he was trapped when counsel of record abandoned himwithout a word of warning.
III Having found no cause to excuse the failure to file atimely notice of appeal in state court, the District Court and the Eleventh Circuit did not reach the question of prejudice. See supra, at 10–11. That issue, therefore, remains open for decision on remand.
* * * For the reasons stated, the judgment of the Court ofAppeals for the Eleventh Circuit is reversed, and the caseis remanded for further proceedings consistent with this opinion.
It is so ordered.
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