Tuesday, November 11, 2003

Rulings from on High

The Georgia Supreme Court handed down two significant decisions yesterday. In the first, the Court unanimously reversed a Georgia Court of Appeals decision regarding indigent defense claims. And in the second, the Court again unanimously agreed with the state bar's position that only attorneys can handle real estate closings.

The former decision may be irritating for convicted defendants, but it's a relief for the legal system. For years, the state's test for a legal defense claim consisted of two parts. First, it had to be shown that the defense lawyer's performance was well below accepted performance standards. Second, the defendant had to demonstrate that as a result of the poor performance, the result of the trial was prejudiced. The Court of Appeals, in essence, chose to drop the second prong, and said that prejudice wasn't necessary.

Indigent defense claims can be aggravating to prosecutors. One can do his job without flaw, obtain a conviction, and still have a verdict overturned because the defense wasn't paying attention. In my jurisdiction, we had a murder conviction overturned last month because the defense attorney had to use a strike against a juror who had already been dismissed. The court somehow made an error, and one must assume that the defense noticed, because they *did* strike the juror, so the person didn't end up on the jury. One wonders if the defense just keeps quiet about such matters, opting to sit on their own error as a last-resort option for appeal.

The Court of Appeals' test would have been a nightmare. A standard requirement of the law is that to file suit, you have to show some sort of injury. The CoA said that indigent defense claims could proceed without any proof that the defendant was actually injured by their attorney's performance. Appeals would have skyrocketed, and the courts would've been clogged. Kudos to the S.Ct. on this one.

But I can't say the same about the latter case. Requiring lawyers in real estate closings strikes me as the bar attempting to monopolize power for itself, to ensure that attorneys will continue to get plenty of work by denying others the ability to do it. The result to the consumer will be higher costs for virtually the same service. As for the claim about lawyers providing more reliable service, my classes in Property and Real Estate Transactions certainly taught me that lawyers aren't infallible on those matters. And I don't doubt that a person can become quite well-skilled in matters of land transactions without having to take three years of law school and pass the bar.

Some years back, the Arizona courts came to much the same conclusion as the Georgia court did yesterday. The public response was to amend the Arizona constitution, allowing for real estate dealers to engage in that narrow practice of law. I wouldn't be surprised if Georgia pursued the same track, and I hope it does.


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