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St. Thomas Law Review

Document Type

Article

Abstract

In the present article, I will identify the potential rehabilitative role of the attorney from the beginning stages-possible diversion, for example through sentencing and even beyond-through conditional or unconditional release, and possible efforts to expunge the criminal record. This article has two principal purposes; first, to call for the explicit recognition of a TJ criminal lawyer, and to provide, in a very sketchy manner, an overview of that role; second, to propose an agenda of research and teaching to foster the development of the rehabilitative role of the criminal lawyer. While much of the proposed research would discuss the rehabilitative potential of applying the current law therapeutically, practitioners and scholars working in this area will also naturally have occasion to consider alternative approaches, resulting in proposals for law reform. The agenda is intended as a warm invitation to several communities, each of which, if so inclined, could contribute mightily to this effort, which ultimately should result in journal articles, practice manuals, anthologies, and texts. The most obvious community consists of involved practitioners and, especially, their academic counterparts, the community of clinical law professors. Law school clinical teaching and scholarship are uniquely suited to address many of the issues raised later in this article. Another relevant community is that of social workers, criminologists, psychologists, and the like, some of whom are connected with law school clinics or are working as practitioner-scholars in the Therapeutic Jurisprudence area. Finally, academics working in Therapeutic Jurisprudence and in criminal law, especially in sentencing and corrections, would be highly valuable partners in this enterprise. So would their students, and a number of the topics raised below might indeed serve as interesting and useful exercises for course papers. It is time, then, to begin to sketch more clearly the role and practice setting of the TJ criminal lawyer, taking into account certain important skills, legally-relevant doctrines, and the kind, content, and timing of certain important conversations with clients. In the effort of constructing an agenda, my approach will be to cite much of the relevant literature, but not generally to synthesize or summarize it in any detail. My main objective is to provide interested others with a jumping-off point, and to pose questions and suggest avenues of future inquiry. The reader will note immediately that the proposed attorney-client relationship bears virtually no resemblance to many shameful systems of indigent defense, where crushing caseloads allow for little client contact and where the only real objective is to secure a decent deal on a plea. But legal clinics need to teach excellence, to push for expanded legal horizons, and to model and point the way to the provision of first-rate legal services. They cannot succumb to mimicking the structural ineffective assistance of counsel exhibited in many public sector defense programs. Indeed, this article ends with a discussion of the structure of legal services, and proposes that very area as one deserving the creative efforts of clinical legal scholarship.

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