Introduction
All lawyers are bound by the ethical rules of the legal profession. However, newly collected empirical evidence suggests that a subset of court-appointed attorneys in Pennsylvania routinely violate basic ethical principles when they employ a particular procedure: the Finley1 “no-merit” letter.2 Such letters permit court-appointed lawyers in postconviction cases to seek withdrawal by publicly advocating against their clients’ litigation interests.3 The high prevalence and tolerance of ethical violations in this theater of law warrant recognition of a discrete culture of unethical lawyering. This culture routinely condones facially improper attorney behavior,4 including the prejudicial disclosure of privileged and confidential information.5 Moreover, the striking adversity documented between attorneys and clients in the Finley context calls into doubt whether Finley-filers truly function as “lawyers” within the Anglo-American legal tradition, which has long assumed that lawyers are agents of their clients.6 Pennsylvania’s Finley procedure is discordant with core principles of the legal profession and palpably undermines the rule of law.
A preliminary study (“Study”) of 335 Finley cases led by one of this Essay’s authors illustrates how this procedure normalizes a legal subculture distinguished by unethical lawyering and deficient legal analysis.7 A subset of 100 Finley letters — those filed in Philadelphia County in homicide cases involving Life-Without-Parole (LWOP) sentences — was substantively reviewed and coded for forty-nine discrete patterns of unethical behavior and deficient analysis.8 All 100 letters contained evidence of both.9 Among all 335 letters, the poor stewardship of this subculture over a diminished rule of law exclusively affected people who are poor10 and disproportionately affected people who are Black.11 The Finley procedure fosters this subculture by abandoning the adversarial system, allowing attorneys to abuse the trust placed in them by their clients, tolerating an unhealthy degree of attorney-client adversity, and systematically under-examining postconviction claims. Part I traces the emergence and structure of the Finley procedure.
The Study was inspired by the lived experiences of people who are poor, incarcerated, and appointed a Finley-filer — a group that included one of this Essay’s authors until his conviction was vacated and he was freed. As John “Yahya” Moore conveys in his own voice in Part II, his lawyer filed a “no-merit” letter more than two decades before his homicide conviction and LWOP sentence were vacated. Mr. Moore’s lived experiences are woven throughout this Essay to illustrate the human anguish caused by unethical lawyering, the extreme power imbalance between attorneys and their court-appointed clients, and the profound stakes of neglecting the rule of law.
Part III illustrates how “no-merit” letters sustain a culture of excessive disloyalty among Finley-filers. This culture first takes shape through Finley-filers’ documented abuses of the trust that both clients and courts place in them by virtue of their attorney role. The culture is amplified by Finley-filers’ disparagement and mistrust of clients,12 as well as their failure to communicate with clients before aggressively rebutting their claims.13 Lastly, the culture of disloyalty reveals itself in the discretionary, argumentative choices that Finley-filers resolve against their clients’ interests.14 The picture of unethical lawyering that emerges from Part III evidences profound breakdowns in the attorney-client relationship and the adversarial system.
Part IV demonstrates this legal subculture’s failure to uphold the rule of law. Finley-filers’ twin failures to scrutinize facts of record and to develop extra-record facts through investigation undermine judicial fact-finding. Furthermore, Finley-filers’ documented failures to faithfully ascertain, accurately communicate, and objectively apply the substance of the law in “no-merit” letters sharpen the picture of a legal subculture failing to uphold the rule of law.
The Conclusion highlights how the Finley procedure appears incompatible with the assumption that appointed postconviction lawyers are agents of their clients. It also discusses the inherent difficulty with different approaches to reforming this broken legal subculture and calls for a more comprehensive empirical study to assess how to repair the damage wrought by Finley.