Posted: May 31, 2007
BEAU BIDEN SIDLES UP TO THE BAR, AND THEY'RE BUYING
By Celia Cohen
As a Democratic candidate for attorney general, Joseph R. “Beau” Biden III often was ridiculed by the Republicans as less of a lawyer and more of a politician.
It was therefore something of a rite of passage when the Delaware State Bar Association invited the new attorney general to give the keynote speech at its Law Day lunch last week in a public acknowledgement that yes, as a matter of fact, he is one of them.
Then Biden immediately did a very politician-like thing. He asked for a handout.
Not that he called it one. In political-speak it was “a dialogue and a discussion in coming up with creative ways to help us with our overburdened caseload.”
Biden followed with a very lawyer-like thing. He made his case. He asked for contributions, perhaps in staffing and perhaps in dollars, from the state's top law firms and corporations to spell his deputies through a partnership he described as benefiting both public and private practices.
The Law Day presentation, made to about 220 lawyers and judges at the Hotel du Pont in Wilmington, appears to have impressed key opinion leaders of the bar, and Biden may be on his way to accomplishing what he wants.
Sometimes the attorney general needs to be both a lawyer and a politician.
Biden runs a Justice Department he is fond of calling the largest law firm in Delaware. It has about 180 lawyers, roughly half of them handling criminal matters. They are swimming in overwork -- about 9,000 cases a year for each deputy handling lesser offenses in the Court of Common Pleas and about 200 cases a year for each one trying more serious offenses in the Superior Court.
Something has to be done, but governmental solutions can go only so far. Biden has asked for legislation that would decriminalize many traffic stops, lessening the Common Pleas caseload, and he also would like the authorization to hire more deputies, but it is a tight budget year.
There has to be relief elsewhere. Biden was looking at a project in Minneapolis-St. Paul, where a spike in crime prompted the Target retail store to underwrite a prosecutor, when he was approached by Victor F. Battaglia Sr., a past president of the bar association, with a suggestion that the law firms and corporations might be able to offer such help here.
It could come in a variety of forms, not just money to pay for prosecutors. Law firms could defer the start dates for new associates, letting them work at the Justice Department in the interim, as they do for judicial clerkships, or they could send out current associates to spend a year or so as deputies.
Biden called the proposal a "positive revolving door." The Justice Department would get additional staff, and the law firms would get back attorneys with courtroom experience coming far earlier than it would in the more glacial world of private practice with its high-stakes clients.
"The legal community is so generous here. The state's business is so immense at this time. This is community stuff. We all benefit," Battaglia said.
"It is advantageous for the law firm, the attorney and the public," said Edmund N. "Ned" Carpenter II, another past president of the bar association.
The idea sounds like a throwback whose time has come again. Before the Justice Department was modernized in the early 1970s with the creation of a full-time legal staff, new lawyers in private practice worked as part-time prosecutors.
Ned Carpenter was one of them. When he was starting out in the 1950s at Richards Layton & Finger, he also was thrown into some of the most famous criminal trials of the day. He prosecuted an attempted murder case in a courthouse lit by kerosene lamps while the jury deliberated in the teeth of Hurricane Hazel with the power out. He also handled the arrest of an out-of-state rabble rouser inciting a crowd at the time of the Milford riots over school integration.
"We regarded it at Richards Layton & Finger as a wonderful opportunity for young lawyers at the firm. They immediately got into court, immediately came into contact with judges and juries and immediately got experience," Carpenter said.
Nowadays it would not take much to make a difference at the Justice Department. Only a handful of loaner lawyers, probably four to 10 of them, would be enough to relieve the criminal caseload, according to Chief Deputy Attorney General Richard S. Gebelein, both a former Superior Court judge and attorney general.
The ethics would have to be worked out to prevent conflicts of interest for law firms with civil matters either for or against the state, but it looks doable. "I don't see an insurmountable problem," said Andrea L. Rocanelli, the chief disciplinary counsel overseeing lawyers' conduct.
William D. Johnston, also a past president of the bar association, believes the idea has merit but wonders how effective it would be without additional resources for the Public Defender's Office and the courts, as well. (No doubt he hears about the court system's woes at the kitchen table. He is married to Superior Court Judge Mary M. Johnston.)
"I think it could be structured to be a win-win for the Department of Justice and the law firms and their attorneys. My sense is it would not improve the administration of justice unless something similar is given to the Public Defender's Office and to the courts," Johnston said.
Gebelein gently parried that objection. "We think we're playing catch-up. I'm sure everybody else thinks they're in the same position," he said.
Biden carries one of the most famous Democratic names in Delaware. His proposal seems Republican, so to speak, this public/private initiative, but he does not care. "If it works, it works. It would elevate all parts of the bar," Biden said.
There is nothing concrete yet, but Biden has the bar thinking. "Beau Biden, like his father, is a charmer," Ned Carpenter said.
Carpenter is a Republican, and he counts himself charmed.