Cut The Crap

After a  post the other day stemming from a  couple of  posts at My Shingle by Carolyn Elefant (to which she took umbrage, I hasten to add), I spent about an hour on the phone with a troubled lawyer.  During that conversation, something emerged that compels me to offer this suggestion: Stop lying.  Stop lying to others. Stop lying to yourself. Just stop lying.

Much like the lawyer in Carolyn’s posts, the guy I spoke with had left a stable and reasonably well-paying job to go solo.  Unlike Carolyn’s guy, he had a strong reason to do so, having gone from defense lawyer to prosecutor, only to find that he couldn’t stomach the job and had to return to defense.  Even so, he looked back on his decision as a monumental mistake.

He was an experienced lawyer, with more than ten years in the trenches.  He had substantial trial experience, though he hadn’t tried a case since going out on his own.  He followed the advice, played by the rules, and came into the game with the legitimate ability to fulfill his obligation to defendants.

He was dying.  His business was essentially non-existent.  As his savings depleted, the realization of more than a decade of his life, the sacrifices of his family, hit home. 

During the conversation, he told me that as he talked to other criminal defense lawyers, he was told that they were doing great. Fabulous. Big cases here. Huge cases there. Trials, trials, trials. New clients calling daily, with interesting cases and bulging wallets.  Life couldn’t be better.

“Why,” he asked me, “was everybody lying?  Or am I the only one drowning?”

I’ve spoken with many lawyers, many readers. You know who you are. You know that I know the truth. The business of criminal defense is dying. It’s awful. It sucks. And you’re hanging on by a thread, if at all.  Yet, most put on their game face, talking themselves up as if they are somehow beating the odds, knocking down the world, making a killing. Nobody wants to tell their brethren that they’re in the same boat, struggling daily to cover the nut and praying that the next phone call isn’t another nutjob or desperate defendant without a dime to his name.

It’s not that there is a shortage of criminal defendants, though crime is significantly down and serious crime even more so.  There is a shortage of criminal defendants who can afford to pay for a lawyer.  Sure, there are  some lawyers who are doing well, but you can count them on your fingers and toes, without resort to dropping trou. And there are a great many criminal defense lawyers, exceptionally good ones, who fight over crumbs these days, because that’s all they can do to survive.

It’s time we admit this, because walking around the courtroom hallways with our chests puffed out isn’t putting any food on our tables. 

During my phone call, we spoke of the baby lawyers hanging out in the hallways trying to catch the attention of a defendant’s mother with $100 in her pocket.  We spoke of n00bs, barely competent if at all, taking felonies for $1500 total.  He didn’t blame them, knowing they had loans to pay.

The lawprofs are busy reinventing law school so they can continue to churn out tens of thousands of new lawyers. The talk is about law school tuition and practice-ready lawyers.  The theory is that if they can produce lawyers without the $150,000 in debt, they can service the middle class, who can’t afford legal representation.

It’s a lie, but the lawprofs don’t realize it. They’ve never experienced law office finance, what it takes to pay rent and phone, or staff and equipment.  While student loan debt is a factor, it’s only one of many. They don’t grasp what every criminal defense lawyer faces daily, the cost of merely existing. They never paid a rent bill during their judicial clerkship or stint in the United States Attorney’s office.

On top of survival, a lawyer hopes for a bit more. To feed his family. To buy a car. A new car. To own a home, and once purchased, put furniture in it. To go out to eat once in a while, or maybe take in a movie. To go on vacation.  To pay for a child’s college education.  We’re called selfish, blood-suckers for wanting these things, expecting that the three years in law school, the tuition paid or owed, the experience gained over years, should produce a fairly stable middle-class existence.

The irony is that most criminal defense lawyers aren’t making enough money to live as well as the middle class clients they’re expected to subsidize.  It’s unfair that people should have to pay for lawyers?  Perhaps, but it’s unfair that lawyers aren’t doing any better than the clients who can’t afford them.

The fact is that the vast majority of criminal defense lawyers are starving.  Because of this, lawyers are cannibalizing themselves, stealing cases in the hallway and undercutting each other at every turn.  Websites create the expectation that people can get $1000 of legal representation for $12,97. They teach that lawyers desperately want to give away their advice for free.  The message is lawyers are fungible, or that no one wins anyway, so why bother paying money when you can lose just as well for free.

And what of the glory of social media marketing?  By my scientific calculations, one decent case comes in per 5,000 calls. If it’s high volume, low price, you want, there’s some potential. If you don’t mind insanity, or the consultation with 120 ridiculous questions, to be repeated to 25 lawyers they found on the internet, it may work. 

But at the end of the day, it will never produce the quality of cases and fees needed to sustain a practice, not to mention allow a lawyer to thrive financially. Sorry to burst the bubble, but a vague anecdote from a source that earns his living off selling social media marketing isn’t a sufficient basis on which to bet your future. Many have tried. And failed. Are you that special that it will be different for you?

I told my caller that he wasn’t crazy.  I told him that we’ve become a bunch of liar, fakers, pretending to be doing great because no one wants to appear to be a failure.  Failure doesn’t bring in the next case. Failure scares people away, like some ironic form of leprosy, as if it’s contagious.  Only losers fail, and no one wants to announce to his peers that he’s a loser.

I’ve watched as a great many excellent, experienced criminal defense lawyers have walked away over the past few years.  They took an oath, but the word “poverty” was never spoken. It’s not that they don’t want to help every person accused, but they have mouths to feed.  And yes, they want to enjoy a decent standard of living.  There’s no crime in that.

But until the lies stop, there will be no real discussion of how to change this downward spiral and make the practice of criminal defense a strong, desirable area of practice.  You can’t pay the rent with lies, and nothing will change until we cut the crap and start talking about how to make the practice criminal defense financial viable again.




32 comments on “Cut The Crap

  1. Bruce Godfrey

    In Maryland, the Office of the Public Defender no longer screens for financial need in accepting the vast majority of its cases, under an interpretation of a recent Court of Appeals decision. Thus the OPD is the presumed law firm not merely for the defendants whom the Gideon decision promised representation – the indigent – but also for those merely “reluctant” who have means, union jobs, middle class salaries, access to credit unions, the ability to pay a 2/3 reduced fee at least under the effectively defunct Bar Assn. “Gray Panel” cases.

    The damage has been immense not only to the criminal defense bar as a whole but especially to the newer private defense attorneys, many of whom took Gray Panel cases under mentorship as a means of early modest. This development has long-term implications in terms of talent development; it’s almost a Soviet-bloc state takeover of this service (I exaggerate but not as much as you think.)

    Several companies that provide (ethically compliant) mail marketing services in MD for criminal defense have been undergoing problems getting their attorneys to pay timely and in full. In my own case, my practice’s main practice area is somewhat counter-cyclical to the business cycle and so I am not quite as badly hit. My friends who handle predominantly criminal defense use more vulgar, violent metaphors in their language than they used to; a cloud of doom hangs over them.

    One CDL friend reports that his gross – once high enough to fund a very respectable lifestyle and two trips abroad per year – has dropped by 40%. This is ironic, because he is probably around 50% MORE well-known now than he was at his high-water mark, with a greater pool of referrers, old clients needing help for self/family/whatever, acquaintances/friends in the Bar, etc.

    Only practice areas I see growing are bankruptcy, employment law (sort of) and attorney malpractice.

  2. Rich Newsome

    It’s not just the criminal defense bar that is hurting, the PI bar is too. Through a combination of tort reform,the proliferation of mega advertising firms, and chiropractor owned ‘lawyer referral services’, small personal injury firms — especially the ones that do standard automobile insurance claims — are getting killed.

  3. PleadThe5th

    I hear you, brother. It’s bad in San Francisco too. Filings are down 50% in the last 3-4 years, the private appointments panel nitpicks every bill, and private clients do not exist. Oddly, I got lucky with some clients in the last 12 months and people look at me in the hallway, astounded I’m still in the game, when presumed better attorneys have become scarce. Weird.

  4. SHG

    How about controlling the number of people who are given license to practice so that there aren’t tens of thousand milling about with expensive degrees and no way to support themselves. Then having the broad and niche bar associations work toward strongly advocating a culture of competence, dignity and worth, educating against the sham cottage industry that “teaches” the public that lawyers are fungible, that promote blank forms over educated advice, that suggest that there is no reason to pay good money when they can get everything for free on the internet, or for cheap in the hallways.

    Lawyers have put individual self-interest ahead of all else in the race to the bottom, and the profession (via collateral businesses like Avvo and grossly misguided bar associations like the ABA) has either turned a blind eye or actively accommodated the deprofessionalization so as not to appear out of touch with cool, new developments. 

    The trend of devaluing competent legal representation while simultaneously flooding the profession with warm bodies will be the death of lawyers. No iPad will save us.  And until lawyers stop eating their own and come to the realization that our viability depends on our re-establishing the dignity of the profession, nothing will change.

  5. Mark W. Bennett

    Tort reform is part of the criminal-defense bar’s problem as well: we’re contending with a glut of PI lawyers who think that the criminal courthouse is a good place to make a quick buck.

  6. Dr. Sigmund Droid

    Here’s the deal. Seems y’all might not have the right mindset for the new world order. An attitude adjustment (meaning a drastic lowering of expected pecuniary rewards) is necessary to be content with the environment many of you are now experiencing.

    Instead, it may be beneficial to think of a modern-day criminal defense attorney more as a profession in which monetary compensation and an associated material abundance should not be a primary or even secondary consideration. The personal value for the practitioner derived from being in the service of others, providing a tangible societal benefit, and the chance, if you do your job well, to leave a world a better place are probably better reasons for becoming or continuing on as a criminal defense attorney.

    It’s really no different than being an outstanding teacher in the public school system or a social worker who works his or her tail off to make a real difference. These too are professions which require a substantial education and more than a hack level effort in order to excel. But the ones who do shine in such professions have a meaningful and positive impact on an untold number of lives throughout their careers.

    If the amount money provided by your job is highly important you, for whatever those reasons may be, then you are probably in the wrong profession, though I don’t know for sure, as I’m merely a doctor . . .

  7. SHG

    So criminal defense lawyering is the new priesthood?  Or ascetic maybe? Zealots with an oath of poverty for the cause?

    I don’t think it’s likely to work. Aside from the debt taken on, monetary compensation is kinda important to most of us. You know, kids to feed and such. So a lot of smart people who prefer to enjoy a comfortable life rather than living in a cardboard box are going to elsewhere, and that doesn’t leave too many to suffer a life of poverty and deprivation.  You really want the only people who face down the government to be the bottom of the class?

    Nobody becomes a criminal defense lawyer to get rich, but to be comfortable in the process isn’t too much to ask. And if it is, then you’re not going to like who’s left. 

    And if the comparison to teachers (who get a much better pension than CDLs without the education debt), then CDLs would be in the government’s employ and thus at the government’s mercy, as it could pull the plug at will. Not an optimal situation for people whose job it is to make the government’s life miserable.

    But an interesting thought.

  8. RAFIV

    This problem exists in the family law bar as well. Young, inexperienced attorneys or counsel from outside practice areas such as real estate are making grandiose promises to clients and offering services at exceptionally low rates. As a rule – and there are exceptions- they do not focus on providing the highest legal services; rather, they are focused on volume and quick turnaround in order to generate subsistence level income. The overall effect is a greatly diminished quality of practice for all concerned: clients, courts and opposing counsel.

  9. Dr. Sigmund Droid

    If the economics of the profession are truly trending in the manner you describe, the question becomes simply this:

    Do I, through my own efforts and/or the efforts of like-minded others, have any reasonable chance of effecting positive change in relation to this issue during my working years?

    If the answer is NO, then you realistically have only three options: A) piss and moan about something you agree cannot change; such actions will inevitably leave you with a deep sense of resentment, disappointment, and discontentment over time; B) change your own values to better align with those attributes of your profession that you can more readily influence; yes, these things are likely to be non-monetary in nature but such acceptance will certainly improve your long-term happiness ; C) change your career to something with greater monetary rewards.

    If the answer is YES, then that’s a whole different kettle of fish . . .

  10. RAFIV

    Indeed. These clients are often desperate to have representation, even for a day. Unfortunately, an inexperienced practitioner can make matters exponentially worse. Their ill-informed advice can waive important and interests and generally make a mess of the whole process. Some do try: these are the ones who seek out experienced practitioners for advice. Advice – I might add – that is freely given by the famously helpful family law bar.

    This is why I don’t practice criminal law. It require detailed and nuanced knowledge I do not possess and have not the time to master. If I make a mistake it irrevocably alters a man’s life. I cannot live with that on my conscience. I would rather starve.

  11. Dr. Sigmund Droid

    I didn’t claim my logic isn’t obvious, but I will state, on the record, what is obvious to some is less obvious to others. This is especially true when you are deep in the forest and can’t necessarily discern the trees.

    I always chuckle when people, including myself (yes, I have enough personal insight to laugh at myself), bitch about things they have little or no control over. Either shut-up or do something (anything, of course, but continued bitching).

    I will say this – what I think is not apparent to most is they have total free-will to completely change some, most, or all of their values this very moment, to better address their realities. Most won’t – they have too much pride, mental inertia, and locked-in notions to really think differently about and challenge their existence – but it is possible. And liberating too, kinda like a shorn scrotum . . .

  12. SHG

    There was a group that sold t-shirts on the streets of Manhattan that said “stop bitching and do something about it.” I bought one for my wife, which was a mistake, but that’s a discussion for another day.

    That’s the point of this post (and, to a large extent, the point of this blawg), that we’re looking at a systemic problem, and by first acknowledging the existence of the broader problem, and then clarifying that we can improve the situation by enlightened self-interest in maintaining a strong, viable criminal defense bar.  It’s fixable if we admit our problemsand deal with them effectively.

    The perpetual question, of course, is whether enough lawyers will recognize that their attempt at short term gain comes at their long term self-interest, as well as the larger societal interests at stake.  But we start with a baby step and work up to world hegemony.

  13. PleadThe5th

    I think the systemic changes to criminal defense aren’t in our favor. Unless you have a lot of resources, most cases settle out for roughly the same pound of flesh. Thanks to the internet, this secret is out. Secondly, crime is falling. Violent crime is particularly down. Thirdly, budgets have necessitated big changes, at least in California, in policing and prosecution. This reality means more deterrence and fewer cases. It will never go back to the way it was (at least in California where you could make a pretty good living from court appointed cases).

  14. SHG

    The system is us, not them. We (the criminal defense bar) need to get our act together. The plead ‘em and weep days didn’t invent themselves. The courts didn’t invent the high volume shops.  While appointed cases fill the empty hours (and may make enough to cover the costs), this isn’t what a private criminal defense bar was meant to do.

    If we let outside influences dictate our existence, we won’t be long for the nation.  And America won’t like it when there isn’t an independent lawyer willing and able to take on the government when it comes knocking (down the door).

  15. PleadThe5th

    Ok, I get your point. But where exactly are these clients going to come from? I’m not talking about the ones with no money. I’m talking about the ones that can afford the investigator, the experts, support staff? Criminal defense is expensive. High volume meet em greet em and plead em shops didn’t open up just because. People who get into serious trouble aren’t the most together people around. Hence they don’t have the resources of the target of an SEC investigation. Gideon vs Wainwright came out of a time when most criminal defendants represented themselves out of necessity.

  16. Spencer McGrath-Agg

    Actually, being a lawyer in private practice is very different from being a teacher or social worker, excellent or otherwise. Teachers do not pay a monthly lease on their classrooms in large metropolitan centers. Teachers and social workers never see the bill for the phone, electricity, support staff, etc. Some teachers and social workers are amazingly effective, and others only recognizable skill is manufacturing complete nonsense. Of course, the same spectrum can be used to measure private practice attorneys, but the private practice attorneys don’t have an army of other people to blame for these screw-ups. Bad advice means losing a client and a paycheck. However unenviable a teacher or social worker’s salary may be, the two-week paycheck going to be there.

    Are you a doctor in Canada? If not, perhaps the professional experience of having a government tell you what prices to charge would be enlightening. I would be happy to refer you to a Canadian immigration lawyer who can help you put your money where your mouth is.

  17. SHG

    Great and critical question, but one that will require more than a comment to answer.  In the interim, consider that indigent means indigent, and that an accused with assets in need of counsel should blame the prosecution for charging rather than the defense lawyer.  Good criminal defense is expensive, and it should be. It’s time society recognized it. If they don’t like paying for it, don’t elect people who enact more crimes.

  18. BRIAN TANNEBAUM

    Except that now you’re putting it on society to focus their thoughts elsewhere. They can’t do that when the wallet is involved. The (correct) theory that overcriminalization is the root of the problem doesn’t resonate with the public when the check they actually write is to a defense lawyer.

    The decline of the practice is squarely on the lawyers. When Joe decided that the only way he could get the cases that Bob gets was to charge $3 less, then Ted decided that charging $10 less would get him Joe and Bob’s cases. Then Bill determined he could do everything with an iPad (because non-practicing lawyers told him he could) and he started charging $20 less.

    Add all this with the underlying premise people have that criminal defense lawyers “should help” people in trouble, and you get a public that can, and will pay nothing.

  19. SHG

    Having people refocus their anger at the people who created the problem that defense lawyers are paid to resolve is a collateral benefit. There’s no reason why this can’t produce multiple benefits.

    But yeah, we, the criminal defense bar, are the root of the solution. I didn’t make that clear?

  20. BRIAN TANNEBAUM

    Yes, you made that clear, but also said that indigent folks have other targets for their anger. Your analysis is correct, but the “victims” of the system can only see as far as the person they have, or want, standing next to them to get them through the system. They don’t have the power, or constituency to effect change. For that matter, there is also an issue of whether criminal defense lawyers are an indentifiable entity that has a unified focus. They aren’t. There isn’t a criminal defense bar, there are several.

  21. SHG

    That’s why we need to stop adapting and start refocusing, both our own and our client’s understanding of the system.  As for a “unified focus,” let’s start with the NACDL and its state member associations, then local associations. Rather than spend their time giving themselves awards for doing nothing and obsessing about why no one wants to join, they can finally take a real position and pound at bread and butter issues, like the viablity of the private criminal defense bar.

    Or we can give up and stake out our own corner on the boulevard. 

  22. Anono Chapino

    “A masterful statement of the obvious.”

    Yes, it was. And it needs to be stated again and again, for as Orwell said, “We have now sunk to a depth at which re-statement of the obvious is the first duty of intelligent men.”

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