When Robb Fickman was the president of the Harris County Criminal Lawyers Association, he did something that mattered. He put his ass on the line by taking a position that angered people in power, challenging a sitting judge who acted like a tyrant. By doing so, he courted retaliation. Robb didn’t care.
The judge he grieved, Joan Campbell, is retiring, Chron reporter Brian Rogers writes a glowing homage to this fine jurist for the time she wasn’t cruel and arbitrary, but instead did the job for which she was paid. What a wonderful judge. How good of her to be thoughtful in sentencing one defendant. When someone retires, graciousness dictates that we only remember the good, as if the bad never happened.
But Fickman chooses not to be gracious, just as he wasn’t afraid of the potential retaliation against him. Mark Bennett questions whether Fickman’s strength and boldness has given way to a different perspective.
Maybe there’s some variant of entropy that applies only to criminal defense lawyer bar associations, where they start out bold and purposeful, with a clear understanding of why they exist and whose voice they express. But over time, the strong grow old and weary, and new people come into the organization. The old were there out of a sense of duty, and they were willing to risk their personal comfort and welfare to achieve greater goals.
I say, “the criminal-defense bar’s view,” but of course there is more than one view represented in Harris County’s criminal-defense bar. Some criminal-defense lawyers—at least one of whom aspires to be the next president-elect of the Harris County Criminal Lawyers Association—would vocally disagree with Fickman telling the truth about Campbell. These lawyers take the position that “we should avoid making enemies” is a good excuse for not doing the right thing. They would rather give judges (metaphorical?) handjobs or kolaches than file judicial-conduct complaints.
The new come in for other reasons, some because they want to go from unknowns to players in the field, or seek validation, or want to network, are joiners, like the kids nobody notices in high school who are in every club. These are not the sort of people who take risks. They certainly won’t put themselves as risk.
Criminal defense lawyers love telling people they are the gladiators of the legal system, gunslingers who are ready at a moments notice to stare down Goliath with their slingshot at the ready. it’s so romantic, and fills their bloomers with self-worth. Maybe they are when facing the institutionally acceptable enemy, though most collapse like an empty suit when the mere hint of a threat against them is uttered. Tough guys, until it isn’t easy.
There is an aphorism that covers this situation, much as there is one that suffices to justify whatever people want to do:
You can catch more flies with honey than vinegar.
Be nice to judges. Don’t make waves. Don’t challenge them or, when they do wrong, call them out. That, the new guys say, is how we should be. Don’t make enemies. It’s less a belief than a rationalization for wimpiness. They’re afraid, and this is how they explain why they cower in the corner whenever they are asked to pick sides.
That’s right. Nobody likes us. Not the judges. Not the prosecutors. Not even the clients. Nobody. While it may well be that they don’t dislike you nearly as much if you just sit there with your mouth shut and do nothing, that’s not the same as liking you. Yet you are willing to fade into non-existence, pointlessness, to avoid anyone thinking ill of you?
Robb Fickman is made of sterner stuff than the H&K crowd. He belongs to the criminal-defense wing of the criminal-defense bar. If something needs saying, Fickman is not going to be deterred by the fact that saying it will make him enemies.
Fickman is a real criminal-defense lawyer, and that’s what real criminal-defense lawyers do. By definition, the job requires bucking the opinion of the majority. When we are doing the job, we say the things that nobody wants to admit are true; we point out that the emperor has no clothes; we save Frankenstein’s monster from the mob. So the mob doesn’t much care for us.
It was bad enough when I watched this happen in my own home, the New York State Association of Criminal Defense lawyers, compelling me to resign as vice-president, and again as a board member, in disgust after I personally failed to sway enough people to put themselves at risk by focusing on the mission of the institution. The mission, always couched in a lovely platitude, honored in the breach.
I’m told that we must be less aggressive, less offensive, less strident, or we will make people angry with us. And so the best we can do is ride the coattails of the bold, pale facsimiles of those who aren’t afraid of being the first to take a stand. Or worse, get so caught up in arguing amongst ourselves that we end up doing nothing. Stand for nothing. Be nothing. But at least no one was offended.
It’s painful to watch this happen to the HCCLA, as the warm and fuzzy voices of not making waves predominate. A judge may do harm to their clients, but better to not offend the judge and stay on their good side. After all, if they act, the judge might get angry with them and, oh my god, do something. They tremble at the very idea of someone being angry with them.
There has to be a name for this phenomenon. It happens too regularly for there not to be. But no matter how warm and fuzzy the view, there is one immutable fact that remains. The powerful will still hate us because of who we are, and the lies we tell ourselves won’t change that.
Update: Mark Bennett explains how I completely misapprehended the situation with the HCCLA by projecting my assumptions onto his scenario. The truth is that it never occurred to me, not for an instant, that what he wrote about could have possibly been different than my experience.
This shows the power ot assumptive thinking and projection, and one can be utterly wrong without ever considering alternatives. My bad, and my apologizes to Fickman and the young bucks of Harris County.