The Con

I explained to the defendant’s mother that it was my way to tell the truth, good, bad or otherwise. She responded that she wanted the truth, before launching into all the reasons why she thought her child should beat the charges. In every instance, she was shooting blanks. It’s not that there may not be well-founded arguments and evidence that would give her child a fighting chance, but if so, she wasn’t aware of them.

The truth tends not to be what a person whose loved one is facing decades of prison desires to hear. While she says she wanted the truth, what she told me suggests she wants hope. It’s an awkward situation, where my telling the truth isn’t going to endear me to her.  Did I want to be the bearer of bad news? It’s certainly not the best way to persuade a client to retain a lawyer.

When Judge Kopf linked to an ancient article in response to a post here, he explained that we all make compromises to survive.

More than 40 years ago, I read Abraham S. Blumberg’s 1967 classic entitled The Practice of Law as a Confidence Game: Organizational Cooptation of a Profession The premise of the article was that judges, prosecutors, defense lawyers and others in the criminal justice system make all sorts of compromises to make their lives easier. They do so at the expense of the defendant.

Mark Bennett beat me to the punch in discussing Blumberg’s article, speaking to the defense lawyers’ cooptation:

This is a fair char­ac­ter­i­za­tion over­all, but not uni­ver­sally. Most criminal-defense lawyers put the client first—before per­sonal and pro­fes­sional rela­tion­ships and “clients”—to some extent.

Those at the “lesser” end of that spec­trum are clearly derelict in their duties; those at the “greater” end are paragons of Sixth Amend­ment virtue.1 Most criminal-defense lawyers are nei­ther derelict nor paragons, but some­where in between. There are few who could not do a bet­ter job of sub­ju­gat­ing all else to the client’s interests.

1 Even a paragon puts her own inter­est in behav­ing eth­i­cally ahead of the client’s inter­est in being free. There are lines that not even a paragon will cross for the sake of the client. 

Mark’s description can be read superficially or deeply, according to the depth of the reader’s understanding of the defense function. For those non-lawyers whose experience has been poor, they will see all lawyers as con artists. Others, whose experience was better, will project their experience onto the profession.

Mark’s point about there being a spectrum as well as a limit at the top end (where, for example, even a paragon lawyer won’t bribe a judge, suborn perjury or destroy evidence to aid his client) to satisfy the duty of zealous representation within the bounds of the law, is critical.  Lawyers are anything but monolithic in the performance of their function.

And to add further confusion, even those at the “lesser” end of the spectrum have good days where they walk a client out of the courtroom, and paragons have bad ones, where they don’t.

But putting aside the question of whether “good” lawyers should be willing to do anything to help their client win, since breaking the law is outside the parameters of the lawyer’s function, I find myself troubled by Judge Kopf’s assertion that we all make compromises to make our life easier at the expense of the defendant.  I believe what he means is that we are all constrained to pick our battles, but the question remains what criteria we use: what’s best for us or what’s best for our clients.

Sure, we make choices that make our life easier, whether to adjourn to a Tuesday when we have to be elsewhere or a Wednesday when we don’t. But this doesn’t come at the defendant’s expense. Then there are the hard choices, whether to go to war over a small, relatively trivial, affront or to save geothermal war for the core fight.  But this is a tactical decision based upon the ultimate strategy of trying to prevail.  There are a million such decisions, permutations of choices, we go through in the course of representation.

Do we make these choices for our own benefit, and to the “secret” detriment of our clients?  If the point is that some lawyers fall into Blumberg’s cynical view of lawyers, that we’re all conning defendants while kissing judicial butt and making choices that best serve our lives, then sure. But this is something to fight against, to shame, to ridicule and expose.  This is not a mere accepted fact of life in criminal defense, to conceal from our clients with fancy lawyer-talk and sweet words of false hope.

In the course of explaining the difference between practicing lawyers and those engaged in alternative law businesses, I wrote:

You are in a business. I am in a profession. For you, the money comes first, For me, the client comes first.

Noah Waisberg, who has a contract review company called Diligence Engine, responded:

sounds nice, but does it really mean anything? Greenfield himself seems sincere about taking the “profession” aspect of law seriously. But law is a business first for many…

There is no question that there are people who are licensed to practice law who perceive it as means of making money, and that the trick is to get along, get the fee and get out.  No doubt Noah is right when he says that “law is a business first for many.”

This is a bad thing. This is the con that Blumberg wrote about in 1967.  This neither explains nor justifies Judge Kopf’s assertion that everybody compromises at the expense of the defendant, so it’s therefore okay.  This is what it looks like when you have no business being a lawyer in the first place.

So that we’re clear, I have a quibble with Bennett’s “paragon” description.  Lawyers who put their clients ahead of self-interest are not paragons. They’re lawyers. That’s what they swore to do, and they don’t get a prize or cool name for honoring their oath.

My choice yesterday was to tell the mother of the defendant the truth she said she wanted to hear but really didn’t.  Whether she retains me has yet to be seen. Either way, it’s how I roll because I’m a lawyer, and that’s what lawyers do.




11 thoughts on “The Con

  1. Alex Stalker

    How many lawyers are willing to be held in contempt and thrown in jail for their clients? (And of those, how many would do it for the right reason, and not self-aggrandizement?) I suspect only the paragons. If that is the test, then I fall short of being a paragon, but I don’t think it makes me not a real lawyer.

    Telling people the hard truth is (relatively) easy; I do it all the time. Telling the hard truth to a judge when he tells you beforehand that he will throw you in jail for it is much harder.

    1. SHG Post author

      I suspect that more lawyers than you think would be willing to be held in contempt if need be. But then, I’m a bit of a naïve idealist, so I could be wrong.

      As for telling the truth, when it comes with a six figure price tag, it’s not nearly as easy as you think. When you have to make that choice, let me know how it goes.

      1. Alex Stalker

        To clarify: I am willing to be held in contempt in the course of doing my job, and have thought at one point in my career there was a good chance a hearing was going to result in going to jail because I was upsetting the judge. (Via zealous advocacy, nothing improper.) However, I am not willing to specifically say something after being told saying it will get me sent to jail. If a judge says “say that one more time and I’ll hold you in contempt” I will not reply with “I need to make my record” and then say it again later. I’ll trust the appellate courts to sort that one out.

        I’m an attorney money can’t buy, so fair point about 6 figure payments. One of the benefits of being a PD is the consequences for telling someone something that is very true that they don’t want to hear are a lot lower than they are for you.

        I do think those 6 figures probably tempt you to not give a 100% upfront assessment on a case. Perhaps only subconsciously. (I’m not trying to impugn your ethics – I’ve seen several studies tending to show financial considerations statistically impact decision making even when actors report not considering them.) My hat is off to you if you tell that person your assessment the same way a PD with no financial interest would. I’ve seen several private attorneys take my cases and then get the same resolution I was working towards (or sometimes a worse one). I always wonder if they tell the prospective client before being hired that retaining them is unlikely to afford any benefit to the client, or if they just go into their spiel about how overworked PDs are.

        1. SHG Post author

          It’s impossible to have a meaningful discussion of whether taking a contempt hit is the right or wrong choice without the details (not just about the contempt, but all the surrounding influences as well), so it’s purely academic here. My point is that, given the right circumstances, most of us would risk our own comfort by being held in contempt if necessary. Whether it serves the clients interest to get tossed in the clink is another matter.

          As for selling a client, you raise a problem that probably wouldn’t make it onto your radar. If the defendant has the ability to retain counsel, then he not only should, but must. Representation by a PD of a non-indigent defendant isn’t a right, and they take the PD’s time and resources away from someone who should be served. There is a right to free counsel for the poor, but no right to free counsel for the cheap.

          1. Alex Stalker

            That’s a very interesting point I hadn’t considered re: selling a client. From my point of view, if I knew the client was going to get the same result either way, I’d advise them not to waste their money because it is in the best interest of the client (but not my time) to save however many thousands of dollars they would have spent hiring private counsel to no added benefit. At least in Washington State, I am unaware of any punishment for keeping an appointed public defender if you have the cash to hire a private attorney, other than the standard “public defender reimbursement fee” charged to nearly all convicted PD clients – which is far less than hiring even the scummiest private attorney would be. This is assuming the client did not perjure him/herself to obtain a PD in the first place.

  2. Thomas R. Griffith

    Sir, good afternoon. This is exactly why I believe it’s time to ditch the old school OATHs that sound like frat jokes and create one that addresses both parties as separate entities: the Criminal niche, and one for the Non-Criminal niche. Both being National (covering anything dealing with law degrees U.S. related) and mandatory that a copy be attached to the back of all Legal Contracts with a requirement that it be read to the client prior to signing, where the client must sign off that it was read aloud. (one box reserved for – “I Will Not Plea Bargain” & one for – “I Won’t Lie to and / or on behalf of Clients”). In addition it’s about time to require Letters of Certification to be on file at the firm & with the clerk of court. As it is now, we’ve (and Judges) became accustomed to the: lying, corner cutting, unethical & immoral business tactics some of the degreed learned at the used car lots and sadly went on to train others to follow suit. (if someone says the customer should research on the net. prior to any agreement, I will point them to the FAKERS & SHAKERS i.e. – the Ray Mavericks and Daniel R. Jacksons of Texas.) (and ask them to stop snorting Sensa).

    As a non-attorney spokesperson speaking on behalf of the poor (un & under employed at time of arrest), that had families step up and pitch in to hire an attorney to take it to a Jury Trial, vs. gambling with a sale-out court appointed, only to find out that the MoFo(s) lied through their teeth in Consultation(s), during all 15 mins in the Box(es), again at the Table(s) & followed up in the Holding Cell(s). – *Had the truth been a mandatory requirement on the front end where the OATH & Letter of Certification insured he / she was actually qualified to take Felony cases to Jury Trials, desperate family members working off word of mouth referrals from church parking lots (having been raised to have no reason to think a lawyer would or could get away with lying in order to get the down payment) I for one, wouldn’t be carrying this damn X around for rest of my life. Thanks. (for: being yourself, being Real & letting the chips fall where they may, as the clients and / or their families leave knowing the truth, like it or not.)

  3. Marc R

    Very nice analysis, Scott. I think good lawyers (not paragons, just lawyers) will take the contempt hit and the bar complaint from the state attorney. The situation I’m thinking of is say at a pre-trial conference the judge asks your client “will you testify?” You respond on behalf of your client “your honor, my client will retain his 5th amendment right to not speak at this time, and further we haven’t discussed the issue and need to see how trial unfolds.”

    The judge is not happy and says “Mr. X, stop interrupting” and again asks your client directly “sir, will you be testifying? it’s a simple ‘yes or no'” There’s been an epidemic in a number of courts where the judge asking the defendant about potential witnesses, including the defendant himself, expects an answer from the defendant directly.

    I think the right answer is to refuse to back down. Nobody wants to go to jail and face bar complaints, but judges are not infallible and it’s, I think, a clear duty to take the professional, personal and financial hit to make sure your client isn’t compelled to answer anything on the record that can harm their case.

    1. SHG Post author

      I’ve had that situation happen, and I’ve responded by saying, “Judge, you’re going to have to lock me up because I am not going to let you speak directly with my client. Sorry, Judge, but your call.” They then give me a firm tongue lashing to save face, and we all go home.

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  5. mirriam

    I frequently think I am going to be held in contempt. And I suck at selling the client. I’m just damned awful at it. The problem is I am not paragon, I am just lawyer. I don’t know what that means to be a paragon. I do know lawyers who make oodles of money by promising the world and then doing things they should not do and having a less desirable outcome for the client (as Bennett says, not a ‘win’) but the client is entitled to pay loads of money to whomever he chooses.

    It’s an interesting thing, this lawyer business.

    1. SHG Post author

      Be careful about conflating two separate things: the amount of money charged may be a product of the level of skill and work a lawyer puts into a case, or false promises and pretenses. I know lawyers who make oodles of money by putting in enormous amounts of time and effort to provide their clients with every possible opportunity. And I know lawyers who don’t.

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