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.
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.
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.
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.