License to Steal

Ohio’s Jeff Gamso has added his own mustachioed wrinkle in the lawyer confidence game series* that has wended its way from Judge Richard Kopf to Houston’s Mark Bennett to here.

I’ve turned down work, turned away clients and their families because they asked me to do not what was unethical (I’ve turned those folks away, too, but that’s a different issue) but what was impossible. There are things the law does not allow.  There are times when there’s nothing else to do, nothing to be done.  It sucks, but there it is.  And I won’t take your money.  It’s too much like stealing.

Among the many ugly truths of lawyering is that people believe us, which means that if we’re larcenous in heart or mind, the opportunity to steal is there. I’ve quipped many times that if I wasn’t so damned honest, I could be rich. Not only is it easy, but clients wouldn’t have the slightest clue that their lawyer was taking advantage of them. Indeed, they would be more inclined to thank their lawyer for his hard, hard work and imaginative diligence than call out his theft.

That’s because we are fiduciaries. We hold a position of trust. We tell clients things and they have the right to rely on our being truthful, even if it’s contrary to our self-interest. That’s what distinguishes professionals, the willingness to put someone else’s interests above our own.

Ultimately, people who rely on someone to perform a function they are incapable of assessing must decide whether to place their trust in that person. A lawyer can be that person. A lawyer can also destroy trust, whether by neglect, irresponsibility, facial incompetence or, well, the list is too long.

But with a kind smile, a bit of warmth and diligent return of telephone calls, lawyers can easily endear themselves to clients and gain the truth. And then rob the client blind.

And yet.

There was an elderly couple. Their son was in prison, had been for some years, would be for many more years. They’d hired me to do what I could. I did. It didn’t work. They hired me to try something else. I did. It didn’t work. Before long we ran out of process. There are only so many avenues, so many times you can usefully go back into court, so many times you can make variations on the same argument.

We’re done, I told them. I know of nothing else to do. I am very sorry. I wish it were otherwise.

The reason Jeff took on the case was that the parents were elderly, needed the comfort of knowing that they did everything, absolutely everything, they could to help their son, and mostly sought to cling to the hope that these “lovely people” would live to see their “miscreant of a no-longer child” walk free one day.  Jeff decided to take the case, despite knowing that it was not money well-spent, for the parents’ sake.

Is this theft?  Did he take money to tap their false hope, preying upon their unrealistic hope?  The effort wasn’t frivolous, which is unethical under any circumstances, but if the best one can say is that it’s non-frivolous, that’s not much.  The question falls into a gray area, and is answered by whether he told the parents that what they sought of him was a long shot, hardly worth what they would pay.

As long as the client has been truthfully and fully informed, there is the chance, even if remote, of prevailing, and the client still desires to proceed, then the lawyer has fulfilled his duty to the client.  Had Jeff “sold” the parents on the heroic effort, that they had a strong (or even moderate) chance of obtaining their goal when it wasn’t true, it would have been wrong.  And a lawyer taking money on false pretenses is no less theft than anyone else.

And sometimes, a bet on a long-shot comes in.

Unlike most products and services, legal fees are not necessarily proportionate to the relative value of the service.  If a lawyer is retained to try a drug case, and the trial will take a week, the fee will be based on a one-week trial. Whether it’s for a gram or a kilo, with their vastly different sentences should the defendant lose at trial, doesn’t change the amount of time spent on trial.

While many clients can understand why a trial for a kilo carries a certain cost in legal fees, they may find it difficult to understand why a trial for a gram would be so expensive (or vice versa). This is one of the great mysteries of legal fees, “but it’s just a misdemeanor.”  True, but it’s still a week-long trial.  If it’s not worth it, then don’t pay it, but there is no half-speed effort on trial for which a lawyer can charge half-price.

And so when Jeff represented the “miscreant of a no-longer child” in the parents’ last-ditch efforts to give them hope, his time and effort were no less worthy of his fee than if it was the initial trial or appeal, where the greatest opportunity for prevailing existed.  As it happens, Jeff chose to charge the parents a “small fee,” not because his work wasn’t worth his regular fee, but because he’s also a human being.

I felt then and feel now some guilt for agreeing to try and do something I knew could accomplish nothing.  Except keep that couple alive.  Which is not the job of a lawyer.  But is something that, ultimately, I know now and knew then, I had no choice but to do.

It may not be the job of a lawyer, but it’s part of the job of being a human being. The two are not mutually exclusive.  To those who argue vehemently that law is just a business, that it’s just a means to get money, and if that money comes at the expense of a lovely elderly couple who need to keep hope alive that their miscreant of a no-longer child by pursuing a legal course with little chance of success, then you are no Jeff Gamso.

* In the olden days of the blawgosphere, there were regularly discussions and debates among blawgers dealing with fine, nuanced points of law and practice, and it produced some of the best thoughts and discussions around. We don’t do it much anymore, which is a shame.

3 comments on “License to Steal

  1. RKTlaw

    We’ve had a couple lawyers here who have made a nice living on getting hired by the families of people who have appointed lawyers to make a limited appearance for the purposes of a district court bond hearing (all cases start in district court; felonies move to superior court through indictment or finding/waiver of probable cause). Often those families are Hispanic. The chances of getting much bond relief at the district court level on a serious felony is quite small (in a murder or rape, almost non-existent), but it occasionally happens. The lawyer takes the fee, conducts his dog-and-pony show at the district court bond hearing, then moves on to leave the appointed lawyer the job of actually working the case. I assume there is no outright “deceit” in these transactions (i.e. “I promise to get a bond of $xx.xx) but it has always struck me as unethical. In discussions on the practice, the counter to this has been that my position is “patronizing” and that people can spend their money however they see fit.

    1. Jeff Gamso

      Sure they can spend their money how they want.. The issue isn’t about their buying, it’s about our selling. Would that appointed lawyer have done as good a job? Been as likely to get the same result? Was the family told that? Were they told (so that they understood as far as they could) the odds? Were they charged more than the work was really worth?

      The ethics (and morality, which isn’t the same thing) of what we do is about what WE do.

    2. SHG Post author

      Of course, there is no one else in the room to hear the completely truthful and forthright explanation of the utility of bringing in a ringer for bail. While people can spend their money however they see fit, that doesn’t cover fraud in the inducement.

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