In Praise of Honesty: A Misguided Grasp of Criminal Defense

While much of the discussion surrounding the parody video by Daniel Muessig was about how awesome/awful the video was, a snarky secondary issue arose from its content: Finally, someone understands what criminals want from their lawyer.

Mark Draughn, the WindyPundit, left this comment:

I do have to admire how unapologetic the ad is. I once offended a criminal defense lawyer when I offhandedly described his job as something like “Helping criminals get away with crimes.”  I understand why he objected to that characterization, because that’s not quite what he’s selling, but if I were the client (and I more or less did the crime), then that’s pretty much what I’d be looking to buy.

At Walter Olson’s Overlawyered, a commenter named David Smith wrote:

I . . . . DON’T . . . BELIEVE . . . IT!!!

An honest lawyer!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

And marketer Vin Messina was moved to ask:

What I want to know is if lawyer marketing has an obligation as much to the profession as it does to the purest purpose of what advertising and marketing is for.

All of this raises a very real question, which is something good parody ought to do.  We can wrap ourselves in the glorious duty of defending the rights of all, protecting the Constitution, but is that just a subterfuge for what we really do?  Is that what the accused hire us to do?  Is that what criminals want us to do?

There is a venn diagram developed by Matt Homan showing the difference between how lawyers present themselves to clients versus what clients really want to know about lawyers.

Lawyer Bio Website Diagram 640x443 3 Things Your Law Firm Website Should Have

While the diagram is a bit generic, its point, like the snarky commentary about the video, is that there is a significant gap between our perception of what matters and the perception of our potential clientele.   We can point to the Code of Professional Responsibility as an inhibiting factor, and explain why the rules, most notably the prohibition against deception, preclude our giving clients what they want to hear, but to what end?

The fact is that people inclined to commit crimes don’t want to hear sweet lawyer talk about rights and integrity. They tend to be very practical people. They want their lawyer to get them off, and they really don’t care much about how they do it. Bribe the judge? Cool. Bury evidence? No problem. Teach them the best lie to tell on the witness stand? Perfect. Use my friendship with the other side to get a special favor? Definitely. They want to win the case and get back to work.

And if we were to market to this group, we would offer to sell them what they want to buy. That’s how marketing works, as Vin says, for its purest purpose.

Over 30 years, I’ve come to learn quite a bit about how to commit crimes and get away with it.  Over that time, more than a few people have asked me if I would be willing to impart that knowledge, for a very attractive fee.  If a lawyer has a bit of larceny in his heart, there is a great deal of money to be made.

If money is the point, then why not market toward the true interests of the clients?  And lest there be any doubt, good, hardworking criminals are great clients. They’re the ones with money to pay lawyers and who see us as a cost of doing business.  In other words, they not only can pay, but they will pay. They are the ones who appreciate what we do.

And yet we don’t.  The line may not be visible to everyone, may not be in our financial best interest and may, in fact, be contrary to good business judgment, but the single most important thing criminal defense lawyers possess is their integrity, which keeps them on the lawful side of the line rather than rushing to hug our clients and become a part of whatever world they belong to.  We are criminal defense lawyers. We are not criminals. We defend people accused of crimes. We do not facilitate crimes. We support our clients’ defense. We do not support our clients’ crimes.

So no, the Muessig parody video is not “honest,” except if one is having some lulz at the cynical view of criminal defense lawyers.  When a longtime prosecutor left his office and decided to come to the dark side, he asked me to have a drink with him and discuss what we really did.  He believed that all the righteous pontificating in court concealed our playing Fagan back in the office. He thought we were this caricature that he had been fighting against for more than a decade.

When I explained that it wasn’t true, he looked crestfallen.  There was something cool and sexy about being an outlaw, in his mind, and he was ready to shed his white shirt for wild stripes, sell his inside information and become consigliore to some crime syndicate.  The reality didn’t come anywhere near his fantasy.

There are lawyers who play fast and loose, and they may get some good business for as long as it lasts. But they face two major obstacles. First, when the lawyer crosses the line, he becomes the criminal, and the system tends not to be kind to dirty lawyers. Second, as much as clients think they want their lawyers to play dirty, they also want to be able to trust their lawyer. Once a lawyer proves himself untrustworthy, the lawyer becomes just as much a potential liability as the guy trying to take over a dealer’s street corner.  Liabilities get eliminated.

These aren’t issues for lawyers with integrity. But then, we can’t market ourselves as criminals or criminal facilitators, because we’re not, and that would be deceptive.  Instead, we make do with less effective marketing and a much better night’s sleep. We can be proud of what we do, and how we do it, even if it’s not exactly what potential clients may want from us.

17 comments on “In Praise of Honesty: A Misguided Grasp of Criminal Defense

  1. Pingback: Most outrageous video lawyer ad ever? - Overlawyered

  2. Brett Middleton

    Didn’t the parody pretty much cover the right side of the Venn diagram? Dan will take your calls. Dan will visit you in jail. Dan’s clients approve of him: Thanks, Dan! Some of these are even things that you’ve stressed in your blog posts on serving clients well. Except for the connotations that put Dan on the “criminal facilitator” side of the line, the ad really seems to hit the spot.

      1. Brett Middleton

        Is it really inconceivable that the awesome bad stuff could be replaced by equally-awesome good stuff that would result in a great client-oriented ad that stays on the right side of the line? Is real professionalism boring by definition? After all, there are lots of awesome good things that also have awesome parodies: *Lord of the Rings* vs. *Bored of the Rings*, *Jonny Quest* (original, of course) vs. *Toby Danger*, or real-life SHG lawyering vs. Harvey Birdman.

  3. John Barleycorn

    Regardless of what guild it is I think it is often easier for folks outside the guild to enjoy swallowing the paradox in parody when it is present.

    Which I think is the entire point of his commercial and as an added bonus he gets to poke the outside perceptions of his guild as well.

    And what’s not to like about poking a guild?

    He is the criminals, “criminal lawyer” after all.

    I think his guild taking offense at the possibility of their clients and themselves being negatively effected by association somehow discounts the citizens of Pittsburg’s intelligence.

    As for Daniel and his clients….well you can’t always get what you want but if you try sometimes you just might find you get what you need (or deserve).

    Life is not fair but it is funny.

      1. John Barleycorn

        Hey now. You wouldn’t want to start sounding like a prosecutor talking to his friends at lunch about how intelligent his ideal juror would be now would you?

        If you start letting your side within the guild get to cynical the entire system could cantilever into nothing but folly with the only humor being vain attempts at dark comedy.

  4. Bill

    On the right side, I think he forgot the “My lawyer got ______ off”, “my lawyer golfs with the prosecutor/police chief/judge” or ‘everyone in town knows he’s best’. I’ve heard “He charges $x.00/ hr” cited a couple of times too – although they usually all go together

    1. Brett Middleton

      “Low APR financing available for qualified clients” would certainly stir some interest.

  5. Allen

    I saw the ad. I laughed at it, especially the Jewish part at the end. It was like the wonderfully cynical and corrupt lawyer Saul in Breaking Bad–probably inspired by it, I’d guess. I’m an absolute sucker for any law drama, serious or otherwise (though, I have up on Law & Order after season 6 or so).

    It was the general comments about it, though, that were repulsive. Never mind the people that said he was the rare honest lawyer. It was people that said that naturally, no one ever believes a defendant is really innocent, and everyone knows this including the defense lawyer, and that getting an actual innocent defendant is a defense lawyer’s worst nightmare.

    Such a complete trust in the state’s accusations is historically a very modern phenomenon, compared to grand jury indictments and petit jury convictions past a half century ago. Even most self-professed libertarians suffer from it, at least when it comes to accusations of property crimes.

    Still, it was great viral ad. I’d like to see a cage match with this guy with his criminal minions, vs that superbowl lawyer with the sledgehammer.

    1. SHG Post author

      That’s the right attitude. The problem is that too many non-lawyers don’t just see the parody, but believe there’s a lot of truth in there because it confirms their darkest suspicions. As long as they can enjoy the lulz without thinking, “hey, this is what really happens,” it’s fine.

      But watch out as others try to out-viral and out-lulz these videos, and things start to get far worse and far uglier, and feed the stupid enough to make people believe that with enough smoke, there has to be fire.

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  7. Thomas R. Griffith

    Sir, now this is a topic worthy of blogging about (not that the others aren’t) since it seems to have been held hostage for ever. And, when it is discussed it’s either misguided or mangled with deception and excuses. Thanks for clearing it up. You didn’t ask, but if you’ll allow the following to take up space it’s hoped it ‘ll help at least one person on the planet. As you know by now, I either ask Qs’ or seek preventative solutions.

    With law being rightfully broken down into categories it allows the professional to carve out or join a niche in order to: claim he / she specializes in a particular area, making it easy for the customer to turn to or click on the correct page or link. Regarding the customers seated on the ‘criminal’ side of the court room – with: one type being 100% Guilty as charged & one being 100% Not guilty, wouldn’t it be much easier on everyone for CDLs to pick a type and stick with it. One getting the full meal deal contractual agreement: *limited jail visits, *no investigation to be performed, *no pre-trial motions filed, *invoice paid in full prior to voir dire hmm, I mean plea bargain. The other receiving: *timely jail / office visits, *a private investigator assigned, *assurance that the jury will be allowed to stay on the job till verdict, *updates on pre-trial Motions, *PIF and / or payment plan, etc…

    Speaking (constantly) as a victim of the rigged system and a former client of a fake CDL that advertised his non-existent criminal expertise via word of mouth, I tend to advocate for the criminal justice system reformation movement to include: lawyers in the mix, since they are the first perceived friendly face, both types contact & see. The problem arises when everyone is assumed to be a criminal just because they are in jail, wearing a jump suit and sporting cuffs, making for another assumption that those advertising as CDLs are nothing more than defenders of criminals. Real CDLs (both types) could fix this overnight, causing Google, Bing and Yellow Pages to restructure their formats . Change is hard but confusion comedy is a mofo. Thanks.

    1. SHG Post author

      You already know the answer. The real ones couldn’t care less if a client is guilty, innocent or somewhere in between. As I’ve said before, we fight to win because that’s what we do. No excuses or explanation. That’s what we do.

      1. Patrick Maupin

        And, of course, all the criminals are going to want to be represented by the guy who “everybody knows” represents the non-criminals, anyway, on the off-chance that they might be mistaken for innocent.

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