Every profession and occupation has its share of liars and incompetents.  We may not like to admit it, or publicly acknowledge it, but we know it’s true.  And this applies to criminal defense lawyers.

Gideon, at A Public Defender, called them out today.  I don’t know what happened to him in court yesterday to push him to the point that he wrote what he wrote, but I’m glad he did.  It’s time that we had a real discussion about the fact that this little area of the law has its share of liars.  More than its fair share, I might add.

The false promises part really pisses me off. You know there are attorneys who make them but then when the client gets screwed, will swear up and down that they would never, ever say something like that. Bullshit. 

Well, yeah, bullshit.  It happens.  It happens regularly.  And begs the question why does it happen, and how do they get away with it.

The why is easy.  Many of our clients in criminal defense are poorly educated; some aren’t too bright.  It doesn’t make them bad people, but any real discussion has to begin with a foundation in reality.  The clients (and their families) have some difficulty grasping concepts.  They are much better with concrete assertions, and have no tolerance for ambiguity.  These are the ones who, after thoroughly explaining at an initial interview that we have no idea what the evidence against them will be, and how the variables at trial make it impossible to predict an outcome, then ask:  “But what are we gonna win?”

There are, more often then you would believe, clients who demand a guarantee that, in exchange for the legal fee, they will walk.  It reflects two inherent problems (and possible a dozen tangential problems).  First, they believe that a lawyer has the ability to make a guarantee.  Second, they perceive the lawyer to be on the other side (even though this may not be apparent at first), and thus the person with whom they should negotiate.  They don’t see the lawyers time or skills as worthy of compensation.  They see only outcome. 

A good lawyer understands that outcome is always what the deal is about, but similarly understands that the lawyer and client share the same interest in achieving a positive outcome, though the path to achieving it may be different.  To the good lawyer, outcome is the product of hard work, strategy, perseverance and a healthy dose of luck.  To the client, it’s what he pays for.  For the lawyer, it is the difference between effectiveness and efficiency.  (I would explain this further, but I would be giving up one of my best secrets and so will save it for another day.)

Also posted today is Mark Bennett’s How to Choose a Criminal Defense Lawyer.  Mark takes issue with my view that a personal interview of a lawyer by a client has its problems, as clients tend to mistake “likability” for competence and pick the lawyer who tells the client what he wants to hear.  Mark contends that

I have great confidence in the ability of people working together to tell who is shooting straight with them. While one person (especially one frightened person facing criminal charges) may get snookered by a snake-oil selling businessman, two people working together are much less likely to make the same mistake.

I don’t, not because of a cynical view of people but because of experience.  It happens constantly.  Even after the client crashes and burns, the snake-oil lawyer can explain away the failure by adding new layers of deception, so that people sitting in prison for substantial chunks of their lives STILL think their lawyer was a good guy.  We find out about this when some other person, wife or mother for example, comes to a new lawyer only to learn that the snake-oil lawyer never made a suppression motion, or demonstrated flagrant neglect or incompetence in some other way.  How many of these defendants are sitting there thinking, “Well, at least I had a good lawyer do everything he could for me” when in reality he got sold out on day 1.

So now the second question, how do they get away with it?  This is a multi-part answer.  Part 1 is that clients who are susceptible to being lied to in the first place are just as susceptible to being lied to on the back end.  The lawyers make up excuses for their failure and the client buys it.  But this is only to be expected as the completion of the circle of deception.  The better question is why does the rest of the profession, including judges, sit there with their mouths shut and allow this to happen, day after day after day.

Perhaps other lawyers don’t know about this?  This may occasionally be true, but we absolutely know a great deal of it.  If a lawyer say he hasn’t seen incompetence and deception, you know which side of the fence he falls on.  The sad and pathetic truth is that we, like most professions, don’t police ourselves well enough.  We fear that we might become pariahs amongst our own if we start playing Torquemada.  And are we so pure that we can criticize others?  Isn’t it the responsibility of the courts and bar to weed out the incompetent and deceptive?

All good questions, but the plain old truth is that it hasn’t happened the way it should and our ranks are replete with lawyers who should not be.  It’s wrong for clients.  It’s wrong for honest and competent lawyers. It’s wrong for society.  And yet we cannot bring ourselves to do anything about it.  Except Gideon, who opened up this Pandora’s box.  Thanks, Gideon.