Do we deserve to get beaten?  Have we gotten out of control and lost sight of who we are and what we do?  Carolyn, who comments here, thinks so.  But Mark Bennett disagrees in his comment to the same post.

Carolyn’s point is that criminal defense lawyers charge too much for the average person, who lives pay check to pay check.  While high legal fees may be fine for the drug dealer, they price good lawyers out of the market for the regular guy. 

Before criminal defense lawyers respond with knee-jerk defensiveness, explaining what it takes to become a lawyer, to run a law office, to put in the time necessary to provide a top defense (aside from the face time that clients see when we’re in front of the judge), let us consider the implications of Carolyn’s point.

We are not talking about indigent defense, or the defense of the wealthy.  This is about regular people who get mixed up in the system.  Sometimes they may be innocent.  Other times guilty.  But we are not talking about people who are professionals, or earn big bucks off crime.  These are the assaults, the non-sale weight drug possessions, the DWIs and endangering offenses.  There was no financial gain involved.  More often than not, it is evidence of exceptionally poor judgment, if there was any judgment involved at all. 

Are these ordinary people priced out of the market for top legal talent?  The simple answer is, they are.  Just like they can’t afford the diamond necklace in Winston’s window, they can’t afford the best lawyers money can buy.  Similarly, they can’t afford all the bells and whistles that may go along with a top flight defense, from investigators, polygraphs, reconstructions, engineering drawings, jury consultants, mitigation specialists, doctors, audio experts and whatever else may apply.  Clients are likely unaware of the full scope of litigation support services available, but they all cost money.

It’s not clear from what Carolyn has to say whether she feels entitled to everything that a Martha Stewart can afford, or whether she’s talking about a basic “K car” with a good lawyer at the wheel.  She may not realize that the tools available are part of the deal, and even a great lawyer is aided by these support services.  But a great lawyer is still going to provide a far better defense than a yeoman lawyer, even if he has to go into battle a few bullets short of a full magazine. 

My sense is that Carolyn’s vision is some sliding scale variation on Gideon, where it fine for lawyers to suck the blood out of the rich so that they can provide low cost representation to the working stiff.  It’s an entitlement thing, where the need for legal services coupled with the limits of their financial comfort dictate how much a good lawyer should charge.  It’s very much like doctors, but without insurance to cover the gap.

Now I bring Mark into this discussion because of his comment that he avoids the problem with collecting the trial fee by charging it up front as “trial insurance.”  Mark’s design, clearly, avoids the problem of being on the eve of trial when a rift develops between lawyer and client that undermines the relationship.  Plus, the lawyer gets paid. 

The flip side of Mark’s position is that it spreads the risk of trial across clients, by charging all of them more than they would pay if they do not go to trial so that the ones who do will not have to pay extra.  This, of course, is the basic idea of insurance, spreading the risk.  But would Carolyn be willing to pay more up front to pay less if she ends up going to trial, particularly when the vast majority of cases do not go to trial?  Or would she argue that she should pay no more than the minimum based upon the particular work involved in her case, and that others who go to trial should pay their own freight?  My bet is that Carolyn would not buy the insurance.

To be clear, I reject the basic premise that my fee structure, and hence my income, should somehow correlate to the financial circumstances of the regular guy.  It is not my fault that Carolyn lives hand to mouth, and that is not the measure of why I charge for my services.  Similarly, it’s not my fault that an ordinary person gets arrested, so I do not accept the burden of their unfortunate circumstances.  My job is to defend them from someone else’s accusations, not to be their surrogate and share in the misery.

There is a rather large group of lawyers available to the working guy, who will never let a client walk away if they have a few bucks in their pocket.  But these are the lawyers who prey on the misery of ordinary people, planning how quickly they can plead them out at the first meeting while telling the client how they guarantee a win.  Are the vultures of the criminal bar all that is left for regular people?

Given the option, I would take a indigent defender over a vulture (or V-6 as Mark calls them) any day.  The former may be less experienced, but does it from the heart with zeal.  The latter is in it for the quick buck, without any concern for the client after his pockets have been emptied.  But will Carolyn qualify for a legal aid lawyer?  Probably not, and hence she is left to the vultures like road kill on the highway of justice.

There really isn’t any good option for the regular people of the world.  Deplete every penny that they and everyone who cares about them may have, or do without.  The young but caring criminal defense lawyer offers the best chance of hope, but they aren’t easy to find for the regular person.  And what, you ask, about an old timer like me taking a big financial hit in order to represent Carolyn? 

I do.  Sometimes.  There are times that I will take a significantly reduced fee, or go without a fee.  Because I’m just a wonderful humanitarian and an all-around great guy.  But there are times I won’t, and the times I won’t far exceed the times I will.  This is true for two basic reasons:  First, this is how I earn my living, and I am entitled to earn as good a living as my skills, work ethic and reputation allow.  Second, I have a family, and they are entitled to enjoy whatever largesse I can provide.

So Carolyn, while I sympathize with you, I will not sacrifice for you.  But if you can afford to retain me and I am willing to take your case, I assure you that I will give you your money’s worth.