Yesterday, we considered Skelly’s concern that young lawyers didn’t want to grow up to be criminal defense lawyers anymore. It was my view that this would ultimately have little impact. Today, let us consider what I believe to be the most significant threat to the constitutional right to effective representation that we face going forward.
The vast majority of lawyers practicing on the defense side of criminal law live off the largess of the government. Public defenders are wholly supported by the government to provide legal services to those who are unable to afford private counsel. This is the mandate of Gideon in its purest form.
There are also private lawyers who provide alternative legal services to the indigent. While there are a variety of methods by which these lawyers are appointed and paid (in New York, they are called 18b lawyers and federally they are called CJA lawyers), for many these appointments constitute a significant percentage of their practice and income. It’s not that they make a killing off this work, but it pays the bills and keeps them afloat.
As for private lawyers who do not rely on indigent defense work to make ends meet, their numbers are dwindling, as are there incomes. While there are some white collar defense firms making millions off the backs of disgraced CEOs, there aren’t enough of them to go around and it doesn’t do much good for the criminal defense lawyers in the trenches.
Based upon my highly scientific personal observations, the private criminal defense bar is not doing very well. Highly regarded lawyers are having an increasingly difficult time obtaining sufficient business to keep them going. Newer, or less well regarded lawyers, are taking any case that walks in the door (i.e., felonies for $1000) just to make the rent. These lawyers are branching out into more lucrative areas of law, such as personal injury, where the pickings are better. Sure, there are plenty of interesting cases around. Unfortunately, the defendants in these interesting cases can’t afford a lawyer.
Before anyone jumps to the conclusion that my observations are based on the high fees charged by lawyers, let us consider that a $10,000 legal fee at $200 per hour covers only 50 hours. And $200 per hour is piddling compared with civil lawyers charging $1000 per hour, the new going rate for a competent litigator (or Biglaw partner, whichever comes first).
What does this portend? The ongoing existence of a fully independent private criminal defense bar may be in jeopardy. It’s not for lack of interest and desire, but everybody has to eat, and most like nice things as well. The harsh truth is that criminal defense lawyers want to get paid for their efforts, and if they can’t get paid doing criminal defense, then they have to find an alternative.
That leaves the remaining criminal defense lawyers on the public teat. Therein lies the problem. If the corps of lawyers dedicated to the defense of the accused survives financially by the largess of the sovereign, it faces two fundamental problems:
1. The government can decide to pay (or not pay) whatever it likes for criminal defense. It took 17 years for 18b lawyers to get an increase in fees last time. How long will it be again? Moreover, the trend in New York is to move toward a state-wide defender model, and eliminate the use of private lawyers. Any way you look at it, the future is bleak.
2. The government can dictate how the people on its payroll perform their function. Even now, there are “favored” lawyers in most courts that get the plum assignments because the judges know that they can be counted on not to make waves. In other words, the judges are fairly-well assured that the case will end with a guilty plea, nice and tidy, at the lawyer’s urging. While this is not a public defender phenomenon, once the government has the criminal defense bar by the balls, who knows how hard they will squeeze. And even if they don’t squeeze at first, are you comfortable that another Guiliani won’t come along and decide to put an end to the misery? Eventually, somebody will get elected who hates criminal defense enough to pull the plug.
What about Gideon? Unfortunately, the wiggle room between Gideon and reality is large enough to drive the proverbial Mack truck though it. No one is entitled to a perfect trial. No one is entitled to the lawyer of their choice. No one is entitled to a good lawyer, just one who isn’t incompetent. And the standard for incompetence is shockingly low. Note that this has nothing to do with the current quality of indigent representation, or the comparative quality (whether by PDs or 18bs), as they will all be under the same thumb when the time comes.
I’ve watched this trend happening for a few years now. As most criminal defense lawyers have shifted their focus to the government for sustenance (a bird in the hand…), they failed to look ahead. Once there are no meaningful options left, they will owe their souls to the government. It will then be all over. The government will own the criminal defense bar. And that is, in my view, the real threat we face today.
The vast majority of lawyers practicing on the defense side of criminal law live off the largess of the government. Public defenders are wholly supported by the government to provide legal services to those who are unable to afford private counsel. This is the mandate of Gideon in its purest form.
There are also private lawyers who provide alternative legal services to the indigent. While there are a variety of methods by which these lawyers are appointed and paid (in New York, they are called 18b lawyers and federally they are called CJA lawyers), for many these appointments constitute a significant percentage of their practice and income. It’s not that they make a killing off this work, but it pays the bills and keeps them afloat.
As for private lawyers who do not rely on indigent defense work to make ends meet, their numbers are dwindling, as are there incomes. While there are some white collar defense firms making millions off the backs of disgraced CEOs, there aren’t enough of them to go around and it doesn’t do much good for the criminal defense lawyers in the trenches.
Based upon my highly scientific personal observations, the private criminal defense bar is not doing very well. Highly regarded lawyers are having an increasingly difficult time obtaining sufficient business to keep them going. Newer, or less well regarded lawyers, are taking any case that walks in the door (i.e., felonies for $1000) just to make the rent. These lawyers are branching out into more lucrative areas of law, such as personal injury, where the pickings are better. Sure, there are plenty of interesting cases around. Unfortunately, the defendants in these interesting cases can’t afford a lawyer.
Before anyone jumps to the conclusion that my observations are based on the high fees charged by lawyers, let us consider that a $10,000 legal fee at $200 per hour covers only 50 hours. And $200 per hour is piddling compared with civil lawyers charging $1000 per hour, the new going rate for a competent litigator (or Biglaw partner, whichever comes first).
What does this portend? The ongoing existence of a fully independent private criminal defense bar may be in jeopardy. It’s not for lack of interest and desire, but everybody has to eat, and most like nice things as well. The harsh truth is that criminal defense lawyers want to get paid for their efforts, and if they can’t get paid doing criminal defense, then they have to find an alternative.
That leaves the remaining criminal defense lawyers on the public teat. Therein lies the problem. If the corps of lawyers dedicated to the defense of the accused survives financially by the largess of the sovereign, it faces two fundamental problems:
1. The government can decide to pay (or not pay) whatever it likes for criminal defense. It took 17 years for 18b lawyers to get an increase in fees last time. How long will it be again? Moreover, the trend in New York is to move toward a state-wide defender model, and eliminate the use of private lawyers. Any way you look at it, the future is bleak.
2. The government can dictate how the people on its payroll perform their function. Even now, there are “favored” lawyers in most courts that get the plum assignments because the judges know that they can be counted on not to make waves. In other words, the judges are fairly-well assured that the case will end with a guilty plea, nice and tidy, at the lawyer’s urging. While this is not a public defender phenomenon, once the government has the criminal defense bar by the balls, who knows how hard they will squeeze. And even if they don’t squeeze at first, are you comfortable that another Guiliani won’t come along and decide to put an end to the misery? Eventually, somebody will get elected who hates criminal defense enough to pull the plug.
What about Gideon? Unfortunately, the wiggle room between Gideon and reality is large enough to drive the proverbial Mack truck though it. No one is entitled to a perfect trial. No one is entitled to the lawyer of their choice. No one is entitled to a good lawyer, just one who isn’t incompetent. And the standard for incompetence is shockingly low. Note that this has nothing to do with the current quality of indigent representation, or the comparative quality (whether by PDs or 18bs), as they will all be under the same thumb when the time comes.
I’ve watched this trend happening for a few years now. As most criminal defense lawyers have shifted their focus to the government for sustenance (a bird in the hand…), they failed to look ahead. Once there are no meaningful options left, they will owe their souls to the government. It will then be all over. The government will own the criminal defense bar. And that is, in my view, the real threat we face today.
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I left the p.d’s office a couple months ago and ran into the dilemma you describe. The judges love p.d’s because the caseload necessitates a mentality of quick resolution, which almost always means a plea, few motions, and a wish to get along with the prosecutor who you’ll be dealing with tomorrow and thus don’t want to piss off.
But a fellow p.d. who also recently left told me, accurately it seems, that our real competition is the public defenders office. Those who stay there to avoid the risk will almost all leave one day and be sad to find out that the indigency inquiry (“you want a free lawyer or can you afford to hire one?”) means a relatively secure job as a p.d. but a rough life as a private c.d. lawyer should you ever take the plunge.
Believe it or not, our misdemeanor judges actively sought to cap atty fees at $100. they were unsuccessful but since they choose who to appoint they simply implement a defacto version of their proposal and those who bill over $100 aren’t invited back.
You’re right: dependence on the government is dangerous, for people and their lawyers but few people realize this.
Scott,
You write that “These lawyers are branching out into more lucrative areas of law, such as personal injury, where the pickings are better.”
Consider yourself lucky. Here, thanks to tort deform, lawyers are leaving personal injury law in droves and taking criminal cases. Every week we see new faces down at the criminal courthouse — older lawyers who have never practiced criminal law before, or haven’t done so in years.