Mark Bennett, the Texas Tornado, got his ax gored by some lying lawyer.  Shawn Matlock was complaining about that earlier.  Gideon get all bent out of shape over it.  And I’ve posted about it a few times.  While criminal defense lawyers may quibble over what to call it, or what aspect is the most venal (mostly because criminal defense lawyers just tend to quibble about things more than others), we have all been there and it is, to be clear, a blight on our little corner of the profession.

The problem is lawyers who lie to get a case.  Lawyers making promises, whether it be success or bail or no jail, or even whether it be that the lawyer possesses the skills needed to represent the client.  I know criminal defense lawyers who have practiced for 25 years who have never tried a case.  They will puff their expertise, but within the biz, we know that the lawyer doesn’t have the chops for a fight.  But clients don’t know.

Sometimes lawyers make ridiculous promises.  Sometimes the deception is subtle.  But they’re still lawyers, professionals, theoretically highly-educated men and women who have been granted a license to hold people’s lives in their hands.  There is a sacred trust involved, and these people just don’t give a damn.  Why?

Law was once a profession.  Today it’s a business.  Lawyers need paying clients to feed their family.  They don’t give lawyers a BMW for free, you know.  Aren’t lawyers entitled to live a decent life after they’ve paid off all those student loans?  The truth is that lawyers, like clients, are told a story when they have to decide what to do with the rest of their lives, and believe that if they go to law school, study hard, they will be rewarded with a good income and a happy, comfortable life in a respected profession.  Young men and women are led down the garden path, only to find that its full of thorn bushes surrounded by poison ivy.

As we read about hos Biglaw associates with almost 7 minutes of experience are getting $190k plus a signing bonus, one has to laugh.  This isn’t the world of the criminal defense lawyer.  Whether the lawyer starts out as public defender or prosecutor, the only way out of the institution and into private practice in the criminal law world is to become a defense lawyer.  There’s no such thing as private prosecutors.

So there’s some kid who has had enough of a lousy salary, unbearable caseload and ridiculous hours.  The time has come to bid ado to your buddies, and go out into the wonderful world of private practice.  The “grass is always greener” delusion has clouded your judgment, and you see all those half-competent lawyers making big bucks, no one to boss them around and doing as they please.  You want to be one of them, and you know you can score big because you are so much better a lawyer than they are.  And all the judges love you and you’re brilliant.  Go for it!

So you rent a room, get a telephone number, buy a computer, order some letterhead and hang out a shingle.  And out of nowhere, clients start calling with heavy case and showing up at your door in need of you, right?  Each one of them is carrying a bulging suitcase, right?  Well, not exactly. 

The reality fails to meet the dream.  Six months in and you have yet to get a single retained client.  You’ve told all your friends, neighbors, family to send over anyone who’s been arrested, but it just doesn’t happen.  If it wasn’t for indigent defense work, you would have no work at all.  The bills are coming in and you’re barely making enough to pay the rent.  What the hell happened?

This is not an unusual scenario today.  Criminal defense lawyers never know where their next case is coming from, or whether there will be a next case.  And if a client doesn’t walk in the door, then you have no clients.  Whether you’re the best or the worst lawyer doesn’t seem to matter; you can’t defend if the defendant’s don’t come.  And you can’t make a living without them.

Finally, the call comes in from Joe Defendant’s baby mama.  She comes in for the appointment and tells you what little she knows about the case.  More importantly, she tells you what she wants you to tell her; the words that will make her take the money out of the paper bag she clutches and give it to you.  The rents due.  You darling wife, who deserves only the finest things in life, has lost her taste for hamburger helper.  And before you know it, the words slip out of you mouth.  “Oh yes, Baby Mama, of course I can get him out on bail. No problem.”  “Sure, I beaten cases just like your a dozen times. No problem.” 

Of course, seeing the future is not one of the skills you possess.  You don’t know if you can get him out or win his case.  No one knows whether he or she can do it.  But you said it.  You made the promise.  And she gave you the money.  You have just taken one giant step onto the slippery slope of being a lying lawyer.  And it was easy.  And you made money.  And you got the case.  And if it doesn’t happen, you can certainly make up some excuse about how it wasn’t your fault.  And they’ll believe you and you will still have the money.

It’s all about business.  And money.  And the promise that your mother made you when you decided to go to law school and believed, like the child you were, that the law owed you a good, comfortable living.  And about the disappointment when you learned that you’d been had.  So now you’re going to scam the client, just like you were scammed, because you deserve to live well as a lawyer.  Mother promised.

There are two abiding problems in criminal law that we rarely discuss, no less confront.  First, there are just too many lawyers.  If you split the pie too many ways, nobody gets a decent slice.  Second, there are too many lawyers who just aren’t very good.  But it’s almost impossible for a client to know whether a lawyer is great or incompetent.  Bennett will disagree with me about this, but I subscribe to “believing is seeing,” not the other way around.  It pains me that this is true.

So the only thing that inhibits a lawyer from telling a potential client what they want to hear is his own personal integrity.  For most of us, that’s reason enough.  For some it’s not.  We are all only as viable as a business as the next case that walks in the door, but what we’ll do to score the case is another matter. 

So when you hang out that shingle, you need to decide whether you are going to be the lying lawyer or the honest lawyer.  Chance are that if you lie through your teeth, make promises you can’t keep or give guarantees that are impossible, no one will know except you and your potential client.  You will have an advantage over a lawyer like me, because you’re going to tell the client what he or she wants to hear and I’m not.  But I’ve made my choice.  When you hang out your shingle, you have to make yours.