Gideon  posted a rant about defendants belief that money buys “justice”, justice being defined as a better plea offer.  This went down the path of attacking the private criminal defense bar as being unable to get a better offer than the public defender, and therefore being a waste of money.  While the smell of the post was that Gid had a particular situation in mind, it crossed a lot of bridges.

I’m disturbed by Gid’s post.  I’ve taken to task private criminal defense lawyers who market themselves by disparaging public defenders.  It’s no better for a public defender to do the same to the private bar.  It’s also untrue in many circumstances.  The problem is that it is indeed true under some circumstances, a problem that needs to be conceded and remedied.

Let’s start at the beginning:  Criminal defendants do not pay for outcome.  They pay for service.  They pay for the work, the time, the effort, the experience that a lawyer puts into his case.  No lawyer, nor any amount of money, guarantees a result.  Anyone who tells you otherwise is a liar.

That said, the better the lawyer, the more time and effort he can put into your case, and the availability of money to pay for the plethora of support services available, will substantially increase the likelihood of a favorable result.  Anyone who tells you otherwise is a liar.

Gideon fails to distinguish between the quality and quantity law practice.  His words ring true for many in the private criminal defense bar.  They deceive people into becoming clients by making false promises that they can do better.  For some people, it falls under the belief that money buys better “justice”.  For others, it’s because law is a big game, and they are buying influence, connections, insider-type stuff that fits their vision that this is all a big game and it’s not what you know but who you know that keeps you out of jail.

This is a scam on the public, perpetrated by lawyers who want your money.  It is the product of too many lawyers, not enough money, and the transition of law from a profession to a business.  Sadly, this is only one of many such scams designed to gain business and separate client from cash.  It prays on clients’ cynical beliefs.  Clients too often want to be lied to.  They want answers they know to be false, because they want to believe they can buy their way out of their problems.  These lawyers are only too happy to fill the demand.

There have been numerous times in my career when I have lost a client to another lawyer because I refuse to lie to them.  It angers me to lose clients this way, though not enough to join the ranks of liars.  I’ve often said that I could be rich, if only I was willing to be dishonest.  I’m not.  Perhaps that makes me a business fool, since other lawyers have taken very substantial sums of money from clients to whom I refused to lie.  There are many business people I know who believe that my refusal to “play the game” is naive.  They believe that life is a scam, and getting the business at any cost is the way to win the game of life.

Perhaps I’m wrong, but I have made the decision to maintain my integrity at the expense of business.  My clients appreciate my position most of the time, though they tell me sometimes that they would prefer that I tell them what they want to hear even when it isn’t the truth.  But there’s no “honesty switch” on my back that can be turned on and off whenever the client would like. 

Gideon relates statements from clients that make him laugh:

Which is why I chuckle when defendants say things like “why did I pay that guy so much? I could have gotten the same result with a public defender” or “man, he didn’t do nothin’. The offer stayed the same”.

I hear these statements as well.  I’ve heard them for 25 years, but they don’t make me chuckle.  These types of statements reflect one of two things:  Either the lawyer misrepresented what he can produce for the client and then failed to do so, or the lawyer did everything he could but was unable to accomplish the outcome the defendant sought. 

The first lawyer is the one that angers Gideon, and rightfully so.  This is the lawyer who denigrates the public defender and makes promises he cannot keep.  This is the lawyer who lies.

The second lawyer is the one that has represented the defendant skillfully, honestly and with zeal, but was still unable to achieve the desired outcome.  This happens.  Even if the lawyer’s skill and effort raise the likelihood of prevailing to 99%, that means 1% will not prevail.  But the lawyer has not done “nothin”.  He did everything he could, but that does not guarantee the desired result.

Consider Martha Stewart.  Consider Dennis Kozlowski.  Millions of dollars were spent on their defense, to no avail.  I’ve joked that I could have lost their case for half the fee, but the fact is that they used their money, power, influence to prevail.  Still, they lost.  Even John Gotti was finally convicted.  If they couldn’t find the “trick”, the guarantee, what makes others think that they can?

I suspect that Gideon’s objective was to address the class of criminal defense lawyer that uses deception to get cases, that puts down the public defender to get money, that guarantees that they can get them a better plea offer in exchange for cash.  If so, then I agree with Gid wholeheartedly. 

Not only are do they anger Gideon, but they anger me as well.  I work awfully hard for my clients, and earn my fees.  And still I will lose clients because of my refusal to tell them what they want to hear when someone else is only too happy to do so.  It has become a dirty business.