The Worst Time to be a Criminal Defense Lawyer?

Susan Cartier Leibel asks whether this is the worst time to be a lawyer.  One of the responses she received as “not if you work for Biglaw.”  I take it that the response meant that Biglaw, with salaries about to hit $190,000 plus bonus for first year associates, life isn’t that bad.

On the other hand,  Lat posted about how 10 partners were canned at Jenner & Block.  Now, I understand that “partners” at Biglaw aren’t always “partners” as the rest of the world thinks, but these weren’t first year associates.  These were people who thought they had a secure home for the long run who suddenly found out that their services weren’t needed anymore.  What do you tell the guy at the Mercedes dealership?

Susan’s view was that solos never get a pink slip, so Biglaw can’t pull the rug out from under you.  True enough.  She also rails against the entrenched attitude of new lawyers that if you don’t get a Biglaw position, you’re a failure.  This, obviously, depends on how you define failure.  Or how you define lawyer, for that matter, since many would argue that despite the big salary, associates at Biglaw are not exactly lawyers.

For the criminal defense lawyer, this argument is largely irrelevant.  Other than Joel Cohen at Strook, I can’t think of any other real criminal defense lawyers who work in Biglaw. (Hey Joel, I should get a beer for the plug, if you know what I mean.)  There are probably a few others, but I just can’t think of them at the moment.

Unfortunately, that’s not the end of our story.  I’ve lived through a few recessions in my time.  For the most part, criminal defense lawyers were immune from these market forces because crime was immune.  If anything, crime increases when the economy tanks.  People seek “alternate” sources of income.  Some of these sources are not legitimate, if you catch my drift.

This time, however, thing are going to be different.  In the past, there was money on the street in crime even when the legitimate economy dropped like a stone.  Narcotics were largely responsible for this situation, with defendants flush with drug money, still inclined to defend and propping up the criminal defense bar while others were going hungry. 

Times have changed.  The streets of New York are relatively quiet and poor.  We no longer have the groups of enterprising drug dealers who put together lucrative businesses like mini-IBMs, organized and profitable with a vision toward the future.  Sure, there are still drugs on the street, but the sellers lack the organization (and too often the intelligence) of the old timers, and tend to spend every dime they make on some piece of shiny crap.  When time comes to defend themselves, their pockets are empty.  Or at least not full enough to do better than the bottom rung of criminal defense lawyers.

The shift in criminal defense has been coming for a few years in New York.  I’ve written about this before.  But now it’s exacerbated by the economic downturn.  Commuting into New York City has just skyrocketed.  Office rents remains high.  The variable costs of services continue to climb.  The only thing that isn’t going up is the fees paid to lawyers or the number of clients ready, willing and able to retain the services of a criminal defense lawyer. 

When potential clients sheepishly look you in the eye and tell you, “I can’t afford that much,” what do you do?  We’re not in the business of telling clients to go away.  But we have rent to pay, and when the fee that clients are willing to pay won’t cover the rent, there’s a problem. 

“But it’s better to keep revenue coming in than not, isn’t it?”  Yes and no.  If fees are too low, then you have to increase volume to make up the shortfall.  If you increase volume, you decrease quality of representation.  It takes time to do this job right.  Time is the one commodity that doesn’t change.  Stuff more people into the available time and something has to give.  You can make money by taking on more cases at lower fees, but you can’t deliver the same level of representation. 

So is this the worst time to be a criminal defense lawyer?  If its only about money, then maybe not.  Take on all comers for whatever they can afford to pay, and you can still earn a pretty decent living in this business.  If it’s about being delivering the best possible representation, then this isn’t a great time to be a criminal defense lawyer.  Or perhaps a lawyer at all.