I don’t usually read John Wesley Hall’s blog (and he isn’t even on my blogroll, though I’m not on his either).  But Bennett, a good friend of Austin’s Best Criminal Law Blawger, Jamie Spencer,  linked to one of  Hall’s posts and I decided to check it out.  I’m glad I did.

The title of the post is an eye-catcher,

And you think the economy sucks? Ask any criminal defense lawyer

This is counterintuitive for most of the criminal defense bar.  When things get tough, people commit crimes.  After all, jobs grow scarce.  Good jobs non-existent.  People need to keep busy.  People need to feed the kids.  People need to look like their favorite pop music icon on TV.  When in doubt, steal it.

But things haven’t quite worked that way for a while.  I saw this coming for a while.  One of the particular leading indicators was a criminal bar association dinner about 5 years ago, when I scanned the room and realized that I was probably the youngest guy there.  I’m older than I look, by the way.

It came to me that the young guys either were fleeing criminal defense for greener pastures, or weren’t making the money to pay for the overpriced bar association dinners where they gave awards to the same half dozen old time “mandarins” year after year, even though they hadn’t done anything award-worthy in decades.

The old-timers are honored because they are supposed to be a draw for the new kids, who can touch the hands of legends and feel like they are one of the gang.  But where were they?

I was on trial shortly after that, chatting with the judge about how busy things were around the courthouse.  He pointed out the indictment numbers at the end of the year, down about 40% from a few years before.  Not just the numbers were down, but the types of cases had changed as well.  The big drug cases were few and far between.  The crimes were pedestrian, overcharged and decidedly unsexy. 

Poor people doing low-rent crime and getting indicted for cases that would have barely been worth a misdemeanor a few years earlier.  The District Attorney’s office still had the same number of people, and there were more cops on the street than ever before.  They had to do something, so spitting in school zone became endangering the welfare of a minor in the first degree.

The first question people ask when they find out you’re a criminal defense lawyer is whether you’re defending anybody important.  Of course, you respond that everyone you defend is important, but that’s only because you know they asked the wrong question.  They want to know whether you have any cool cases that they read about in the paper.  It’s like being a celebrity, at least for a minute or two.

But the high profile cases, while making us far sexier than we deserve to be, aren’t the cases that keep practices thriving.  It’s the bread and butter cases that pay the bills.  The high profile ones are actually a huge drain on a practice, but that’s a post for another day. 

The bread and butter cases generally require the confluence of two things:  Clients who are interested in obtaining the best possible defense, and clients who have the wherewithal to retain private counsel.  Both of these factors have changed markedly over the years. 

The years of snitching have altered the vision of many defendants as to the worth of fighting the charges.  The chances of winning seemed dim, and it was so much easier to just rat out your best friend.  This also made the relative value of using scare resources for legal fees decidedly less worthwhile.  Why pay for the cow when you can just accuse it of a crime?

There has also been a shift away from good quality criminals.  These were the guys who engaged in crime in a relatively peaceful and orderly fashion.  Their purpose was to make money, not waves.  They saved their gains and considered lawyers a cost of doing business.  They never whined about an arrest, but realized it was an inherent risk and dealt with it.  But as business became more difficult, and risks increased, retirement began to look like a terrific option.  Many of the business people, the ones who survived the rat wars, decided to pack it up.

In contrast, the new people who filled the void lacked their business acumen, and watched Tony Montana too many times.  They spent their cash on bling and fun, and when they were taken down a month or two later, had nothing to show for it.  These fellows did not have good client potential.

Today, there are still plenty of cases going through the system, but not enough paying clients to go around.  Some of us get enough to keep us busy, though it’s nowhere near the days when we had to turn people away because we just couldn’t carry another case. 

Others are suffering, and suffering badly.  Some of these are good lawyers, if not great lawyers.  But for whatever reason, their phones aren’t ringing and they sit alone in their fancy office without much to do.  This can’t go on.  The fancy office costs fancy money.  If it’s not coming in, it can’t go out.  Something has to give.  They aren’t interested in going to back to the bad old days of handling indigent defendants for whatever the government chooses to pay.  They aren’t willing to demean themselves by doing thousand dollar felonies, like the kids who are just starting out and will take any case that comes in the door.  But they are stuck.

There will be a major fleshing out of the criminal defense business over the coming year or two, not by choice but by necessity.  Where everyone will go remains a mystery, and whether the strong, meaning the skilled, will survive is a mystery too.  Some of the strongest are doing surprisingly poorly these days, because clients don’t have a clue whether their lawyer is a great one or a mutt.  They hire who they like, and who will take whatever money they have in their pocket.  Neither is a good indicator of legal talent.

My greatest fear is that this market for criminal defense talent will eviscerate the ranks of the better lawyers, leaving only a couple top names and a glut of bottom feeders living off the government dole.  If you think it’s hard to get justice now, just wait until that happens.