The other day, Mike Cernovich asked a very serious question that bears some equally serious thought: 

How will this credit crisis affect criminal defense law?

As you know, most people charged with a crime do not have large piles of money sitting around to pay a lawyer with. It’s not uncommon for clients to take a loan out against their homes.

With property values being depressed, many people will not have any equity in their homes to borrow against.

As you also know, when economic times are down, crime is up.

What effect, if any, do you think the current credit crisis is going to have on criminal defense? Will people be able to afford lawyers? How?

How many people will slip through the cracks. The people who make too much money to get a public defender, but now who have zero equity to borrow against….

Thoughts?

I gave an off-the-cuff response at the time, but in retrospect, think that there is a lot more to be considered.  The problem, after further deliberation, is that the criminal defense bar is best conceived as a Chinese menu.

Column A: Practice Type

Public Defender
Indigent Defender (18b)
Indigent Defender (CJA)
Private (lower end, state)
Private (higher end, state)
Private (federal)

Column B: Area of Practice

Rural
Suburban
Urban

Column C:  Region of Practice

Pick ’em

Column D: Nature of Offense

DUI/DWI
Street Crime (misdemeanor, non-violent)
Street Crime (misdemeanor, violent)
Street Crime (felony)
Drugs (misdemeanor)
Drugs (felony)
Drugs (federal)
White Collar (state)
White Collar (federal)

These columns, obviously, are hardly exhaustive, but are used to make a point.  There are broad variations in who we are, what we do and where we do it.  Each of these factors will potentially change the equation.

Historically, when the economy tanks, crime rises.  The old joke is that people commit crimes in good times and bad, but the fact is that when people can’t earn a living lawfully, people who would not be otherwise inclined to commit crimes become desperate and make desperate choices.  Not all, and it’s not an acceptable reason, but it happens.

Mike’s question was where will the money come from to pay for the representation of these people.  For some years now, I’ve felt that the private criminal defense practice was on the verge of collapse.  It’s not that there aren’t paying defendants, but that there aren’t enough paying defendants to keep the private criminal defense bar alive. 

There is a small group that has done, and will continue to do, very well.  These are the best know, best-regarded criminal defense lawyers.  These are not always the best lawyers, a point that’s been discussed many times before, but the ones to whom people who couldn’t judge a lawyer if their life depended on it (and it does) flock. 

Others, unfortunately, flounder for much of the time, waiting for the phone to ring with a decent case.  In the meantime, there are plenty of defendants in need of representation, but without the ability to obtain it.  Mike asks about those who paid their fees by taking out a second mortgage on their homes.  This group just disappeared, because there are no loans to be had, and they have joined the indigent.

It’s quite likely that courts, and those who create the construct for eligibility for free legal services, will be behind the times when it comes to determining how to qualify for a fee lawyer.  Own a home worth a couple hundred thou, and you’re one of the rich ones.  Except you can’t pay for a lawyer with the rumpus room, so it’s an asset of no utility.  You fall through the cracks.

In the meantime, there will not be enough funding to pay for enough lawyers to fill the needs of indigent defendants.  This creates a crushing burden, often resulting in massive systemic failures to represent.  As for the “private” lawyers without paying clients, the safety net of indigent defense to fill those empty hours will be slashed as politicians do everything possible to cut budgets.  If you think it was bad before, just wait.

That said, my prediction is that competition for good clients/cases, which has been fierce over the past few years to begin with, will get far worse, and be far more price competitive rather than quality competitive.

For those lawyers who do quality work for lower end crimes, find another practice area.  I predict your business is going to dry up, and that the bottom dwellers, sucking up felonies for $1000, will steal what little business there is.  As for supplementing your private work with indigent defense, I predict that there won’t be enough funding to pay, and vouchers will be cut, payments delayed and the work spread out so far that no one will be able to pay their bills this way. 

Public defenders will still get their paycheck, but their caseloads will double or triple, and their supervisors will shrug because there is nothing to be done.  Plea offers will get worse, because the prosecutors will realize that you don’t have the manpower to carry the load, and pressure will come to bear to clear out cases as quickly as possible. 

My suggestion is that lawyers who do criminal defense exclusively will have to start branching out into other practice areas to maintain revenues.  Most can’t carry the cost of an office, a practice and a family without a regular revenue stream.  If the phone isn’t ringing, you’re in trouble.  Have you saved enough to carry you through a year or two of not being able to make your nut?

Unlike the good old days, when criminal defense lawyers were one of the few groups able to thrive on bad economic times, I think it’s going to be different this time, largely because we had systemic problems going into this recession that hadn’t been the case before.

But that’s just my opinion.  What do I know?