Over time, a private criminal defense lawyer gets to represent a lot of people.  For the most part, our clients are repeat clients, coming back because we’ve served them well before, or referring their friends for the same reason.  Eventually, you realize that you’ve got a circle of clients who are all in some way connected to each other.  This connection often has nothing to do with their being in the same book club or knitting circle.

Work hard, represent them well, achieve successful results and they come to you when they are in trouble.  Keep them out of prison and they are repeat business.  Lose their case and they can’t come back to you.  They are otherwise occupied.

This made for a very busy and profitable law practice.  But things changed in the way the prosecution viewed lawyers.  I started hearing the words “house counsel” from the mouths of young prosecutors, who were asking the judge to throw me off the case.  This phrase was popularized during the prosecution of John Gotti, reputed head of the Gambino crime family.  His lawyer, Bruce Cutler, had been too successful in his representation of Gotti, and when Gotti was indicted in 1990 for the murder of Big Paul Castellano outside Sparks Steakhouse in 1985, he wanted Cutler by his side. 

The government came up with the “house counsel” attack, one that had a great deal of visceral appeal, despite its lack of substance.  Gotti retained Cutler again because Cutler did his job well.  That’s how it works.  The fact that he had served Gotti well in his prior trials seems like an awfully good reason to continue to use him, not a justification for precluding Cutler to represent Gotti.  The judge bought it, however, and Cutler was tossed.

In the 1990s, state court prosecutions of my clients individually gave way to massive federal conspiracy indictments of them as part of an “organization”.  I would get the call about a big bust, and walk into a courtroom to see 25 defendants, all of whom I had represented.  Some, I had represented many times.  Their faces lit up when I arrived, though they knew that I would sign on for the top defendant.  Still, they were far more comfortable knowing that I was in charge of the case.  Even though I was not the personal lawyer for everyone in the room, my representation would inure to everyone’s benefit. 

The prosecutor would then inform me that not only had I represented all the defendants named in the indictment, but the snitches as well.  While it’s possible to have current and former clients waive a conflict of interest to allow me to represent one defendant in a multi-defendant case when I had previously represented other defendants in the same case, there was no waiver to be had when I had represented the rats before they flipped.

I tried to argue my client’s 6th Amendment rights to counsel of choice, but it was in vain.  The government would pull out the old “house counsel” chestnut and the judge would get the snarly look on his face, as if I was trying to pull a fast one.

I was never house counsel to any organization.  I was a criminal defense lawyer who, if I did my job well, would enjoy the benefits of repeat business or referral business.  I was never on retainer.  I didn’t do their contracts or house closing or wills.  No one was ever forced to retain me to be their lawyer.  I did my job well, and people came back to me for that reason alone.  They were in trouble and needed a lawyer, and I was the lawyer they chose.  Isn’t this the way it’s supposed to work?

It broke my heart to watch these major conspiracy cases go forward, with my circle of clients sitting together in the room, without me.  It broke my heart not to earn a legal fee for representing them.  It broke my heart to watch good clients, people with whom I had become close during past trials and meetings and telephone calls, with some other lawyer sitting next to them in the seat that should have been mine.

I was a victim of my own success, and it was killing me.  There’s no other business where success would do this to you.