Criminal Defense Advertising. What Works and What’s Right (Update)

As I was riding the train home after teaching an ethics CLE yesterday, I thought about a discussion a few days ago with one of our most respected legal marketers in the blawgosphere about the propriety of certain self-promotional techniques.  While I promised not to post about the specific individual about whom I questioned, the general concept remains fair game.

There seems to be relative universal agreement that the future of legal advertising is the internet.  The yellow pages, Martindale-Hubbell, all the old-school methods, are dead.  While the latter seems pretty clear, not that M-H was ever a viable source for criminal defense lawyers since few defendants have much call for checking Martindale-Hubbell, the former seems to work fairly well in some niches of criminal defense, such as DWI.  However, the nature of criminal defense demands a certain immediacy, and searching the internet doesn’t help much to find someone NOW.  I’ve discussed in the past how use of the internet can actually paralyze someone in their search for counsel.

But this hasn’t stopped criminal defense lawyers from creating websites for the purpose of marketing themselves.  The question remains, however, what can be said to distinguish one from another.

They all say that we fight hard for our clients.  I’ve yet to see anyone try to promote themselves by claiming, “we’ll take your money and plead you out at the first possible opportunity.”  They all say that we are experienced.  No one says, “I’ve never actually tried a felony, but I would really like to try.”  All in all, websites offer almost no basis for distinguishing competence from incompetence, rendering them a utterly meaningless and a total crapshoot for the legal consumer.  I have one.  I hate it.  I wish I didn’t have one.  I can’t bear to look at it, and I think it’s awful.

But there is one variation on a theme that seems to have far greater impact than others, and this is the one that troubles me greatly.  Here’s the pitch:  I am a former prosecutor, and therefore I can do things for you that other people can’t.

Let’s take a hard look at this.  The pitch is intended to capitalize on a basic misperception by the public, that the skills one develops as a prosecutor, characterized as “experience in criminal law,” translate into the skills one requires as a criminal defense lawyer.  As has been discussed ad naseum, there is no intrinsic connection between the two.  Indeed, the transition from the dark side to the light is often painful for former prosecutors, who mistook the love they received from the court as personal rather than institutional.  Suddenly, all those things that made their efforts successful as a prosecutor were gone, and they found the defense side to be painfully difficult.  While some former prosecutors make spectacular criminal defense lawyers, some are miserable failures.

What of the ethical duty on our parts as attorneys to not mislead the public?  Knowing, as we do, that experience as a prosecutor is not the equivalent of experience as a criminal defense lawyer, is it ethical to feed into this misapprehension and exploit the public’s ignorance?  Sure, it helps the former prosecutor to get clients when the truth would not, but ethics aren’t suspended because income is on the line.

The answer is clear.  We cannot ethically mislead the public.  See DR 2-101 :

A lawyer shall not, on behalf of himself, his partner, associate or any other lawyer affiliated with him or his firm, use or participate in the use of any form of public communication containing a false, fraudulent, misleading, deceptive, self-laudatory or unfair statement or claim

No matter how effective it may be to capitalize on common misperceptions, we can’t do it.  We shouldn’t do it.  Yet it’s done all the time. 

But this isn’t the most insidious aspect of marketing oneself as a former prosecutor.  A secondary implication, which is often suggested, and sometimes overtly claimed, is that by being a former prosecutor, a criminal defense lawyer has some inside track to getting his old buddies to let him have special sweetheart deals, or that he’s got some special friendships with the judges before whom he appeared day after day after day, who will do him (and therefore you, dear client) special favors that would not come your way but for his inside connections.

For those of you who promote yourselves as former prosecutors, don’t pretend this isn’t the case.  Some use the “wink and nod” method shamelessly.  Most acquiesce in the implication at minimum.  Who amongst you tells clients that you, as a former prosecutor, have no greater access to “favors” than anyone else? 

This is an outrage and affront to everything that we do.  You suggest, if not scream, to the public that the criminal justice system is overtly corrupt, a game of back-scratching where prosecutors dole out deals to friends and judges put favors above duty.  You demean what little dignity there is left to the law, and feed into the public perception that we are all engaged in one big scam on the public.  It’s not what you know, but who you know.  It’s not hard work, but cronyism.  It engenders cynicism at its worst.

To suggest that the criminal justice system, the courts, the judiciary is corrupt, and that one lawyer can exert special influence, is a disgrace.  Yet this is precisely what comes of promoting that, as a former prosecutor, you have something “special” to offer.  How ironic that someone who promotes her efforts to enforce the law would engage is such unethical conduct to make a buck on the back of those efforts.

I raise this issue not because I hope to influence the innumerable former prosecutors turned defense lawyers who are trying to woo clients through the use of the one tool available to them, not matter how unethical.  You aren’t going to pay any attention to me, and will mutter as you read this how wrong I am, what an idiot I am, and how dare I challenge your use of your very valuable prior service in demonstrating your worth to potential clients.  You are a lost cause, and nothing I say is going to interfere with your desperate attempt to snag as many clients as possible. 

Rather, I post this for the benefit of the many people in the blawgosphere who are engaged in the promotion of marketing and practice.  Too often, your zeal to promote marketing efforts and initiative ignores how these efforts impact on our ethical duties as attorneys.  The law is not just a business.  The law is not like any other business.  What may be a brilliant business move may also be quite unethical.

Please consider the ethical implications of who, and what, you are promoting as you highlight individuals, websites, blawgs and tactic around the blawgosphere.  I know that you are all about business, and mean well in your efforts to help attorney further their practices and break away from the yoke of servitude.  But we are still lawyers, bound by a code of ethical considerations and disciplinary rules.  You just can’t ignore this, and by promoting those who ignore their ethical duties, you are complicit in the death of professionalism.

Market all you want.  Just do it ethically, even if it means giving up something that works.

Update:  The Texas Tornado, Houston criminal defense lawyer Mark Bennett, chimes in on this subject and raises an excellent corollary:  If your ex-prosecutor cum criminal defense lawyer is busy cutting sweetheart deals in the backroom with his buddies, what makes you think he’s not trading off freedom for one client for prison for another?  Remember, cutting unethical deals works both ways.

On the other hand, WindyPundit isn’t ready to buy into this argument just yet, writing “Surely an ex-prosecutor who thinks his experience helped him is entitled to say so?”  Well, no.  This is one of those things where a non-lawyer fails to appreciate what professional ethics means, and the duties it imposes.  By accepting the monopoly of the right to practice law, one gives up a certain degree of freedom, including the freedom to misrepresent, as well as the freedom to pick and chose one’s reality in order to ignore unethical conduct.

WindyMark also points out that since his home town, Chicago, has a history of judicial corruption, there’s nothing wrong with advertising that one has an advantage with corrupt judges.  It’s not that Windy thinks well of people who do, or that it will work to the clients advantage as suggested, but that there may be truth to the marketing technique.

I realize that being an ethical lawyer sounds almost Pollyanna-ish to non-lawyers, who are filled with cynicism and disdain for lawyers.  Indeed, the client may be fearful of the ethical lawyer, who (in his mind at least) won’t break the rules to help the client.  But I will reiterate two things: First, rampant corruption doesn’t exist.  It’s a myth.  Yes, there are instances of ocassional corruption, but these are extremely rare, and certainly not something that one should desire or count on, no matter how many clients ask if we can bribe the judge. 

Second, the goal of ethical lawyers is to improve the legal system, not play it for all it is worth.  I have seen things, impropriety, between lawyers and clients that would make your hair stand up.  Terrible abuse, outrageous lies, outright theft.  When unethical conduct flourishes, the client is always the one who gets burned.  Always.  The dice are loaded, and lawyers will win in a challenge to ethics everytime.  That’s not okay with me, and my purpose is to illuminate unethical conduct and, hopefully, to put a stop to it. 

Good, competent, ethical lawyers do well enough without having to cheat the clients.  Don’t feel sorry for them.

9 thoughts on “Criminal Defense Advertising. What Works and What’s Right (Update)

  1. MAG

    Slightly off point, but we have a local personal injury lawyer who advertises on television and billboards touting his prior services as a sheriff!. I’m sure that is somehow relevant, to someone, but how or to whom?

  2. SHG

    My guess is that he uses that to prove his “credibility”, since PI lawyers are the “ambulance chasers.”  Plus, it doesn’t hurt to suggest he’s got “connections” as well.  Clearly, it has nothing to do with being a PI lawyer.

  3. B

    I would think the advantage of a prosecutor turned defender is that they have a better working knowledge of how the other side works and thinks, being that they where once on the other side of the courtroom.
    Its similar to how wall st firms hire former doctors to do research on medical companies and FED economists to interpret what Bernake is saying.
    The advantage a client might seek from a former prosecutor may not be for insider dealing purposes, but for the information advantage a former prosecutor.

  4. SHG

    While that reasoning is at least not facially unethical, it is illusory, at least in a prosecutor’s office of any size, and like promoting one experience as a prosecutor to suggest that the skills translate to defense, promoting an illusory assumption is likewise misleading. 

    When Biglaw hires doctors, it is because they are doctors.  That’s a different education and skillset.   Same with economists.  Not the same with prosecutors, unless one wants to count their plea bargaining with the former officemates as lobbying, which goes back to the “insider” favors insinuation.  But most prosecutors, if being honest, will acknowledge that while their chats may be friendly, but they get no free rides.  Some say that they are more subject to pressure from their old chums to put the skel away than the other way around.

    Some rationales sound sensible.  The problem is that they are false and, therefore, misleading.

  5. SHG

    It came about during a discussion with a friend in the blawgosphere about a post that I found troubling, but beyond that I’m sworn to secrecy to protect the innocent.

  6. Joe Dane

    Must the opposite also true then? If a defense attorney decides to switch sides and become a prosecutor, should the citizens and taxpayers be concerned that they’ll be giving away serious cases because of their prior job?

    The best prosecutors have to think like the best defense attorney in order to see any weaknesses in their case and be prepared to deal with them. Hopefully, the best defense attorney can also think like the prosecutor and use that knowledge to their advantage.

    I completely agree – outright claims that “if you don’t hire me, you’ll never get the deal I could get you” are disgusting. Informing the public and potential clients of your experience? A completely different story in my opinion. I do enjoy your blog and respect your perspective.

  7. SHG

    1.  A great defense attorney does not necessarily make a competent prosecutor, any more than a great prosecutor makes a competent defense attorney. 

    2.  The “best prosecutors” would do well to hink like the best defense attorney, but they can’t because they aren’t and wouldn’t have the slightest ability to do so.  Instead, they just have to suffer with being the “best prosecutors.”  This is a trick question, since it presumes capacity, and hence is inherently circular.

    3.  Informing the public of prior experience is fine, of itself.  Promoting that experience to suggest that it’s of particular value when it’s not, and when it is either designed to or likely to mislead, is another matter.

    And thanks for your kind words about my blog.

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