Trying desperately to be the criminal law alter ego of Above the Law (without resort to the infantile sexual innuendo and pictures of hotties that so enthrall young associates), I’m announcing the bonuses to be given in criminal defense for 2008 will be the same as those in 2007.  Zero.

Sure, there are a few law firms of some magnitude that cover the practice area of criminal defense, or at least pretend they do, who have traditionally handed out bonus checks, but they don’t count because they either don’t really do criminal defense, or their concept of criminal defense is to walk the well-worn path to the United States Attorneys office to sip coffee and flip their client.  Perhaps we need to come up with a different name for this type of representation, but it isn’t criminal defense as the rest of us know it.

Dan Hull, the toast of the continent and Jiminy Cricket of corporate apologists at What About Clients? bemoans the “entitlement theory” of associate bonuses reflected by the comments to ATLs announcement that Biglaw bonuses might be insufficient to cover the downpayment on the Ferrari.

“Just being-there” bonuses tells the whole world–not just your clients–that your law firm values “talent retention”, crowd control and morale in the associate ranks over common sense economics and the kind of things clients think about: reward, punishment, incentive, efficiency, penny-pinching in good times and bad.

The associates, in response, say very mean things.  They want their bonus.  They deserve their bonus.  Because they breath.  The best argument they can muster is if they don’t get a bonus, it just means the partners get more money, and to that they say (anonymously, of course), “screw the partners.”

Criminal defense lawyers, at least the ones I know, don’t go through end-of-year bonus angst.  We don’t get them.  We’ve never gotten them,  There’s no one to give them to us.  Instead, we work hard for our clients who, we can only hope, will have some modicum of appreciation for our efforts and pay any outstanding balance on our fees.  This is our equivalent to the bonus. 

Year after year, criminal defense lawyers are constrained to earn a living by practicing law.  If we do it well, we get the opportunity to represent another client.  If we do it poorly, we join a law firm.  Each client we represent is a bonus.  Do a lousy job and you get no bonus.  Do a decent job and you get to practice law for one more day.

Hull believes that clients shouldn’t care at all whether associates get bonuses, large or small, provided that they are given for the right reason, which is not the fact that an associate has managed to show up in the office again today.

Yearly bonuses, given no-matter-what, should make anyone sane nuts, crazy, twisted, Flip City, in short order. Give the firms time to get properly and routinely tight with money, which they should have done all along.

While he left off “kooby-shooby”, showing his lack of proper education, Hull is right on target.  A bonus is not a right, but a reward.  It’s a way of saying, you did better than the others, and for that you get more than the others.  Without incentives, we are dull knives in the drawer.  Sane economics demands that law firms not reward the dead wood as well as the top performers, and despite what their mommy’s tell them, not every Biglaw associate is God’s gift to the law.  Very few, in fact, pan out very well, though their paychecks wouldn’t show this.

This has been the way of criminal law for as long as I’ve been practicing.  Earn the right to defend the next client, and you get the bonus of the next fee.  No private criminal defense lawyer can stay alive by just showing up.  If you want to thrive, work harder, smarter and better than anyone else.  Then you get your bonus.