Gideon at A Public Defender pointed out a “letter war” between a public defender named Miriam at a Accident Prone and her commenter, Tony Colleluori from That Lawyer Dude.  The exchange was ungracious, but reflects long-standing tension between public defenders and private criminal defense lawyers, younger lawyers and older lawyers, better lawyers and worse lawyers.  Gideon and I decided that we both post about it today, reflecting our respective backgrounds since Gid is a public defenders and I’m private.

Miriam, a Minneapolis PD, apparently was the recipient of the all-too-frequent smack that public defenders receive from those they try so desperately help, the defendant.   But the defendant’s hand was guided by someone who would have been her brother at arms, someone who would know better than to make a buck at her expense, by demeaning her competency to suggest to the defendant that his private skills are so much better that they are worth a fee.  To this lawyer, she writes:

Dear Private Attorney,

I know you think you know more than I do. Hell, maybe you do. I know that you think dispensing legal advice without, oh I don’t know, “reading the file” or “knowing about what the evidence is” is a good idea.

In the future, if you’re not going to do either of those things, please do not tell my already deluded client that he “should be able to get” a misdemeanor disposition from a felony. Or else, take the damn case and get what he “should be able to get” for him. Oh wait, what? You can’t/won’t/don’t have a valid legal license to do so? Then shut the f&*$ up!

Warmest Regards,
Mariam

As the later shows, Miriam is not happy. 

Tony, on the other hand, is a private criminal defense lawyer on Long Island.  He’s been around a long time and makes his living by being retained to represent criminal defendants, many of whom must make a choice between sticking with their public defender or scraping together the funds to retain him.  Tony markets himself through the internet, and just the other day stopped by here to defend lawyer marketing.  Tony responded to Miriam:

Dear Public Defender,

I am sorry that I can get a better deal for your client than you can. Maybe it is because I have been practicing law for about as long as you have been breathing. False confessions, eye-witness allegations and testilying cops don’t frighten me. I plea bargain, but I do so from a position of power, even when I am the “underdog”. I give your client a feeling of protection and ability.

Chances are I know, taught, mentored or helped elect the judge or prosecutor you are dealing with and s/he will take a chance on a client I represent because I bring a sense of reliability that you don’t enjoy. That is likely because your investment in our legal community is limited to telling your fellow lawyers what rubes we all are or rolling your eyes as we invite you to belong to our bar associations.

Oh don’t forget that while you are guaranteed a salary,I am not. Hence, you don’t work on every holiday or go in on weekends or even return calls… I do.

I give my clients my private cell number and my e-mail address. I am available to him or her 24/7. I am still in my office at 11pm on a pretty regular basis.

I did my time in Legal Aid. I appreciate the work that you do and I enjoyed it when I was doing it, but let’s face it, if I didn’t describe you, I described many PDs who get a lot of credit for dedication, but aren’t always as dedicated as they think. That is why their client is in my office begging me to take his case, and why I can’t. You can take it though, and you could win his undying loyalty and respect, but it’s not free, you have to earn it.

Warmly
Private Lawyer

There are truths in both letters, some smaller and some larger.  Both letters include some generalizations about the other that are, in particular instances, utterly false as well.  Not all PDs are young wild-eyed radicals, and not all private defense lawyers are competent, no less selfless, in their practice.  Not all PDs treat their clients like cattle, and not all private lawyers treat their clients like gold.  Some PDs knew the judges when they wore knickers, and some private lawyers have 20 years of experience practicing really badly. 

The essence of the problem here is that Miriam’s attack on the private criminal defense implicates what some private lawyers will do or say to make a buck.  In order to snare a client represented by a PD, some private lawyers feel compelled to belittle them, their quality, service and dedication.  The “why” is obvious; why buy the cow when you can get the milk for free.  To the small mind, the easiest method of marketing is to improve ones own worth at the expense of someone else. 

Tony’s response is particularly interesting, as it combines both his rejoinder to Miriam’s complaint as well as its own marketing opportunity.  Tony is obviously not shy about selling himself, and will take his audience wherever he can find it.

What is unfortunate is that Tony’s response perpetuates that mistaken belief that the private bar and public defenders are in competition with one another for clients, and that the fiscal vitality of the private criminal defense bar comes at the expense of the PDs. 

We are not competitors, nor must we be competitors.  We are the opposite sides of the same coin, both serving the same goal, and our existence does not depend on belittling the purpose and goal of the other.

I chalk these harsh feelings up to the business needs of the private defense bar, that ugly little thing that has pervaded our professional lives in the effort to get clients and make a living.  Times are tough for lawyers (not to mention everyone else in the world except police officers and Democratic elected officials), and lawyers feel that marketing, the overt self-aggrandizing stuff that has replaced substantive thought across the internet and elsewhere, is their key to survival.  When a PD like Miriam gets up a head of steam on a subject that could turn a few criminal defendants’ heads away from retaining a private lawyer, a private lawyer like Tony feels compelled to jump in, grab them by the scruff of the neck and pull those potentially paying clients back.

This is one of the reasons I hate lawyer marketing (or as a commenter at Bennett’s Defending People wrote, I’m “too extreme,” when I fear that I’m not nearly extreme enough).  For the sake of a buck, it pushes lawyers to say harsh things about their brothers and sisters in the trenches when all they really want to say is, “Hire me! Hire ME!”  And some will argue to me that this isn’t undignified but necessary, as if dignity and necessity were opposites.

Miriam’s complaint is not only valid, but well known to be one of the grave improprieties perpetrated by some in the private criminal defense bar.  They make pseudo-promises to potential clients of great results without basis,either factual or legal, in order to get their business.  They lie.  They deceive.  They sell.  And we are all painfully aware that it happens,

Tony’s reaction is surprising, as he needn’t be so sensitive to Miriam’s complaint lest it strike too close to home.  But since Tony doesn’t troll the courthouse hallways in the hopes of snagging indigent defendants aware from Legal Aid, I assume the best of intentions in his defense of the private bar.  Still, his worth as a private criminal defense lawyers does not come by head to head comparison with some generalized image of the kid public defender.   His worth comes from his own experience, skill and dedication, without resort to demeaning any other lawyer in the process.

If lawyers weren’t working so darn hard to sell themselves, and orthogonally (h/t J-dog) blunting any critical assertions against their own breed, there would be no need to squabble over such things.  Those in the private criminal defense bar either bring something to the table that makes them worth retaining to represent defendants, or they should find another area of practice.  Our experience, skills and dedication are what we offer.  Either they are worthy in themselves, or not.  They don’t become more worthy by beating up on public defenders to make themselves look better and brighter and nicer and worth many thousands of dollars. 

And if we could go back to the days before lawyers embraced the very notion of hyping ourselves to the public to make a buck, none of this in-fighting would be necessary.  This implicates two of my perpetual themes here at SJ, that the United States produces far too many lawyers than it needs, creating open competition for scarce resources, and that the day when the idea of active self-promotion became acceptable for this profession was the day our dignity died.