About ten years ago, I developed a theory that the criminal defense bar was doomed. It first came to me during a bar association dinner, when I looked around the room and realized that I was the youngest one there. This was a very bad sign, as I’m not that young (though I still carry myself with great vim and vigor).
What came to me was that younger lawyers were not capable of maintaining a private practice in criminal defense for lack of sufficient paying clients. Or, to put that more accurately, lack of clients capable of paying adequate fees. This wasn’t about the DWI crowd, a non-existent practice in New York City, but about the felonious guys who made up our bread and butter.
Indictments fell dramatically after 9/11, as law enforcement priorities changed and cops were looking for terrorists under every rock. They found a couple of potentially viable Muslims to charge, but the terrorists have no money for lawyers anyway. This was happening in the midst of the 18b and CJA crises, when the fees were so low that lawyers lost money representing the left-over indigents. But it was the only game in town for most, so they fought over representing poor people.
The fees were raised to the point where lawyers could afford lunch at the umbrella stand, but would never get ahead. Defendants, if they had cash, refused to spend it because they didn’t believe having a retained lawyer did them any good negotiating a snitch deal with the government. The lawyers were hooked on government paychecks like hookers on crack. They hated it, but saw no option.
I foresaw this as being the step off the edge of the slope that would ultimately result in the end of the real criminal defense bar. Lawyers had become so dependent on government largess that they would do whatever they were told to keep the revenues, no matter how piddling, coming. And when the day came that courts existed only to accept pleas, they would comply or starve. They have mouths to feed, after all.
At the time, I imagined the end would come with a Machiavellian scheme to subjugate the criminal defense bar, leaving nary a handful of old timers to slog it out for the few willing and capable defendants left who were crazy enough to fight the system. I now see a different end coming.
Cut fo Skelly at Arbitrary and Capricious, who brings us Matt Shirk’s ugly twin from Alabama, James Owens. Is this how the criminal defense bar will be lost? Through the election of public defenders whose avowed purpose is to superimpose their view of morality upon the criminal justice system, making certain the guilty receive their just retribution, the circle will be closed. The two sides have become one for these nouveau defenders, who come to their post with a “higher” calling.
As the public defenders relieve the pressure on the system by walking their charges through the courthouse and into the jails at an ever-increasingly brisk pace, the need for outside criminal defense will subside and the efficient conviction of miscreants will allow for the smooth imposition of “justice” without the disruption that old-time criminal defense lawyers would cause. The few who hold the position and maintain the archaic belief in defending their clients, raising a ruckus about their budgets and caseload, will be replaced by nouveau defenders who make swift work of the problem.
The private indigent defense bar will no longer be needed. Thanks for all your help, but it’s now time to find other work. The retained bar will still have a few high profile cases, over which they will fight tooth and nail, meaning by ever-more offensive marketing and lower fees, but when there isn’t enough work to keep them in Brioni, they too will quietly walk away toward wills and estates. And the government will find no one left to disagree with them, making for a very effective criminal justice system from their point of view.
The defendants will give up all hope. They will not believe that there is any purpose to putting up a fight, and they will not tender what’s left of their assets in the off-chance that they will be the one left standing. They will see the death march of their friends and brothers, and they will assume their place on line.
The beginning of the end is the election of public defenders whose role is to facilitate the prosecution and conviction of their clients. They will drag us all down the slope with them, and will do so happily and with the full support of the “sick and tired” public, never thinking of the consequences until it’s their turn on line. They will become the “solution”.
Sound crazy? Check back in five or ten years and see the consequences of Shirk’s Disease. It can be stopped, but only if we recognize the symptoms.
Update: Eugene Volokh has kindly provided hope via this 1912 law:
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This is one of the reasons we now see so many CLE programs dealing with pleas and “programs” instead of the old CLE where we learned about trying cases.
Too true. Contract systems become a race to the bottom with the clients as collateral damage. Agencies and non-profits don’t have any leverage, and are subject to Shirk’s Disease.
Maybe a voucher system would be better, let the clients choose who they give the business to. I’m not holding my breath, though.
As If Legal Fees Aren’t High Enough
As state budgets are being worked out with red pencils, an idea floated in Connecticut to help spread the pain is a tax on legal fees.
As If Legal Fees Aren’t High Enough
As state budgets are being worked out with red pencils, an idea floated in Connecticut to help spread the pain is a tax on legal fees.
I’ve been absent, so I’m catching up. this post is very poignant today as I got a call from a friend who left the PD’s for private practice about 18 months ago bemoaning the economy and using me as a sounding board for various internet marketing ideas. I directed him to this site for some valid criticisms and assured him that he wanted to build his practice the organic way, by doing good work for client’s willing to pay him and reaping the seeds he sowed thru referrals and a growing reputation.
This post resonates, and certainly scares me. I’ve always wondered why, here in Southern California, even in very conservative counties, taxpayers foot the bill for ferocious and tenacious defense of the indigent.
Ultimately, I have to be optimistic about this and believe that despite the tide of tough on crime cries we currently hear from even the “liberal” populace, there must be an ebb. If there’s anything prosecutors are, it is overzealous. And always in the world, there are people who can be counted on to take up the cause of the persecuted, the downtrodden and the prosecuted. And somehow, we will find a way to feed ourselves and our families while doing so.