There’s an old joke about physicians: What do you call the guy who graduated last in his medical school class? Doctor. The part of this joke that matters here is that some people view those they hire to do a job as fungible; one as good (or bad) as another, and hence readily exchangeable.
Some people want a lawyer. Which lawyer they get doesn’t really matter. Any one will do. From the lawyer side, this is only a bad thing when people make a decision who to retain. Once retained, however, lawyers are more than happy to make themselves interchangeable, so that whoever is available at a given moment can show up to represent a defendant, whether partner or associate, whether they know anything about the case and whether there is a personal relationship between lawyer or client. The argument is that the client retains the Firm, and gets whoever the Firm sends. How convenient for the Firm.
Carolyn Elefant, over at Legal Blog Watch, posts about a Maryland decision that addresses this practice, the old lawyer switcheroo.
A criminal defendant can’t be forced to settle for representation by his lawyer’s partner when the lawyer he hired is unavailable for trial, ruled the Maryland Court of Appeals in Miguel Gonzales v. State of Maryland. As the Maryland Daily Record summarizes, Gonzales’ attorney F. Spencer Gordon was unavailable on the day of trial, so Marshall Henslee, his partner appeared instead. Gonzales insisted that he was represented by Gordon, not Henslee, so the judge gave Gonzales the option of either going forward with Henslee or representing himself. Gonzales chose to represent himself and lost.
It’s one thing to show up for a “routine” court appearance and find some other suit standing where your lawyer is supposed to be, but trial? Apparently the trial judge didn’t find this as big a deal as I do. Or as the defendant did, offering the defendant the absurd choice of using the lawyer whose only virtue was presence or flying solo. Nice choice.
Fortunately, that Maryland Court of Appeals (which has been issuing some bang up decisions lately) made a radical ruling, that defendants are entitled to the lawyer they retained. Not the law firm. Not whoever the lawyer sends on a day when he’s busy defending someone more important. The lawyer they retained. Ironically, Gonzalez may have rethought his choice after what happened to him, but his initial reaction remained valid.
Criminal defense, probably more so than any other practice area, is personal. Your lawyer is a particular person, one in whom you develop and repose a level of trust and confidence that doesn’t transfer easily. She’s the woman who looks into the defendant’s eyes, holds the defendant’s hand, hears the defendant’s voice break as he described what happened and how it will affect his life. It doesn’t matter how many lawyers in a firm, or how vast the firm’s resources. It’s one person standing next to you in court, shielding you from everything the government can do to you.
More to the point, it’s not up to a lawyer to decide that the client will be represented by whoever the lawyer decides. This is a decision that belongs exclusively to the client. He has chosen you, and for that you should be appreciative and honor his decision. While I often hear from defendants that their decision was motivated by the “resources” a large firm can bring to a case, a concept I think is ridiculously misguided but one that persists nonetheless, the choice invariably comes down to the lawyer who will stand next to the defendant. The defendant must trust that one human being in a pin-striped suit.
This, Carolyn explains, isn’t the Firm’s understanding:
One would think that the defendant’s lawyers would be excited about the decision (though apparently they did not argue the appeal) — but instead, Gordon’s partner Henslee expressed concerns over the court’s ruling. Henslee complained to the Daily Record that the court’s ruling would force his firm to “reconsider the fairly established practice of having law partners stand in for each other at trial when the primary attorney is unavailable that day.” Gordon also commented, saying that the ruling will compel defense firms to make it clear to their clients that “it’s the firm that represents them” and that any attorney in the practice may handle the case.
I’m unaware of any established practice of having some lawyer a defendant has never met before showing up for trial? Is this a Maryland thing? Being from New York, I can’t say, but I would have a hard time believing it. Appearing for routine court appearances is understandable. But trial? That’s crazy.
Worse still is the focus of these lawyers: It’s all about what’s good for them. Even “worser” is the notion that they can and should “exculpate” themselves from what is facially a scam by informing clients that they hire the Firm, not a specific attorney. If any lawyer says that to you, run like the wind. Away from that lawyer. You’ve just been told that they will do what’s best for them rather than what’s best for you.
What’s deeply disturbing about this is that the defendant, who has met with a lawyer, decided that he is willing to stake his life on the person whose hand he’s just shaken, would get “played” by a facile and somewhat obtuse disclaimer by the very person who just sold his services based on trust. Trusting the untrustworthy is hardly what a defendant has in mind, and clearly not a reflection of who lawyers should be.
It doesn’t matter if your lawyer is solo or one of a thousand. Your lawyer is your lawyer. When you arrive in court for trial, that’s the lawyer you expect to have standing next to you. Anyone else is unacceptable.
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As usual, you understand about trust and professional obligations, Scott. Of course, despite all of the Bar’s self-congratulatory “best interests of the client” baloney, you can be damn sure that “you’re hiring the firm” disclaimers will become part of the boilerplate of most law firm retainer agreements (or be inserted in larger font) almost immediately. That is how the legal profession operates, with the blessing of its sleepy, lowest-common-denominator ethics watchdogs, who are probably already drafting a Fungible Lawyer model rule or comment.
that’s what I was mulling over. It’s my understanding that most retainer agreements (at least here) already contain such language.
Of course, “you’re the client of the firm” does not have to translate into “and you’re stuck with whoever with assign to your matter.” It should mean “the entire firm is responsible to see you are well-served.” The trust part should be making it clear that the client has a veto on substitutions for any substantial portion or facet of the representation — or, gets a large discount for being willing to take whoever is next in line on the bench.
Surgeons do this too. You hire a guy to remove your gallbladder, and later you find out it was done by someone he is “supervising.” Both of them may submit claims to your insurance company. It helps to get an explicit promise of personal performance.
Case in Miami last year. Defendant shows up on day of trial having hired a “high profile” lawyer. Associate shows up. Offer is 7 years. Minimum mandatory is 15 after trial. Associate advises defendant to plead guilty without accepting the 7 because the “judge will never give you that much time.” Defendant wanted his “lawyer.” Judge said trial today. Defendant plead, got 15.
Reversed on appeal.
This kind of thing is way people do not trust most lawyers, especially in criminal defense. I would hope that this is an exception but I fear it is not. Thank you good attorneys who do care and understand your clients needs, you who do are the exception today from what I have seen and should be commended for your work.
I’ve never taken a survey, but I believe that in my neck of the woods, it’s an very rare exception and most criminal defense lawyers understand and appreciate that their client’s repose trust and confidence in them personally, and the individual attorney the defendant retains is the one standing next them.
Then there was the multi-lawyer criminal defense firm in my area whose website (which I can’t find anymore) boasted that someone would be assigned to work with you for the duration of your case. This person would keep you informed of progress and you could call them any time to discuss your case.
The web site was very careful, however, never to say that this person would be your lawyer. Or even a lawyer. But I’m sure you could call the assigned paralegal and she would make a note in your file for whichever lawyer handled your next appearance.
This is just a variation on the phenomenon we all see at parties: if people learn I’m a lawyer, they figure I must be able to answer a question for their uncle Earl on an area of law I don’t practice in a state I’ve never been to, and that generally I know the minutiae of traffic law, landlord/tenant law, and any other area of law that cocktail-party-going mopes might need.
Solo, The Last Refuge of Incompetence?
Solo, The Last Refuge of Incompetence?