My good buddy Gideon, Connecticut public defender extraordinaire, had a comment over at A Public Defender that rocked his world. Private criminal defense lawyers and public defenders have one thing that differentiates their concerns: Money.
I always thought we were brothers (and sisters). You, the criminal defense lawyer in private practice, and I, the public defender. Cousins of a sort. We had one common objective: acquittals defending the Constitutional rights of those unlucky enough to be sucked into the vortex that is the criminal justice system.But now it seems that there’s this schism between us. This divide that I’d never noticed.
Commenter Bill Thompson explains :Your observations are but the tip of the iceberg relating to the inherent conflicts between the private bar and public defenders. The “money” factor is the absolute wedge dividing otherwise natural allies.
Thompson’s comment doesn’t just address the “wedge” that comes from private lawyers smearing PDs in order to scare them into hiring retain counsel, the most obvious example of the money issue. Thompson goes right to the heart of what we do.
But do we still care about good laws, fair laws, due process and our client’s welfare? I suspect the “wedge” is overstated for most private criminal defense lawyers. I would use myself as an example, but no one elected me the representative of the private criminal defense bar. The best I can do, then, is offer my observations of my brothers (and sisters) in the trenches.
While I’ve known many lawyers who are as mercenary as Thompson suggests, that isn’t the “wedge” that divides most private lawyers from public defenders. The thing that disturbs private lawyers most, at least in New York City, is that defendants who can afford counsel are nonetheless given a free lawyer for the asking. There is no meaningful vetting process, and every defendant is handed a PD or 18b lawyer at arraignment by default.
Why buy the cow if you can get the milk for free?
Public defenders aren’t concerned about defendants who can afford a lawyer but elect to stick with the PD. I suspect they are flattered, though they should be angered. These defendants suck up their time, time which should rightfully belong to defendants for whom Gideon (the decision, not the blawger) was intended. They complain about being oppressively overworked, yet don’t turn anyone away, even if they drive up in a shiny Mercedes wearing 20 pounds of gold and diamonds around their neck.
To the private criminal defense lawyer, the defendant who can afford a lawyer is their domain. The PDs are taking away their next meal. Where’s the mutual love? Defend the poor and downtrodden all day long, but let the private lawyers make a living too. While PDs see themselves as just helping those in need, private lawyers see them as poaching on their turf.
This raises the question of how one distinguishes a defendant who can pay from one who cannot afford an attorney. Here too there’s a schism. For most PDs, and some private lawyers, a defendant who can afford counsel is one with cash in the bank (or the suitcase, as the case may be). Most private criminal defense lawyers, however, would contend that defendant’s possessed of assets, house, car, jewels, are clearly capable of paying.
The difference here is the question of whether a person accused of a crime is required to render himself destitute in order to mount a defense, selling off all his assets to pay for a lawyer. The PD thinks not. The private lawyer thinks that there is no difference between cash in the bank and cash in the Mercedes to justify his getting a free ride. Regardless of how a defendant chooses to keep his assets, if he’s got them he should use them. Obviously, this is because the private criminal defense lawyer wants to earn a fee. In fairness, someone has to pay the cost of defense, and if not the defendant, then the burden falls on everyone else.
While Gideon feigns ignorance of this “wedge” between the brothers and sisters of the criminal defense bar, I’ve no doubt that he fully understands the various concerns and divisions. I similarly believe that he knows that there is far more in common than not, and that most private criminal defense lawyers are not nearly as mercenary or cynical as Thompson’s comment might make them appear. Not that there aren’t greedy, lying, scummy criminal defense lawyers. There are, and we can often tell who they are by their efforts to scare or scam potential clients into purchasing their crappy services.
Call me Pollyanna, but I believe that the really greedy lawyers are a distinct minority, and most private criminal defense lawyers put the interests of defendants well ahead of grubbing money. But they still need to feed their families, and that means they need to represent paying clients.
PD’s here complain about the phenomenon of over-indictment, while private practitioners celebrate it as “the difference between driving a Chevy and a Cadillac”. PD’s speak of decriminalizing drug offenses while profit-minded attorneys rue the day. It’s these differences which typically land a lawyer interested in criminal defense in one camp versus the other.While heavy on cynicism, Thompson’s point has certain merit. Private criminal defense lawyers feed their families because people get arrested. Legalize drugs, for example, and a huge source of revenue disappears. Drug cases are good business, whether we want to publicly admit that or not. The clients tend to be easy to work with and prepared to pay the fee as a cost of doing business. Murder cases are more of a problem, since there’s no money in murder and many accused murderers can’t afford a lawyer. That’s bad for business.
But do we still care about good laws, fair laws, due process and our client’s welfare? I suspect the “wedge” is overstated for most private criminal defense lawyers. I would use myself as an example, but no one elected me the representative of the private criminal defense bar. The best I can do, then, is offer my observations of my brothers (and sisters) in the trenches.
While I’ve known many lawyers who are as mercenary as Thompson suggests, that isn’t the “wedge” that divides most private lawyers from public defenders. The thing that disturbs private lawyers most, at least in New York City, is that defendants who can afford counsel are nonetheless given a free lawyer for the asking. There is no meaningful vetting process, and every defendant is handed a PD or 18b lawyer at arraignment by default.
Why buy the cow if you can get the milk for free?
Public defenders aren’t concerned about defendants who can afford a lawyer but elect to stick with the PD. I suspect they are flattered, though they should be angered. These defendants suck up their time, time which should rightfully belong to defendants for whom Gideon (the decision, not the blawger) was intended. They complain about being oppressively overworked, yet don’t turn anyone away, even if they drive up in a shiny Mercedes wearing 20 pounds of gold and diamonds around their neck.
To the private criminal defense lawyer, the defendant who can afford a lawyer is their domain. The PDs are taking away their next meal. Where’s the mutual love? Defend the poor and downtrodden all day long, but let the private lawyers make a living too. While PDs see themselves as just helping those in need, private lawyers see them as poaching on their turf.
This raises the question of how one distinguishes a defendant who can pay from one who cannot afford an attorney. Here too there’s a schism. For most PDs, and some private lawyers, a defendant who can afford counsel is one with cash in the bank (or the suitcase, as the case may be). Most private criminal defense lawyers, however, would contend that defendant’s possessed of assets, house, car, jewels, are clearly capable of paying.
The difference here is the question of whether a person accused of a crime is required to render himself destitute in order to mount a defense, selling off all his assets to pay for a lawyer. The PD thinks not. The private lawyer thinks that there is no difference between cash in the bank and cash in the Mercedes to justify his getting a free ride. Regardless of how a defendant chooses to keep his assets, if he’s got them he should use them. Obviously, this is because the private criminal defense lawyer wants to earn a fee. In fairness, someone has to pay the cost of defense, and if not the defendant, then the burden falls on everyone else.
While Gideon feigns ignorance of this “wedge” between the brothers and sisters of the criminal defense bar, I’ve no doubt that he fully understands the various concerns and divisions. I similarly believe that he knows that there is far more in common than not, and that most private criminal defense lawyers are not nearly as mercenary or cynical as Thompson’s comment might make them appear. Not that there aren’t greedy, lying, scummy criminal defense lawyers. There are, and we can often tell who they are by their efforts to scare or scam potential clients into purchasing their crappy services.
Call me Pollyanna, but I believe that the really greedy lawyers are a distinct minority, and most private criminal defense lawyers put the interests of defendants well ahead of grubbing money. But they still need to feed their families, and that means they need to represent paying clients.
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As you might recall, (presumably) highly-paid private criminal defense attorneys Norm Pattis and Mark Bennett have argued (Norm very recently) that all criminal defendants, whether rich or poor, should be entitled to a publicly-financed defense. Such a regime would presumably cut deeply into their incomes, suggesting that they are two examples of private criminal defense attorneys who put principle far above money. (Such a system might not cut into private defense attorney incomes, and might actually augment them, if defendants could still retain the attorney of their choice at whatever he might charge and apply the public financing that would normally be available to offset the cost.)
In my view and experience in Minnesota, there are few “bad actors” among both the private criminal defense bar and our public defenders – and in about the same proportion in both groups. I’m a private criminal lawyer. I frequently defend public defenders (always, if potential clients bring it up), as generally great lawyers but will allow that public defenders have a bigger caseload. You can pay me to devote more time than they will be able to devote to your case. That’s only true categorical difference.
[Ed.Note: Link deleted. Links to yourself aren’t permitted in comments.]
My approach to criminal defense is to show the moral superiority of the defense position first. Clients benefit from the courage of my convictions, as do I, juries, and the public at large. This courage is partly based upon the morality of criminal defense, and helps us avoid criminal court convictions.
Of course I recall, but I had chosen not to specifically identify individual attorneys who put their clients ahead of their financial self-interest because it suggests that others unnamed do not. As you can see from the comment immediately below this, some lawyers will now try to make clear that they are the good ones and not the evil ones. I deliberately omitted names so that this wouldn’t happen and no one would feel compelled to state their position for fear they would be wrongly tarred.
So I can either delete your comment to avoid the problem you’ve needlessly created, or use it to point out the reasoning I use when writing a post versus the compulsion to post a comment adding in what you think is missing from the original post. I choose the latter in order to help you to understand the error of your ways.
No one suggested otherwise. In fact, nothing is suggested about you at all. But your use of comment to promote yourself here, including the link to your blog that I’ve since deleted, is not appreciated. My comments are not a place for you to advertise.
The intent of my comment was only secondarily to highlight Pattis and Bennett as two of the good guys. Your post suggests that defendants who might be available to afford private counsel and PDs who don’t turn them away are a legitimate gripe of the private criminal defense bar. I cited Pattis and Bennett primarily to suggest this isn’t a legitimate gripe.
Is that why you commented, John? To make me aware of what Bennett and Pattis have written, because it’s likely that I wouldn’t know? Well, that changes everything, except their views have nothing to do with the legitimacy of the gripe. Like Bennett and Pattis (I hope I’ve spelled their names correctly), it’s not a concern of mine either, but that doesn’t mean that others who are in “competition” with PDs for cases don’t have cause to complain about defendants receiving free representation when they could afford to pay. In other words, their views have no bearing on the legitimacy of the gripe. So much for the post hoc rationalization.
This is the end of this discussion, so any further comments can relate back to the post and not to your personal issues.
Well – I do feel my comment has been misunderstood. I hadn’t thought your post suggested anything about me as an individual, only about private criminal defense lawyers as a class (a class I am a member of). I hadn’t thought my comment was promotion or advertising, but rather a specific example. The page to which I linked, is about legalization of drugs more than about my services (60/40) – though both subjects are there. A thought it a case in point (that at least some private criminal lawyers advocate legalization) – coincidentally, in agreement with the orginal post. In any event, I am sorry my writing was not clear enough to avoid such misunderstanding. I apologize to you, and request you delete my original comment, please (and those related). I did like your post, subscribe to your blog, and that is also why I commented. Anyway, sorry.
Apology accepted. Glad you like the blog, and now that you’re aware of the rules, I’m sure there won’t be any more misunderstandings.
Depends on what “money” means
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Long time reader, first time writer. Apologies for the anonymity, but I feel that it’s the only way for me to avoid appearing like a spokesperson for my organization (absent a disclaimer as lenthy as Gideon’s). That and I’m afraid you’ll make fun of my age.
I disagree with your statement that we (PDs) are not concerned with clients sticking with us while driving up in a Mercedes. I, and most of my colleagues, regularly tell clients to retain when we suspect they’re not as indigent as they claim. If they protest, I tell them to bring in their tax returns and bank statements. Plenty of judges regularly inquire as well. Do some people slip through? Sure. But I doubt it’s nearly as pervasive in NY as it appears to be elsewhere.
I’m very glad to hear it. If that was the case everywhere in New York, there would be no issue.
There is more to this than PD’s merely taking the odd client that can pay. In NYC the Legal Aid Society and the other defender services have contracts with the city. The contracts are based on the number of defendants represented. If the PD’s do not reach their quota of clients they risk losing a portion of their funding. The last time I checked the LAS contracted to take 87.5% of the cases coming through arraignments. Seven of eight is a hefty amount.
I do not blame the LAS for this as NYC imposes this system. Nevertheless, there really is a motive for Legal Aid to take more rather than less cases.
Retained clients don’t count towards the %. Neither do conflicts that go to 18B. The % that LAS/BDS/QLA etc. fight over is with each other over the % of indigent cases arraigned. This also includes cases that judges give to 18B b/c they want to move the calendar a bit faster (this particularly occurs w/ felony VOPs).
I’ve often wondered exactly how indigency is “proven.” I’ve never asked. It seems really crummy for those wrongly accused that in addition to the indignity of being wrongly accused, they should also have their privacy violates by having to produce evidence about their finances.
As a private attorney, taking money has always been difficult for me. I remember before I was an attorney, reading about an old famous attorney from San Francisco whose name (shamefully) I cannot remember (but think it was something like Halloran) who said that we make our living off the misery of others and this is just one more reason we owe our best to them. This has really stuck with me.
At the least, those falsely accused, like those falsely imprisoned, should be reimbursed by either the government or (better yet) by their accusers.
Then why do I hear of so many cases being taken by LAS at arraignment even when there is a notc by private counsel? It has also been my experience that judges wanting to move the calendar will assign LAS more often than not. Obviously my experience is anecdotal. Let me know if I am wrong, thanks.
If there’s a pvt notice in, we won’t take it. If a client says he’s expecting a pvt atty, we’ll sit on the file until the pvt guy gets there. I think the situation you’re referring to is a problem of communication- client’s family hires someone, client doesn’t know, pvt faxes in a notice to the clerks office- but that doesn’t make it over to the courtroom w/ the rest of the papers, and we’ve done the arr. by the time pvt shows up. That happens about once a year for me.