As anyone who has ever skimmed criminal defense lawyer websites is painfully aware that every one says the lawyer is “experienced, aggressive and caring.”  We must be the most amazing bunch of lawyers ever, since there’s not loser in the bunch. Or so it seems.  Obviously, some are completely full of it, whether because their experience consists of 3 years in a prosecutor’s office or 12 minutes in the trenches copping pleas.

A problem arises from callers who want to know whether the lawyer on the other end of the line has the goods.  Some, like this caller, ask a bunch of questions, but many just want to tell the lawyer their side of the story, get a supportive reaction and a fee that matches their pocketbook. 

The burden then flips to the lawyer.  Surprised?  Most are, since there’s a tacit understanding within the bar that if a client is willing to pay you money, you’re golden.  But what of the lawyer who takes on a case they aren’t equipped to handle?  Sure, you’re a criminal defense lawyer (and some are simultaneously real estate lawyers, according to the caller’s needs), but there are some areas of criminal law that require specialized knowledge to be effective.  One such area is DWI.

I’ve never done a DWI case.  When a call came in on a DWI, I would refer it out.  I’ve got no expertise with the Breathalyzer 5000, or the sobriety tests used, or blood alcohol content.  I know some other lawyers who are incredibly knowledgeable about these things, and they can provide a great defense whereas I would be incapable of providing a defendant the defense he deserves.  If I was interested in DWI cases, I would work with these great lawyers and learn from them.  I’m not, so I’ve never done so.  I’m more than happy to send these clients to better hands.

These days, however, lawyers aren’t always inclined to take a pass at a paying client.  Business is slow for many, and passing up a fee isn’t something that they’re inclined to do.  One lawyer has written about his taking on such cases, despite having no experience in handling them.  He touts that he’s reading a book to learn how to do DWIs  While it’s better than going in blind, it raises some hoary questions.

It’s impossible to gain the experience and knowledge necessary to provide effective assistance of counsel by reading a book.  This may be the best one can do, say when a client in a rural area lacks access to a lawyer who is competent to defend and the only lawyer in town lacks the experience to handle the case.  In that instance, an inexperienced lawyer is better than no lawyer, and a book is certainly better than nothing.

It may be that the defendant can’t afford a competent lawyer, and the one he’s chosen has fully disclosed that he’s never done a DWI case before and plans to cut his teeth on the client.  If the client is cool with that, appreciating that he’s getting a DWI virgin and willing to take his chances, it’s acceptable.  Less than optimal, obviously, but at least there’s no deceit.

But as we know from the wealth of “experienced, aggressive and caring” lawyers on the internet, not everybody is playing fair.  Honesty can be bad for business.  The surest way to lose a client is to tell them that you’ve never done a case like theirs, which requires specialized knowledge, but would sure like to give it a shot on their dime.  Tell the client not to worry, you’ll read a book.  See how happy that makes them.

There are ways around the problem.  Refer the case to a competent lawyer and co-counsel up to learn her ways is the best idea.  Read the book as well, but don’t expect a book to substitute for life in the trenches.  Somehow, things never quite work out the same in real life as they do in books (or CLE war stories, for that matter).  Chances are that you will need to do it a few times before you’ve got the chops to do it well.  That’s the price of competence, no matter how experienced you claim to be on your website.

A story I’ve told here a few times is instructive.

A few years back, I had an evidentiary hearing before Judge Kimba Wood in the Southern District of Ne York.  It related back to a New Jersey case, where the defendant had taken a plea to some relatively inconsequential felony offense and was given probation.  The problem was that he was on life parole in federal court at the time, and the Jersey lawyer neglected to mention that he was going to get banged by the feds despite his probation in New Jersey when he advised him, STRONGLY, to take the plea.

The Government put the Jersey lawyer on the stand.  He spoke eloquently of his many years of experience as a criminal defense lawyer, and his determination to advise his client, now my client, to take the deal.  On cross, I asked the lawyer to tell us how many felony cases he had tried to verdict before a jury in his long and illustrious career as a criminal defense lawyer.  He was silent for a while.  He looked up at the ceiling, deep in thought.  He looked down at his fingers, toes and some other part of his anatomy that was concealed by the rail.  A few minutes went by in silence.

Finally, I asked him again, please tell us how many.  He looked at me with venom.  Very softly, he answered:  “None.” 

Of course you need the business.  Of course you want the money.  But that’s not good enough.  If you can’t handle the case, taking it is completely unethical.  And there is no excuse for lying to a client about having vast experience.  When you blow the case, it’s not you who suffers the consequences. 

No matter how good the book is, if you have told your client the truth, you’re wrong to take the case.  No matter how many hugs you get from your fellow lawyers who feel your fiscal pain, there is nothing that will make your inability to defend a client less of a disgrace.