On the one hand, there’s a critical need for trust between lawyer and client. On the other, there’s a critical need for detachment. A defendant feels the former, but the latter isn’t an aspect of the relationship that keeps the client warm at night. Friendship and caring, the sense that the lawyer is vested in your well-being, allows the defendant to sleep.
Joel Rosenberg had such a long-standing and close relationship with his lawyer and friend, David Gross. He knew him to be an excellent lawyer, and he trusted him implicitly, To talk about David with Joel was to hear unshakable admiration, the sort that any lawyer would be proud to claim in a client. Many clients place blame on their lawyer for a system that, at best, appears to serve them poorly. After all, it’s the lawyer’s job to tame the system.
So there are few things a defendant wants from his lawyer more than sincere friendship. It’s a dangerous thing.
David Gross was very much Joel’s friend. And Joel was David’s friend. They were close before Joel was arrested for bringing a lawfully carried gun into the waiting room of the Chief of Police’s office, and grew closer still when David, dear friend that he was, stood beside Joel in court.
While having a friend stand close brings a sense of warmth and comfort, it also makes it hard to see things from a distance. One of the key benefits of having a lawyer is his detached perspective, his ability to separate his feelings from his thinking. To be blunt, a lawyer has to view the case with a cold eye. Anything less produces unrealistic and clouded counsel, tainted decisions colored by emotion that poorly serve a client’s needs. As I’ve told many a client, “if you need a friend, get a dog.” I’m your lawyer. Other lawyers prefer to hold hands, as they know it makes the defendant like them for the moment. My preference is to be liked after the case is over, with the defendant walking out of court beside me.
But the relationship between David and Joel was not like the normal pseudo-therapist, inappropriately emotional sort that happens with unfortunate frequency. This was a deeper, stronger friendship that comes only after years of interaction, mutual respect and admiration. This was the real thing. If new-found friendship is problematic, long-time friendship is a nightmare. And that’s what developed here.
David Gross has moved to withdraw as Joel’s lawyer. I’ve read the papers, and they are ugly. Not so much for what they say as the basis for the motion, which is ugly and, in my view, remarkably inappropriate, but what they say about the relationship. The papers don’t read like a lawyer who seeks to sever his duty to the court and client, but an angry friend. Maybe even a spurned lover. They speak of personal hurt, of insult, of affront and offense.
David’s complaints about Joel address legal fees and attitude. The former arises from Joel’s wife having bought Joel a $1000 guitar for his birthday, selling some of Joel’s guns to finance the purchase. David, who took the case knowing that Joel was fired from his job because of his arrest, and lack the available funds to pay in the ordinary course of affairs, was angered to learn that money came in and went out, but not to him.
It wasn’t that he doubted Joel would make sure that David was paid. It was that this felt like one friend smacking another in the face. In his papers, David describes this as buying “luxury” items and living lavishly, all while he had a balance due. Hyperbole aside, it probably wasn’t a great choice. It also wasn’t that big a deal. The bill would be significant when the trial was over, and this guitar would neither make nor break the ability to pay.
Lawyers know that clients continue to live while defending themselves against accusations. They eat. They wear clothes. They sometimes have birthdays, and when things have gotten kinda miserable in their lives, they sometimes buy something a bit more extravagant than they should. Only when it cuts against the tacit expectations of a trusted friend do such small slights, the sort that happen with every client all the time, get blown up into the death of representation.
From the court’s point of view, it may well be that David’s decision to defend Joel without being paid up front was his own choice. If it’s not working out as well as David hoped, then he needs to make better business decisions. But, of course, this wasn’t a business decision to begin with. This was a relationship between friends. Had it been a business decision, this guitar would have meant nothing. Only a friend could take offense at something so trivial and understandable.
Then there’s the attitude, where David challenged Joel for not behaving as one would want in an arm’s length representation. Joel wasn’t a great listener, busy pursuing his agenda and fighting the enemies made over years of challenging the gun-ocracy. The people Joel disparaged over the years were having Schadenfreude overdose, loving his pain. David, who runs with the same crowd, was put in the middle of these battles, and directed Joel to stop fighting the same wars Joel has been fighting for years.
While I only know Joel digitally (meaning “virtually,” and having nothing to do with fingers), he had always been a wee bit on the snarky side. Like me. Smart and opinionated, he expresses himself with sarcasm and makes his points from the orthogonal aside. If I know this, David must know it far better.
I guess it wore on David, who related private communications between lawyer and defendant in his moving papers to show that Joel was not merely non-compliant, but to suggest his snark should be taken literally and reflected a hostility toward Gross. No one who has spent a few minutes around Joel would buy this, but it served to show that Joel had a bad attitude. Of course, old friends talk to one another like old friends, but when you want to make a point, details like that are easily ignored.
There was likely no lawyer in Minnesota who Joel felt would be more trusted, more caring, than David Gross. It’s not that he was wrong in placing his trust in David. It was that the relationship between the two was close. Too close. Much too close. Just as a wife can’t perform surgery on her husband, a dear friend can’t hold the responsibility of representing a dear friend. The demands of detachment are too great.
This isn’t to say that a lawyer and client can’t maintain a personal friendship, camaraderie, and still have a viable professional relationship. But it requires the lawyer to be capable of stepping back, away from the feelings that are shared between friends and separating his personal feelings from his professional service to a defendant. It has, and can, be done.
Joel hurt David’s feelings. Given that David was sucking wind on his fee, and was suffering for his relationship with Joel in the course of Joel’s battles against others in the gun community, it would have definitely been wiser for Joel to have been more compliant and sensitive toward David. He could have been a better client, and likely would have been had he not thought that David, his dear old friend, would understand.
But Joel was still the client, and David still the lawyer. At least on paper. And as the lawyer, it was incumbent on David to stand on higher ground, step back from any hurt feelings of friendship and put the representation of his client ahead of his feelings. This, he could not do. They were too close.
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What a cluster.
While I would not have made the purchase myself, if Joel has a payment agreement with his lawyers, and the payments are being made according to that agreement, then his lawyer should not have any say or “hurt feelings” over the rest of his client’s expenses.
It’s frankly none of his business, unless the payment terms have been violated.
Things like “payment terms” and “agreements” are the stuff of business and professional relationships. They are not the stuff of friendship.
The fact that Joel has a legal fund, but has refused to pay David a penny since February AND told David he could collect by putting a lien on his house and waiting to sue the estate may have something more to do with David severing the relationship than just the guitar.
Or the fact that not a penny in the legal fund has been used for any purpose other than payment of legal fees and bail, and that there was no unpaid bill, because David hadn’t billed Joel, might have something to with it. As for putting a lien on his house, that was a snarky response to security for fees if he was worried about not getting paid.
Think first. It’s always a good idea.
Now the fat SOB is going to get what is comming to him. Some of us have been waiting for that for YEARS.
This whole thing is just sad. No one knows the MN law better than these two, and in many ways they’ve been a very effective partnership for good in this state for many years. I recently took my permit renewal class from Joel and would recommend him to anyone as a teacher.
I wish them both the best, and I hope they can mend fences.
I used to work for a firm that kept a social worker on staff so that he could that the heat of that “friend” role (as well as provide mitigation assistance, etc) while leaving the attorneys free to do their jobs. It seemed like a solid model at the time.
Me too. I think very well of both Joel and David, and believe that they will come to realize that they are both more effective working together than apart.
That model works sometimes, especially for indigent defenders. It can also create problems when the social worker’s efforts are confused with legal advice. The two aren’t always on the same page.
I gather Joel’s been screwing up your coconut sales? You would certainly sell more coconuts if that fat SOB didn’t keep telling people that your coconuts suck.
This situation must feel terrible for both Joel and David. I find myself wondering a little bit, though, if a different attorney might end up as a better arrangement for Joel in the end even if there is no way Joel (or maybe even David) could possibly see that right now.
I say this because the situation and charges facing Joel are obviously highly ideologically charged. David’s involvement with the same ideologies might present the temptation to favor the ideology over the client. I’m not a lawyer, and I don’t know the best likely outcome for this client. From the facts that have been made public, though, I fear he may have trouble beating the misdemeanor charge, unfair as it may seem (though I sincerely hope he does), at least at the trial court level. While I would really hate to see Joel or his future attorney throw in the towel on this one, if the prosecutor offered to drop the felony charge and recommend no jail time in exchange for a guilty plea on the misdemeanor, what would then be in Joel’s best interests? Keep fighting for the “righteous” acquittal that Joel and justice deserve, or take the deal and spare Joel the possibility of much further harm?
I have no reason to doubt David’s abilities as an attorney, but this kind of situation is just begging for distance and objectivity — just the things that don’t comfort the client right now but may prove crucial for a better result.
I suspect you’re quite right, and a new lawyer, detached from the frienship as well as the politics, would be helpful on many levels, and for both Joel and David. I doubt that Joel has any plans to throw in the towel. He’s just not a towel thrower.
So was David supposed to refuse the case? Refer it to another attorney? If David told Joel “don’t worry about paying me” then he had no right to complain about not getting paid. If Joel said he’d pay David but didn’t have the money, then David should be upset. I don’t see the problem with them being friends; it seems like David is being a passive-aggressive baby who was too afraid to ask for money and now is upset he’s lost out on money that his friend had in retrospect.
Don’t forget that lawyers are also humans, and can act and react too emotionally when they’re too close. That’s why being friends is the problem, not because they are friendly, but because friendship can impair the detachment needed to handle what would be perceived as slights between friends. Every lawyer has irksome, noncompliant clients, and we deal with every day without it causing any particular trauma. But then, that’s because the relationship is one of lawyer/client rather than friends.
“Don’t loan money more money to a friend than you’d give him as a gift – since it might just be a gift,” has worked for many. Seems the same advice applies to legal services.
You know how you go out to lunch all the time with a friend, and you take turns picking up the check, and you start to notice that you’re picking up the check a bit more than he is, but you’re pretty sure he isn’t doing it on purpose, but sometimes he orders an extra cocktail, and it’s not a lot of money, but he still lets you pay, and you hate to say anything because it seems so petty, but it’s really starting to peeve you… It sounds like the situation between Joel and David is kind of like that times a thousand. Maybe a professional mediator could untangle it and figure out who’s at fault, but the most important thing is to realize that it’s not working and something needs to be done to fix it or end it.
It always has. What’s interesting is that had this happened between lawyer and client, and client burned lawyer (which happens every once in a while), lawyer would handle it without any angst or emotion. It’s just money. You win some, you lose some. No big deal.
But a friend, well, that’s different.
Your analogy is on target, but by the time the relationship spills onto the floor of the courtroom, it’s time to find a new lawyer. They can have marriage counseling later, but right now he needs a lawyer, not a buddy.
Joel has gone off the deep end. Period. The issue is not the guitar it’s the concept.
[Edit. Note: Balance of comment deleted. If you don’t have the balls to give your full name, then you don’t get to talk about all your inside knowledge and feelings. Cowards don’t get to spew.]
Frank,
Will the people of MN enjoy more freedom if he is found guilty, or less?
This is one of those cases that you’d mentioned just recently: Everyone from a distance siding with the defendant wants him to fight and win. A plea may be much more viable for him personally though. I hope he fights it.
This is also off topic but may I just add that Sgt Palmer is a feckless piece of reptilian excrement?
Really? Given that Joel scares me and makes me tremble and shake, and I have such a tiny little penis, you expect his detractors to paint targets on their backs themselves?
[Ed. Note: I’ve assisted this anon commenter to express himself properly by editing this comment to reflect his true purpose. Here’s the deal: We all know that Joel has made enemies along the way, but if you don’t have the balls to use your real name, then you don’t get to take pot shots like little pussies from the shadows. No wonder you need guns to man up in real life.
As for the handful of other Joel-haters, same goes for you. Want to spew? Leave a real name and verifiable email. Can’t fit into big-boy pants? Tough nuggies.]
Stay classy.
Yup. Hope you’re comfortable in your hole. If you need anything, let me know.
The District Court granted the motion.
Attorney David Gross is no longer representing Joel Rosenberg.
There was no other choice.
If you are not aware, this is all moot. Joel died last Thursday of natural causes. David is mourning, too. There were many issues other than money, but they no longer matter, either. Many of us believe that Joel knew his remaining time was short. If any of you want to help, his family can use whatever you wish to contribute. RIP friend – you really are free now.
While I appreciate your helping Felicia and the girls out, Laurie, you might want to check first whether it’s appropriate to make a comment like this. In this case, it’s not, and actually quite inappropriate to solicit here.