In the December issue of the Champion, National Association of Criminal Defense Lawyers president Lisa Wayne pounds the pulpit about “pious punditry.”  It’s time to stop criticizing our “brothers and sisters.”

Who needs prosecutors and a cadre of law enforcement critics when all you have to do is flip on any mainstream media outlet and watch our colleagues chastise each other with armchair criticism? We are correctly indignant when others bash defense lawyers for defending unpopular clients, but we should not assume that we have some special license to criticize our brothers and sisters of the defense bar.

This pious punditry usually takes the form of a disapproving observation concerning legal strategy that is likely to result in a disaster for the client. Comments sometimes focus on pretrial pitfalls, with defense lawyers pointing out inadequacies in defense tactics or fronting potential strategies that might be employed by the defense without thought to whether the government has considered the theory. I have even heard scathing remarks regarding the lack of trial skills exhibited by the defense lawyers handling the case.

Wayne is talking about lawyers taking to the airwaves at the drop of a hat to offer some pithy yet controversial attack on a fellow criminal defense lawyer.  Her first point, that CDLs are all too happy to race to the studio at the slightest hint of airtime despite having no clue what they’re talking about.

My close friend and respected NACDL colleague Jeralyn Merritt taught me early on that if you decide to comment on a high-profile case, you should immerse yourself in the case as if it is your own. Read as much as you can about the case, including pleadings, affidavits, and warrants. This kind of commitment requires not only a great deal of time, but pushes you to become vested in the case in a fashion that parallels your devotion to your own cases. This plan of action makes you more cautious in your approach and remarks. Another good rule of thumb is to reach out to the defense team. If you have garnered the respect and credibility of a colleague, you may be a more effective public educator than the lawyers immersed in the case. Lawyers in the grips of a media-frenzied case, particularly with a client that everyone loves to hate, will always appreciate a friend.

It’s long been a problem that lawyers show up to talk about cases where they’re no more knowledgeable than the guy who drove them to the station, but ego, the chance to get on television no matter how little they know, compels them forward to spout words on air.  Sure they may have no greater information to share than anyone else, but if they refused the gig, how could they twit about what an important media pundit they are?

But then again, the demand for information is immediate, not two weeks from next Tuesday.  Wayne writes about Jeralyn Merritt, whose blog, TalkLeft, is on top of legal/political issues in real time.  No doubt Jeralyn, as would we all, love to be able to immerse herself in every detail of every subject of every post.  But it’s not possible, nor would anyone want it to be required as no timely commentary would ever be available.

Still, the point that anyone who agrees to speak have a clue is a good one, and if a CDL has no greater knowledge about a case or issue than what can be read in the newspaper, he’s got nothing to offer that will enlighten anyone.  As a rule, make no one stupider for having listened to you.

But Lisa Wayne doesn’t stop there, and starts down a path that leads to problems.

Internal defense bar criticism is not limited to media outlets. It crops up at NACDL lectures, social events, and on listserves. Why do we feel the need to bash our own? Are we jealous, arrogant, or just looking for 10 minutes of fame? We have all done it, yours truly included. I have rolled my eyes and remarked out loud, “Can you believe she would say or do that in this case?” We are ego-driven beings. It is why many of us are attracted to litigation. Yes, I said it. But, more importantly, despite craving attention, we are a group of compassionate, thoughtful, and loving human beings. I have no doubt that my colleagues do not wish to say anything that would move any client closer to a guilty verdict.

My description would be more like feral cats. And as everyone knows, feral cats aren’t easily herded.  Not even “compassionate, thoughtful, and loving” feral cats.  And indeed, few CDLs want to say anything that would encourage a verdict of guilt, though the implicit connection between “bashing our own” and helping to convict a defendant is hardly clear.  What an NACDL president isn’t allowed to say is that, while some criminal defense lawyers are “among the best,” others aren’t. Sometimes, CDLs screw up. Sometimes, they do and say just awful things.  And sometimes, this becomes the subject of criticism.

Rather than call for the “brothers and sisters” to lend a hand, lift up those who are blowing it and help them to better serve their clients, Wayne finally arrives at the last stop on the road to perdition.

Let’s take an oath to stand together, side by side, united in our goal of advancing a criminal justice system that provides effective representation for every client. I can imagine my mother, Juanita Wayne, quoting dialogue from Bambi on this one: “If you don’t have anything nice to say, don’t say anything.”

If only there was a model we could follow to achieve this internal cabal to conceal our faults and protect each from their consequences.  Like, say, the Blue Wall of Silence?

Wayne is absolutely right to criticize criminal defense lawyers who bash others for sport, or those who curry media favor so they can impress their twitter followers when they have nothing to contribute.  But she steps over the line, way over, by suggesting we employ a McCarthy-like loyalty oath to compel us to circle the wagons and either speak the party line or remain silent.

What distinguishes criminal defense lawyers is our willingness to think critically, about ourselves as well as others, and gives us the legitimacy to offer insight, whether pleasant or not.  Not ignorant talk.  Not self-promotional speech.  But honest, well-conceived and thoughtful. And if that sometimes takes the shape of criticizing our own, that’s the price of honesty.

H/T Noah Clements