While private criminal defense lawyers and public defenders share a great many attitudes toward the system, there is one hole, big enough to drive a stretch limo though, that separates what we do and how we look at our respective roles.   Mark Bennett talks about a post by a public defender at Preaching to the Choir that began as a rant against Jose Baez.

It seems that Baez was writing a book about his successful representation of one of the most notorious cases of the decade, Casey Anthony.  It raises some very real questions as to the propriety of a lawyer writing about a client, which seems impossible to accomplish without breaching confidence.  It may be that Anthony approved it, and that she owes Jose Baez enough to let him have a free hand in writing a book and making some money off the case.

But the aspect of the rant that caught Bennett’s eye, was this:

I don’t begrudge my colleagues in private practice from earning a living and charging a fair fee for their work. But it makes me angry to see clients forced to sell cars, homes, land, or whatever else they can to pay lawyers who then join country clubs and buy BMWs.

Had the intrepid PD stopped at her anger about seeing clients forced to sell cars, homes or land, there probably wouldn’t be enough reason to write.  We share the pain of watching the accused forced to divest themselves of assets, accumulated from years of hard work, to fight false or spurious accusations.  Only a horrible system would compel such a thing.  Of course, not all accusations are false or spurious, but that’s a story for another day.

It’s the second  part of the sentence, that the money is used to pay lawyers who then join country clubs and BMWs.  This is a recurring theme in the interrelationship between public defenders, who perceive their duty as not merely defending the accused, but doing so at no cost to the accused, so that they don’t exacerbate their client’s misery.  Bennett addresses this:

As a lawyer who has prospered by defending people (doing well by doing good), I disagree. I suspect that it’s really easy for someone who’s getting a government paycheck plus benefits to say, “I would represent all my clients for nothing (or next to it),” but that’s not what she is in fact doing, and it’s a position divorced from the reality shared by the rest of the criminal-defense world.

Imagine that I represented everyone for next-to-nothing. I would be choosing a working-poor existence for myself and my family. What good would come of that? I might feel smug and sanctimonious, but I couldn’t help more people: even with my substantial fees I have about as many clients as I can effectively represent.

While our intrepid PD may not be getting rich off her job, she does get a regular paycheck and health insurance, something few private lawyers are familiar with. And most private criminal defense lawyers aren’t pulling down much more, if as much, as the PD these days.  Don’t let the BMW fool you. It’s leased.

Where the concern goes astray is that criminal defense lawyers are not priests of the law. We may take an oath of loyalty to our clients, and if we stretch it a bit, an oath of loyalty to the Constitution, but we surely take no oath of poverty. 

When times are tough, no one pays our rent or puts food on our table.  When times are good, we are absolutely entitled to enjoy the fruits of our labor, just like anyone else.  As recently discussed, there is no shame in getting paid for our services.  As a corollary, there is no virtue in getting screwed out of a fee.  Any PD want to shed a tear for the private lawyer who takes on a paying client only to get burned?

This is not to say that private criminal defense lawyers should deceive clients who are otherwise incapable of retaining counsel that they will lose if they stay with the public defender and win if they go with a private lawyer.  As we all know, there are excellent PDs and awful private lawyers; the manner of getting paid has no bearing on the ability of the lawyer, and PDs often have an internal support system that dwarfs what private lawyers can provide.

On the other hand, PDs carry ridiculous caseloads, and can’t provide the level of access and personal attention that private lawyers (who aren’t doing a volume practice) can offer.  Given the neediness of defendants and their families in such unfamiliar terrain, the ability to speak to someone who knows your name can be enormously important and a great comfort.

As Bennett made clear, to the extent the system sucks the working poor, or even the working not-quite-poor-but-doesn’t-have-a-spare-$50k-lying-around, dry, it is not the criminal defense lawyer who caused this problem or who is responsible for shouldering its burden.  It’s not that we take joy in our client’s being forced to sell a house to pay for counsel, but that we work for a living too.  There is nothing wrong with working for a living, and charging for our work.

The final clause of the public defender’s rant, the legal fees are squandered on such frivolities as country clubs and BMWs, making it anger-worthy that we render defendants destitute so we can enjoy a life of luxury. is a well-worn arrow in the socialist quiver.  What the money is spent on isn’t relevant. If it’s shoes for the kids or a tip for the caddy, the new rims for the M5, so what?  It’s not up to anyone to approve of how earned income is spent provided the spender isn’t otherwise on the dole. 

There may be some element of envy in this screed, or the sanctimony of the closet communist, but it feeds the misperception that a lawyer who has fulfilled his obligation to his client, who has reached an arms length agreement as to his fee, and who has been paid for his services, is still under the obligation of living a sufficiently austere life to justify earning a living.  It just ain’t so. 

No one is owed an apology for earning a living and, if it happens to work out that way, being successful at it. This is America, and we are allowed to be successful.  And there’s no shame in success, either.