Unless you’re an amoeba, you can’t be in two places at the same time.

–Court Officer, Part 70, Supreme Court, New York County

I remember being told this when I was a young lawyer, complaining about judges demanding that I be in their courtroom rather than another judge’s courtroom. The problem wasn’t the laws of physics (which, contrary to the iPhone commercial, are not merely general guidelines), but that I undertook responsibilities I couldn’t perform.  Didn’t these judges get it? How could I make a living if they kept expecting me to be in their courtroom when I had a client in another? 

At the time, my concern was how I could represent two defendants who were required to be in two places at the same time.  Or to be blunt, how I could get paid to represent both defendants, even though the logistics were in conflict.  

I never forgot the lesson.  My interest in getting paid neither trumped my responsibility nor the laws of physics.

Curiously, some lawyers and clients prefer not to consider the logistics as they get in the way of their dreams.  For the lawyer, it’s the dream of taking on as many cases as possible, without regard to the time necessary to fulfill his responsibilities. For the client, it’s the dream of having a lawyer always there for them, never busy doing anything else.  It’s a fantasy for both.

There are some immutable realities to the practice of criminal law.  It takes time to do competent work.  The obligation to be in one place precludes the ability to be in another.  While thoughtful planning can make the representation of numerous clients viable, more often lawyers solve the problem by just doing shoddy work. Or no work at all.  Flitting into court unprepared. Offering change-the-name papers. They take pride in shooting from the hip, as if it adds to their machismo.

There is no virtue to volume.  There is nothing to be proud of when you accept a fee from a client and fail to do the work necessary to earn it.  And yet there is no shortage of lawyers and clients who either can’t figure out that this is wrong, or are in denial that this is happening.

The key to fulfilling our responsibility to a client is availability.  This means that we understand what is necessary to perform the work required by our representation, and we accept the responsibility to do it.  And this means we limit the matters we take on so that we are available to do the work for which we’re paid.

Everybody hates this.  Lawyers hate it, because it means they can’t take whatever money is in the pocket of every person who shows up at their office. Clients hate it because it means they have to pay for the time they demand of their lawyer.  It’s not that they don’t want the lawyer to drop everything and be available for them at all times. It’s just that they don’t like to pay for it.

Some years ago, a rapper sought my services.  I gave him a healthy fee for representation, but he was indignant.  He wanted me to be his lawyer, but his alone. He wanted me to be available to him at all times, and have no other obligation, no other client, but him.  I told him what it would cost him if that was what he really wanted.  He wasn’t pleased with that fee either, as it was completely disproportionate to the services he needed.  I explained that he didn’t need my total availability, but if that’s what he truly wanted, he would have to pay what I would otherwise earn over the period.

The point is that the intersection of fulfilling our responsibilities as a lawyer and maintaining a law practice isn’t a matter of magic or aspiration. It’s a matter of realistically appreciating the amount of time one needs to dedicate to the representation of a client, and maintaining one’s availability to do so.  On the other side of the equation, it’s a matter of the client’s willingness to pay for the extent of availability necessary to do the work the client requires.  Both sides of the equation have to balance or the representation fails.

Don’t take on more than you are capable of handling properly.  If a matter is going to demand your full attention for a period of months or years, then you can’t accept other matters that will make it impossible to fulfill your responsibilities.  At the same time, unless you have a trust fund or children who eat only occasionally, the compensation has to match the demands on your availability.  

This isn’t rocket science, although a working knowledge of the laws of physics helps.  Yet, ignorance of these basic ideas seems to be rampant as lawyers take on more than they can possibly handle competently, and clients want to pay far less than the time and availability for competent representation requires.  Something has to give, and whatever that turns out to be, somebody is going to be unhappy about it.

Most of the time, what’s lost is competent representation.  If you’re a defendant sitting in a courtroom wondering when, or if, your lawyer is going to show, this is why.  And if you’re the lawyer touting how busy you are and how many important cases you’ve taken on, far too many to handle properly, the message you’re sending is that you care more about making money than representing your clients.