Got a call from a law prof who was considering bringing a Qui Tam action (whistleblower suit) against a New York 18-B lawyer. Section 18-B of the County Law provides for private lawyers to represent the indigent and be compensated by the county.
She told me of the things this lawyer did, pretty outrageous but for the fact that this was a common, bordering on pervasive, problem. This shocked the prawf, who asked why other lawyers and judges don’t end this atrocity, which is not only tantamount to stealing, but extremely damaging to the client. The short answer is because lawyers don’t want to rat out someone on their team. Sometimes the thief is a friend. Sometimes he’s just a nice guy, aside from the fact that he’s a thief or incompetent.
And then there is the best, and worst, excuse: other lawyers know. Judges know. If they say nothing, why should a lawyer on the same team? Why should someone on the same side evoke the ire of his teammates when others don’t bother?
A few years ago, then-NACDL president Lisa Wayne wrote about this in the Champion, where she decried criminal defense lawyers being critical of their “brothers and sisters”:
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.”
Can’t we just blame cops, prosecutors and judges for all that ails the system? I explained to the lawprof that there are some criminal defense lawyers, particularly public defenders, who kinda hate me for writing mean stuff. Can’t we find something nice to say about the people on our team?
Some lawyers think it’s wrong to be critical of our own. Certainly, there is no shortage of bad things to write about the others in the system. Must I criticize members of my team?
Here’s my thinking (and you may well disagree with it, but I don’t give a damn): Much as there is plenty to criticize about cops, prosecutors and judges, the criminal defense bar has huge problems of its own as well. If they’re not addressed, we perpetuate our role in the system sucking. It would be wholly unprincipled to throw stones at others while failing to do the same at lawyers on the defense side. Defendants are no better off being screwed by a lying cop, a dishonest prosecutor, a biased judge or an incompetent defense lawyer. Any one will do.
Criminal defense lawyers have a strong tendency to spout words of compassion and social justice. It’s an occupational hazard. Forget that it’s often foolishness, but some feel the need to sing Kumbaya in three-part harmony. These lawyers thought I was horrible in my “harsh” failure to support Public Defender Zohra Bakhtary in the pissing match with Vegas Justice of the Peace Conrad Hafen.*
Bakhtary’s union backed her, just as police unions back cops. Nothing surprising there.
“A lot of our membership was calling for a response, so we thought this was the way to go,” said union president Ryan Bashor, a public defender himself. The union represents public defenders in collective bargaining and until now, had never taken such a public stand in protest of a judge’s conduct, he told Law Blog. “We couldn’t let this go by,” he said.
But what was surprising was this infantile attempt at snark by the new National Association of Public Defenders.
Is it ok if I call you Conrad? I noticed that you refer to the attorneys appearing before you by their first names, so I thought, since we’re all officers of the court here, that it would be ok to leave off your honorifics.
The purpose of this childish indulgence is obvious, to bring the judge down a few pegs. Just like the eggboys on the twitters, who hope to goad adults into a spat. This will certainly engender respect for the public defense function from the judiciary by behaving like a sixth grader. From there, it gets tedious with a few pointless pedantic paragraphs about Cicero, then finally tries to make a point.
I was thinking about all that while I was reading about your recent decision to handcuff an attorney in your court and put her in the jury box while you berated her client. I’ve never practiced before you, but your record seems to speak for itself. You were a career prosecutor before taking the bench. While you were chief of the Public Integrity Unit (that’s sort of the blind leading the blind, eh?), you filed vague misappropriation charges against a sitting Lieutenant Governor without disclosing that your boss, the District Attorney, and her husband were hosting fundraisers for the Lieutenant Governor’s political opponent at the same time. The charges were later dismissed by the judge, but only after nearly three years of “investigations” and court settings.
As a judge, you have a history of degrading attorneys in your courtroom, including telling male attorneys without ties that they could either put on a children’s clip-on tie provided by you or have their case put at the end of the docket or rolled to the next day. I’m sure you thought that was a cute trick, but for a client who is missing work to make a court appearance, that isn’t funny.
The only thing missing is that his mother wears army boots. He was a prosecutor before becoming a judge? Well, that proves . . . nothing. Why not ask the better question of why male attorneys were appearing in court without a tie in the first place, and then so routinely that he had a routine to deal with it. What lawyer appears in court without a tie? What judge doesn’t make a point of it?
You decided you would humiliate Bakhtary as well as her client. You looked down at the slim, polished young woman in front of you who was trying to tell you something you didn’t want to hear. She was interrupting your show. What did you think? Did you wonder how else a man like you would be able to control a woman like her?
Wait. Why point out she was “slim,” then accuse the judge of sexism (because everything is problematic these days)? Women PDs aren’t subject to the same rules in court as men? And yes, she was interrupting his show, because he’s the judge and gets to direct the show. That’s how court works. That’s the only way court works.
But the more judges like you do things like this, the more attention is drawn to us, the growing and increasingly united front of indigent defenders who stand up for the rights of the least of our brothers. The more this happens, the more the public gets to see how rigged people like you have made the system, and how badly things need to change.
These inspirational words will make some deeply passionate lawyers’ chests swell with pride. It will make others cringe at the idiocy. And it will, perhaps, embolden some other lawyer to conflate “zealousness” with being pointlessly offensive, at the client’s expense, so maybe they too can be a victim of such petty tyrants who rig the system by not allowing themselves to interrupted by slim public defenders. A whole new class of victim!
And if no one calls out this bullshit, the deeply passionate in the criminal defense bar will allow their lack of impulse control and tactical blindness to guide their conduct, hoping to have their team rally around them and console their victimhood. I was a strong proponent of the creation of the NAPD as the vehicle to coordinate a national mission of adequate funding for indigent defense. To see it shoot its wad on such nonsense is painful. If this reflects the level of intelligence running the NAPD show, then it’s a joke.
If public defenders want to be respected, and they should, then they must earn respect like everyone else. That means being great lawyers, as should all lawyers. That means knowing when to stand up for your own, and knowing when to not make police unions look fabulous in comparison. But mostly, it means grasping that this is not about our feelings, but the client’s life. Putting on a shitshow to support a player on your team who just whiffed makes us worse.
*Whether JP Hafen was right or wrong, appropriate or not, in calling a lawyer by her first name has no bearing on whether Bahktary’s conduct was proper. While logic rarely shows its face anymore, indulging in logical fallacies to rationalize behavior is beneath the minimum level of thought for sentient beings.
More importantly, even if Hafen had done something truly outrageous, like call Bahktary “little lady,” the only ethical reaction is to take care of the client now and grieve it later. What you do on the twitters is not a guide for how a lawyer conducts herself in court.