Words of Consent

Over at Volokh Conspiracy, Orin Kerr posts about a decision, State v. Meekins, 2009 WL 4876866 (Tex.App.-Amarillo 2009). where the validity of a consent search is ultimately determined based on the nuance of language.


A police officer stops a driver named Williams for a traffic violation. After checking out his driver’s license, the officer asks the driver for consent to search the car:

That solicitation continued over a period of about a minute and included approximately six requests. The officer asked that many times because appellant would not commit one way or the other. Indeed, captured on the video of the event was the officer informing appellant that he was being asked a “yes or no” question. Furthermore, the last request propounded to appellant consisted of Williams asking: “Do you mind if I look?” To it, appellant answered “yes,” according to the officer. Upon so replying, appellant was ordered to exit the car.  

Held: The car cannot be searched, as this exchange cannot satisfy the standard of clear and convincing evidence Texas law requires to prove that consent to search was freely and voluntarily given.


The problem, of course, is that the answer “yes” to a “do you mind” question is a negative rather than a positive under the ordinary rules of construction.  Apparently, this rule applies in Texas as well as the United States. 

My impression is that Orin see this decision as a curiosity, a decision of interest.  I see it as a brutal reminder of the failure of testimonial evidence by police officers at suppression hearings.  What distinguished this case was that the officer’s words were captured on video.  Absent video, this is how the testimony on cross-examination would have gone:


Officer:  I asked the defendant for consent to search his car and he gave it to me.

Defense Attorney:  You don’t recall the exact words you used?

Officer: I said, “do you consent to my searching your car,” and he said “yes”.

Defense Attorney:  You didn’t say “do you mind if I look?”

Prosecutor:  Objection, asked and answered.

Judge: Overruled. Answer the question.

Officer: I said “do you consent” and he said “yes”. just like I already told you.

Defense Attorney: Nothing further.
How do I know what the testimony would be?  Because I’ve heard it too many times.  And there’s not a thing that can be done about.  Without any means of proving the words, the exchange, the scene, we are left to the police officer’s description of what transpired between him and the defendant.  And you can bet that it’s going to be presented as a fait accompli.  Aside from the rarest of instances, where an officer takes the stand and testifies to an exchange that actually involves the potential for a real exchange, there is no question that can be asked that will elicit anything other than the officer’s conclusory testimony.

The only way to challenge this testimony is to put the defendant on the stand for a swearing contest.  The hope, if you can call it that, is that a judge might be inclined to believe that defense counsel wouldn’t be so foolish as to expose his client to cross-examination unless it was worth it, that the testimony is true.  While this can happen, it’s still a long shot.  A very long shot.  Few judges will take the chance of siding against the cops.  They almost always go with the odds.

These hearings often do grave harm to a lawyer’s forearm.  That’s because the defendants, hearing the officer’s testimony, grab hold and squeeze.  They squeeze tightly.  The blood stops circulating.  Tingling begins, and then fades as the hand becomes lifeless.  It’s amazing how strong the grasp of a person who forced to sit silently as a cop lie on the stand can be. 

One might suppose that the colorless, flavorless, unnatural exchange offered by the officer’s testimony might cause a judge of reasonable intelligence and experience to question whether the testimony is factual or conclusory.  No cop has ever asked “do you consent?”  It’s invariably a game, where the players use such ploys as “you must be hiding something” and “I’ll be happy to get a warrant.”  And yet, the testimony comes out the same at the suppression hearing no matter how many times its presented as a conclusion.

So where do we learn that real life doesn’t mirror the police officer’s testimony?  From the rare video, for one.  From witnesses, especially neutral witnesses when the officer mistakenly allowed people to be close enough to hear his words, for another.  Unfortunately, neither of these scenarios happens frequently enough to alter the regular testimony or make the judge wonder whether he’s backing the wrong horse.  Most of the time, it’s just the cop and the defendant.  Who you going to believe?

It’s heartening to read about the decision, where the court parsed the language to recognize that the vagaries of a question fail to satisfy the requirement of demonstrating free and voluntary consent.  It might have been more heartening had the court never reached the 6th attempt by the officer to obtain consent, the 5 prior failures to give it being more than sufficient to demonstrate that the defendant did not wish to consent, and that the continued pressure by the cop to get him to submit to the shield vitiated any possibility of free and voluntary consent.  But I will take a good decision as it comes, even if it could have been better.

It’s disheartening, however, to think of the vast majority of suppression decisions where there was no video recording of the words spoken, and where suppression is denied based on the conclusory testimony of the officer.  This one win only highlights the thousands of losses where there’s no video, and courts happily defer to the facile testimony of the officer when denying that any constitutional violation occurred.

Popularity and the Price of Teacups (Update)

This has nothing to do with real popularity, but with the pseudo-popularity that comes with the attendant “benefits” of things happening with a blawg, or a blawger, that aren’t anticipated.  Whether it’s being sued by a dog-shooter because you’re viewed as the easiest mark around, or praised at the Association of Professional Responsibility Lawyers Conference for highlighting impropriety, you never know what the day will bring.

I received two surprises yesterday.  The first one, via Mark Bennett, was that there was a new scraper in town.  This one called himself , with the URL of expert-legal-advice dot com.  No name is mentioned at the website, but the Whois reports that its run by Phillip Vadala out of Sydney, Australia. 

The site offers blurbs from a mere seven legal blogs, Above the Law, How Appealing, Life at the Bar, SCOTUSBlog, Volokh Conspiracy, WSJ Law Blog and Simple Justice.  Click through to read the full story, and you’ll find the complete image of the blawg, from title bar to side bar, post included.  Except it’s not the blawg.  It’s copied onto an expert-legal-advice URL.  Yet another entrepreneur who is of the view that the content created by others is a great thing to sell, much like the USLaw dot com scam before it.  Only this time, there’s a mere seven blawgs being scraped. 

Despite my having sent a very nice email over to explain that a business model based upon stealing content from others isn’t really a good thing, it’s still there.  Maybe the Wall Street Journal will do some heavy lifting this time around. [Update: I’ve heard from Phillip, who was unaware that scraping was wrong, and, in a very cooperative fashion, agreed to remove the full posts from his website and link back to the original posts instead.]

Then I learned from a commenter that there’s a forum called JD Underground, which apparently is a website for young lawyers to complain to each other about the misery of their lives and the law.  For anyone who still doubts the existence of the Slackoisie, this is living proof.  It’s Slackoisie Central.

The commenter asked whether I was aware of a discussion about me over there.  About me?  Why the heck would these kids want to talk about me?  Well, for whatever reason, they did, and there was a thread at the forum called Is scott greenfield a JDU poster?

While I’m honored, in a peculiar way, that these young lawyers care enough about what an old lawyer has to say to even ask the question, but I’m afraid that the answer is no.  The thread itself is disheartening.  So many fragile little teacups with so little understanding.  As another commenter here asked, was I upset that they were calling me “mean” rather than curmudgeon?  Well, it wasn’t my first choice, but if that’s the way my views are perceived, there isn’t much I can (or care to) do about it.

I understand only too well that young lawyers are characterized by narcissism and entitlement, that they grew up in a world without criticism and therefore see anything critical as mean and bitter.  It’s sad that they can’t connect the dots, that the misery they complain of may have a little something to do with their facile external excuses for all the failure and disappointment of their brief lives.  But they can call me any names they like.  Maybe the discussion, superficial and immature though it may be, will eventually have an impact on one of them and they’ll stop whining and starting doing something to improve their lot.  It’s a stretch, but it could happen.

The point of all this is to contrast the experience of a somewhat more experienced blawger with the new ones who, like my fragile teacups at JD Underground, cry, lash out or run walk away when they aren’t met with appreciation and warmth.  It’s not just you.  You aren’t special, singled out because you are new to the blawgosphere and beaten to a pulp by the old guys.  It’s all of us.  Me and you.  We are all subject to the scrutiny, whether we’ve been here for years or minutes.  And those who can’t take it won’t make it.

Over at WindyPundit, Mark wrote a tongue-in-cheek post the other day following my effort to explain to new blawgers that their marketing patrons were less than forthright when they induced them to start a blawg and rake in the bucks.  The title of his post is Surviving Scott Greenfield, an homage of sorts.  If I was inclined to be concerned about maintaining a carefully crafted internet persona, I might be troubled by being named the poster boy for maligning new bloggers.  But I’m not.  Windy offered 8 pieces of advice, and it well serves new blawgers to read them.  That I was used as the vehicle to make a larger point is how the deal works.  I write stuff and it provides the fodder for others. 

No one in the blawgosphere is immune or above either criticism, disagreement or commentary.  We are all the fodder for each other’s posts because ideas feed on themselves. That’s how it should be.  I am quite content suffering the slings and arrows, as well as shooting off a few of my own when it seems appropriate.  I don’t cry about it.  I don’t whine about it.  And, frankly, it’s far better that some Slackoisie think of me as a grumpy old meanie than not think at all.

For crying out loud, you little teacups, suck it up, write what you think and buck up for the storm that may blow your way.  It’s either that or run away.  Knowing that the storm can strike at any moment will push you to think a little harder, write a little better and contribute something a lot more worthwhile than the crap that masqueraded as ideas up to now when you chatted amongst your Slackoisie pals and thought you were solving the problems of the world by blaming everyone out there but yourselves.  Take a stand and then prepare for the worst.  Stop being a teacup.

Suing The Blogger, Low Hanging Fruit

It was covered all over the mainstream media.  The video was on Youtube.  A petition circulated across the internet calling for the shooter to be prosecuted, with more than 5400 people signing on.  This all happened because Christopher Comins tried to kill two dogs by shooting them at point blank range.  Fortunately, Comins has lousy aim and dogs lived.

So what does a shooter do when he’s caught on video and properly castigated everywhere?  He sues a blogger.

Matthew Frederick VanVoorhis has a blog called Public Intellectual, where he posted about Comins’ dog-shooting.  The title is Christopher Comins: Barbarian Hillbilly Dog-Assassin (w/Friends in High places). My guess is that Comins objected to being called a Hillbilly.  I bet Hillbillies objected to being associated with Comins.

The post is harsh.  Then again, trying to murder dogs, especially when the owner is screaming to stop and you’re close enough to see the collar around their necks, deserves some harsh words.  But Comins is a businessman.  He’s got both the wherewithal and motivation to make somebody pay for his getting caught.


Christopher Comins owns CustomFab, which builds special steel-pipe products for Walt Disney World and NASA. Moreover, Comins and Carter attend prayer groups with Orange County Mayor Rich Crotty (in fact, Carter and Mayor Crotty have made the news before for shady land deals). Crotty was appointed Mayor by Jeb Bush in 2001. Additionally, Comins has generously funded the Bush administration. In short, Comins is in bed with a group of folks who know how to get away with stuff. And it shows.
That somebody is VanVoorhis.  Given the scope and breadth of the attacks on Comins for his dog-shooting, only one rational explanation surfaces to explain why he picked VanVoorhis to sue for defamation.  He’s the easiest target.

Like most bloggers (as opposed to blawgers, for whom this doesn’t necessarily apply), writing is a not-for-profit venture.  We’re not talking 501(c)(3), but that there’s no money in it and VanVoorhis blogs because he chooses this medium to express himself.  It’s pure blogging, with no ulterior purpose beyond speaking one’s mind.  That makes VanVoorhis an easy target.

Now that Comins has picked him to sue, the burden falls on the bloggers shoulders to defend himself, to pay the freight to exercising free speech.  It’s the American way. Any dog-shooter with cash can sue any poor schnook who wrote about him that he wants.  After all, how many bloggers want to dump a pile of money, assuming they have pile to spare, into a defense against some crazed, but better funded, hillbilly NASA contractor.

But the news isn’t all bad for VanVoorhis.  He’s defended by one of the most vigorous and brilliant free speech on the internet lawyers around, Marc Randazza.  And Randazza isn’t satisfied to just defend a blogger’s right to free speech and fair use.  He’s going after the dog-shooter as well. 

Maybe the poor blogger isn’t quite the low hanging fruit that the dog-shooter thought he was?  Maybe, as long as there are lawyers like Randazza around.  Maybe, to the extent that anyone around the broader blogosphere isn’t aware that Christopher Comins is a dog-shooter, they will be soon because he’s decided to attack a blogger for going after him for being a dog-shooter.  Wouldn’t that be a shame?

Refer Or Recommend: The Total Attorneys Loophole

Almost immediately after  the decision issued granting dismissal of disciplinary charges against the Connecticut 5, Total Attorneys issued a press release proclaiming that the Connecticut Statewide Grievance Committee “validated” its internet advertising model.

Total Attorneys President Kevin Chern says that Connecticut has truly vindicated the company’s Internet advertising model.  “The Committee heard evidence from the state’s Chief Disciplinary Counsel and examined our business model,” he said.  “After carefully considering how consumers reach our sites, what information is collected, how territories are divided and the disclaimers provided for consumers, the Committee determined that we are not recommending attorneys but simply providing advertising.”

While I’m happy for the five lawyers who stood as scapegoats for Total Attorneys, Chern’s proclamation of validation is not merely premature but disingenuous.  So what is it that they did?

Total Attorneys is one of the magic bullet websites that allows lawyers in specific niches to “purchase” territory.  TA works Google to gain prominent page rank so that potential clients go to its websites when they are searching for a lawyer.  The clients put in their zip code and are sent to the lawyer who owns that turf.  In TA lingo, these clients are called “leads”, and the lawyer pays TA $65 for every lead who contacts them, whether they are retained or not.

The decision was based on the distinction between a referral and a recommendation.  The grievance committee found that clients were referred, but not recommended, and hence there was no violation of their disciplinary rules because the rules are limited to recommendations rather than referrals.  That’s one thin reed.

To reach this conclusion, the committee relied largely upon a disclaimer on Total Attorneys’ website claiming that this was not a recommendation.  Disciplinary counsel argued that when one, and only one, lawyer’s name comes up to an inquiring consumer, that’s tantamount to a recommendation.  The committee said no.

The decision states that “territorial exclusivity of the arrangement was not an implied endorsement and that the fees charged . . . were the appropriate costs of advertising on the website.”  The former position is dubious at best.  The latter is facially wrong.

When a potential client asks for the names of lawyers who serve a particular niche, and in return receives one, and only one, name, there can be no clearer message.  This is the lawyer to use.  This one lawyer, because they’ve only been given one lawyer.  No one tells the client that the reason is that the lawyer bought his territory.  There’s no mention of that nasty little detail.  If there was, I suspect clients would run the other way as fast as they could, recognizing how deceptive and manipulative this recommendation referral was.

But to equate paying $65 per lead to the sharing of advertising costs is absurd.  Costs are fixed.  Leads are variable.  To argue otherwise is nonsense.  To believe otherwise is just plain wrong.  The business model of Total Attorneys is to sell “leads,” those nice people who lawyers are supposed to think of as their respected clients.

While Kevin Chern’s claim of “validation” may be seriously overwrought, it’s true that the Total Attorneys advertising model wasn’t condemned.  That being so, buying up some turf from TA (and getting a free pass to the Get A Life Conference) may not result in having your ticket yanked.  But that doesn’t mean that any lawyer with a semblance of integrity or honor can now hook up with TA with a clear conscience.

There are a wealth of opportunities on the internet to engage in conduct that has the potential to bring in a few bucks, at the cost of your integrity.  Some think that words like integrity, not to mention honor, professionalism and excellence, are only used by us dinosaurs.  Bottom feeders are always looking for the get rich quick scheme.  The Slackoisie believe that the practice of law is all about what’s in it for them.  It’s up to each of us to decide what type of lawyer we want to be.  Not just our particular niche of the law, but whether we will do anything for a buck, no matter how slimy or disreputable. 

Just because the Connecticut grievance committee didn’t rule against the five doesn’t mean that we need to race to the bottom.  It’s up to each of us to select our path, high or low.

H/T Kevin O’Keefe

David DeCosta, Unsmeared

When news of his arrest hit the papers, it was a different time.  It was only about three months ago, but a lot has happened during those three months.  And Phoenix criminal defense lawyer David DeCosta, those were probably the longest three of his life.

Matt Brown was the first to post about DeCosta’s arrest for bringing drugs into the prison, allegedly to give them to his “Mexican Mafia” client.  As we now know, they like using descriptions like “Mexican Mafia” around Maricopa County.  It makes them sound particularly evil and menacing. And foreign.  The Mexican part is more damning than the Mafia part.

Matt, a young but tough criminal defense lawyer, got ripped by fellow criminal defense lawyers for posting about DeCosta’s arrest.  He was slammed hard for not writing about how DeCosta was innocent, how the allegations were lies, how he relied on a report from the Arizona Republic rather than investigate all the facts on his own.  Mind you, none of his detractors provided comments showing the merit of their claims.  Their only purpose was to go after Matt for commenting on a story in the paper, one that was quite similar to another criminal defense lawyer, Jason Keller, who had pleaded guilty to the crime.

But the poor showing by the locals in their attacks on Matt opened another door, one that spread nearly viral across the internet, about how the rest of us didn’t grasp just how bad Sheriff Joe Arpaio was.  While we knew about Crazy Joe, they were right.  We didn’t grasp the depth of the problem.  On the other hand, they didn’t grasp the depth of their misdirected anger.  Without this level of anger, however, there’s a good chance that the situation in Maricopa County would not have had the staying power to grab and hold the attention of so many blawgers and others across the country. Silver lining to the cloud.

After that, there’s been the Adam Stoddard debacle. The Judge Donahoe indictment.  The lawyer rally and the federal grand jury investigation of Crazy Joe and more.  It’s been a very busy few months in Maricopa County.

And now the Arizona Republic reports that charges against Phoenix criminal defense lawyer, David DeCosta, have been dismissed.



Charges were dropped Monday against a defense attorney accused of trying to smuggle drugs to a jail inmate believed to be affiliated with the Mexican Mafia prison gang.

David DeCosta, 43, was charged with promoting prison contraband, conspiracy to promote prison contraband, two drug counts and assisting a criminal street gang after a Maricopa County Sheriff’s deputy claimed he caught him trying to pass drugs stapled inside a legal pad to a client he was representing in a court hearing.

To avoid the appearance of conflict of interest, the case was prosecuted by the Pinal County Attorney’s Office before Navajo County Superior Court Judge Thomas Wing.

According to a spokesman for the Pinal County Attorney’s Office, the charges were dropped without prejudice for lack of evidence, which means they can be filed again if further evidence emerges.
Ignore the end of the last sentence, reflecting mere poor reporting and a dumb as dirt reporter who doesn’t understand that cases dismissed before jeopardy attaches are inherently “without prejudice,” not because there’s any expectation that new evidence might emerge.  It was a gratuitous, and dopey, inclusion that marred an otherwise triumphant report. 

Lack of evidence means that they can’t even manufacture a case against DeCosta.  No doubt Maricopa County Attorney Andy Thomas would have done everything in his power to make sure that the charges stuck.  It may have helped that the case was prosecuted by the Pinal County prosecutor, as the surrounding counties appear to have had enough of the Maricopa craziness.  They aren’t inclined to be party to Crazy Joe and his pet Andy’s rampant impropriety these days.

The nightmare is over for David DeCosta.  But dismissal isn’t enough.  The charges smeared him, and it was wrong that his name should ever be associated with the crime for which he was accused.  He committed no crime.  He did nothing wrong, except maybe his job too well.  In Maricopa County, defending those accused of crimes is an offense against Arpaio.  Of these, DeCosta is guilty.

It would be foolish to suggest that things have righted themselves in Maricopa County.  There’s still an enormous amount to do before anything close to that can be said.  But one thing is now righted, and that’s the vindication of David DeCosta.  While it’s small comfort to DeCosta, his arrest started a ball rolling that may lead to the end of Crazy Joe’s reign of terror on Maricopa County.

To the extent that the blawgosphere spread word of the false charges against DeCosta and contributed to the pain he endured, the very least I can do is spread the word of his innocence as clearly and loudly.  Criminal defense lawyer David DeCosta is innocent of all charges and was wrongly accused.  If this overstates the significance of dismissal, that’s fine with me.  It’s far easier to allege a crime and wrongly smear someone than unsmear the innocent. 

ABA House of Delegates: Huh?

The American Bar Association has never carried much weight amongst criminal defense lawyers.  Few join, and I can’t think of anyone who participate in the House of Delegates.  I’m sure there are, but I just don’t know who.  Maybe they keep it to themselves to avoid embarrassing questions, like “why?”, or “what the heck is the ABA doing?”

The latter question popped into my head when I read the breaking news from the ABA Journal, that the House of Delegates, in full swing yesterday. announced 9 criminal justice resolutions.


The ABA’s policy-making House of Delegates this morning passed a series of nine criminal justice resolutions. The measures had wide support from both prosecutors and the defense bar, according to speakers. The resolutions urge:


• Employers and educational institutions to ignore juvenile convictions that have been expunged.


• Legislatures to adopt simplified Miranda warnings for juveniles who are arrested.


• Legislatures to study whether some misdemeanor laws should carry civil fines rather than criminal penalties.


• Judges to conduct a conference with parties in a criminal case prior to trial, advising them of their respective disclosure obligations, such as the obligation of federal prosecutors to disclosure information under Brady v. Maryland and related case law.


• Governments to facilitate communication and contact between individuals in correctional custody and their families.


• Bar associations and law schools to provide prisoners with assistance in “avoiding undue consequences of arrest and conviction on their custodial and parental rights,” and Congress to allow Legal Services Corp.-funded organizations to provide family law counseling.


• The U.S. Attorney General to “assure that lawyers in the Department of Justice do not make decisions concerning investigations or proceedings based upon partisan political interests.” The measure is a response to the dismissal of several U.S. Attorneys during the Bush administration.


• Policy-makers adopt the ABA Criminal Justice Standards on the Treatment of Prisoners.


• Congress provide more than the $25 million appropriated so far for the John R. Justice Prosecutors and Defenders Incentive Act of 2008. The measure provides law school loan forgiveness for state and local prosecutors and state, local and federal public defenders who agree to serve for a minimum of three years. Federal prosecutors are already eligible for loan relief through existing federal programs.


The resolutions were all were adopted by overwhelming voice votes. No members of the House spoke in opposition to the measures.


There is much wrong in the management of the criminal justice system in this country, and to the extent that anyone gives a hoot what the ABA has to say about it, this was a grand opportunity to speak out and make a clear statement that lawyers and judges participating in the largest bar association in the nation demand better.

But these nine resolutions are so lame, some indecipherable and others meaningless, that the only two reactions could be to laugh or cry.  These are seriously bad.

For instance, the fourth resolution, calling for judges to hold a conference to advise parties of their “respective discovery obligations.”  Respective?  The defense has no Brady obligation, because we don’t prosecute.  Do the delegates not know this?  And the prosecution knows that its required to disclose pursuant to Brady.  They don’t need to be reminded.  They didn’t forget.  They just don’t do it. 

The failure to disclose is a huge problem.  The ABA resolution is absurd.

And then there’s resolution five, calling on government to “facilitate” communication between prisoners and their families.  What does “facilitate” mean?  I’ve got no clue.  I assume this is in response to states selling collect calling rights to phone companies so they can charge $27 a minute to prisoners.  Or does it mean a payphone on every cellblock?  Or allowing 5 calls a day?  Or free telephone calls?  Or what?

And don’t even get me started on the meaning of “undue consequences” in the sixth resolution. 

The problem with the ABA has always been the same.  It’s not the voice of real criminal lawyers.  It’s the voice of committees, which by definition would turn thoroughbred horses into two hump camels, comprised of defense lawyers, prosecutors and judges.  As the three groups have very distinct interests, all with camels in the race, the extent of overlap and hence agreement is minimal.  The result is lame resolutions, either too vague or too weak to mean anything.  Nine of them, not a one worth a damn.

Wait.  I’m wrong.  There is one that actually says something.  The ninth, and final, resolution, which calls for $25 million to fund loan forgiveness for prosecutors and public defenders.  This is an issue where the ABA actually has strong feelings.  In fact, ABA President Carolyn B. Lamm has made students loans for law students her big issue.


“Because of the recession, a lot of students are facing debt they can’t pay,” said Lamm, a partner at White & Case in Washington, D.C. “We’ve been urging the White House, DOE [Department of Education] and Congress to persuade lenders to create the suspended payment period. This resolution will give that effort the full policy backing of the ABA.”
In ABA-land, the recession only touches lawyers.  She’s heard the painful cries of law students, unemployed or deferred, carrying debtloads of more than $100,000.  Almost 45,000 are produced in the ABA accredited lawyer factories when there are only 30,000 jobs per year.  So Lamm’s solution is take the tax dollars from people on Main Street, jobless and facing down foreclosure, and feeding them into the hungry mouths of poor, miserable unemployed law students.  After all, with all the misery caused by economic circumstances, aren’t law students, hoping against hope to win the lottery by landing the Biglaw job, the most deserving?

Maybe someone will speak up and suggest that the answer is to stop accrediting new law schools to produce new lawyers for jobs that don’t exist and a society that doesn’t need more litigation.  Then cut the seats in existing law schools in half.  They cut the tuition by a third, as well as the time in school taking crucial classes like “Law and Modern Television Sitcoms.” 

It’s not likely.  If anyone was to speak up and say such a thing, they would be laughed at by the other delegates.  This is the American Bar Association.  This is what comes from a big group of important lawyers in the same room.  Nonsense.

The Moral Frustration Of Charging A Fee

Norm Pattis describes well the inherent conflict that most private criminal defense lawyers feel when a person in need rings them up.


The contrast between the law’s soaring ideals and the more prosaic reality of paying the bills intersect at the moment the attorney-client relationship is formed. Yet in all the great and not so great fiction about lawyers and the law, fees are almost never discussed. . . Why the silence about fees?

I suspect it has to do with a certain moral ambiguity. There is nothing edifying or easy about asking a person in trouble for money. The ideal of a lawyer as crusader for justice does not easily square with the image of the esquire as businessman. “Sure, sir, I will be happy to defend you, but first on the matter of my fee …” This is a difficult transition.


Boy, is it.  Informing a human being that there’s a price tag connected to the defense of his case is one of the most difficult hurdles that a criminal defense lawyer has to leap.  No one wants to turn away a person in need, unless they are so fundamentally mercenary that they lack basic human feelings.  But as Norm points out, there are some hard realities to address:


Our firm typically charges flat fees for criminal cases. I wonder, sometimes, whether that makes sense. The client buys an ideal, and with it the limitless sense that the lawyer is available 24-7 to discuss his thoughts, feelings, fears and goals. The lawyer, on the other hand, remains bounded by the realities of running a law practice: the demands of trial in another’s case, the need to pay the bills, manage a staff and attend to the needs of his other clients.

But here is where there are differing views.  Norm reviews my posts about “managing” the “big fee” client.


Scott at Simple Justice has written in recent weeks about the demands of the so-called big fee client. I read his pieces with a gnawing sense of frustration. There really ought not to be multiple standards for clients: all, regardless of fee, should get the same level of commitment and care. But Scott raises an honest point: the market in human suffering is price sensitive. Client’s with unlimited means get unlimited time from their lawyers; those with more limited means get less time. The reason is simple: like it or not, time can be transformed into money, and necessity governs a law practice.

While it’s understandable that Norm would draw this conclusion, it’s not the way it fleshes out.  While fees vary based upon the experience of what will be required to represent a given defendant in a given case, experience also teaches that things often work out differently than expected.  Once a case is accepted, and utterly without regard to fee paid, the work must be done.  If the fee is insufficient to cover the amount of time necessary to perform the work, then that’s my burden.  The client has done all that’s asked of him, and the risk of there being more work, sometimes far more, than anticipated is my responsibility alone.

This doesn’t mean, however, that the hand-holding, middle of the night anxiety phone calls are taken with equanimity.  That’s not lawyer work, and while it may be part of the job to help the client to understand and appreciate the situation, it’s not a 24/7 therapy session.  If the client’s anxiety sucks up time that impairs my ability to handle the lawyerly work for which I’m retained, then the client is told as clearly as possible that it’s not going to be tolerated.  It’s not a lack of empathy, but a matter of necessity.  There are still only 24 hours in a day, and if they’re all used up listening to the client’s worrying, then there’s nothing left for the lawyering.  He loses.

But this is as equally true of the big fee client as any other client.  It’s a matter of creating a clear understanding from the outset about what the job is, and what the client is paying for.  If he needs a therapist, then he’s come to the wrong place.  If he needs a lawyer, then we’re on the same page. 

Every client, however, whether the legal fee is a million dollars or two cents, receives every bit as much legal representation, meaning time performing the function of a lawyer, as is needed to provide the best possible defense.  There’s no clock ticking in the background that tells me that the time a client’s paid for has run out, and I move on to the next, higher-fee-paying client.  When I take on a case, I take on the responsibility of fulfilling my duty to the client to provide a zealous defense, regardless of how much time that takes.  There’s no wiggle room on my part; I owe the client no less.

This doesn’t alter the moral frustration of having to either be paid a fee or take a pass.  The other day, I received a telephone call from a young woman who found me via Avvo.*  She had a warrant because she neglected to perform the community service imposed for a minor offense.  She had left the state.  She couldn’t remember the name of her lawyer.  Her mother was very angry with her.  She had no money.  What should she do? 

Put aside the fact that all her problems, and there were many, were entirely of her own making, and grounded exclusively in her own remarkably poor choices.  She clearly needed some help.  I understood and felt badly for her, but I could offer her nothing.  It’s not that I didn’t know what to do to help her.  That was a fairly easy question.  It was that my doing what was necessary would have impaired by ability to defend the people whose cases I have already taken, who have paid my fee, who are depending on me to put in the time to do everything in my power to help. 

That people call with problems that they’ve created for themselves, in need of help and with nowhere to turn, doesn’t surprise or bother me.  One of the fundamental themes in this business is that people do incredibly stupid things all the time.  We try to help them and simultaneously teach them to make better choices so that they don’t continue to do stupid things.  We don’t blame them for being human, or leave them to hang because their problem are of their own making.

Limits, however, are imposed by the harsh master of reality.  I’m not a public defender, and I cannot defend my clients if I try to be all things to all people.  It’s not that I don’t care. It’s that it isn’t possible, so choices have to be made.  I will do everything I can to defend my client, whether he’s paid the big fee or not.  But something has to give. 


How to balance the needs of clients and the need of a firm for fees is a challenge I have yet to master after many years of trying. It is a discouraging reality that even legal fiction refuses to address.

By no means do I assume that I’ve mastered the balance to achieve some element of moral balance, but I firmly believe that a line must be drawn if we’re to fulfill our duty to the clients whose cases we take on, and survive.  This is where I’ve chosen to draw the line.

 

Volenti non fit injuria.
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