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January 5, 2014 in
In The Practice of Law as a Confidence Game: Organizational Cooptation of a Profession, Abraham S. Blumberg’s major thesis is that criminal-defense lawyers are turned from their duties to the client by the system to get their clients to plead guilty. This is a fair characterization overall, but not universally. Most criminal-defense lawyers put the client first—before personal and professional relationships and “clients”—to some extent.
Those at the “lesser” end of that spectrum are clearly derelict in their duties; those at the “greater” end are paragons of Sixth Amendment virtue. ((Even a paragon puts her own interest in behaving ethically ahead of the client’s interest in being free. There are lines that not even a paragon will cross for the sake of the client.)) Most criminal-defense lawyers are neither derelict nor paragons, but somewhere in between. There are few who could not do a better job of subjugating all else to the client’s interests.
So how can the defendant, desperate to get out of trouble, find a lawyer who will do the best possible job of putting the client’s interests first?
Blumberg calls the practice of law a “confidence game.” There is a difference between a confidence game and a run-of-the-mill swindle. In a confidence game, the mark is led to believe that he is doing something shady. Most bad lawyer advertising is a run-of-the-mill swindle; “we’ll bribe the judge” would be a confidence game. “I am a former prosecutor,” with its hint that the relationships formed as a prosecutor might be used to give the accused some advantage, is a confidence game.
So the best piece of advice for the client who wants not to be the victim of a criminal-defense confidence game is not to expect anything shady. The lawyer who intimates that his relationship with the prosecutor will get a better result should, like the lawyer who intimates that he can bribe the judge, be avoided at all costs. As I’ve noted before, when the lawyer’s long-term relationship with the prosecutor is placed in tension with her short-term relationship with the client, it is not the former that will suffer. Blumberg describes the inherent conflict between the interests of the client and the interests of the lawyer:
The individual stridencies, tensions, and conflicts a given accused person’s case may present to all the participants are overcome, because the formal and informal relations of all the groups in the court setting require it. The probability of continued future relations and interaction must be preserved at all costs.
The defense lawyer’s future relations with the other participants in the system—prosecutor, judge, court staff—depend on her handling of the client’s case; the client’s case suffers because of this dependency.
The defense lawyer might rationalize this—relations with the other participants in the system must be preserved because other clients’ cases will depend on those relations. But it is “the client’s” interests that must be pursued, and not “clients’.” It is not uncommon for a lawyer to face situations in which actions taken for this client might make things more difficult for future clients; ((For example, pursuing appeals that might result in bad holdings.)) this client’s interests trump those future interests. ((If the lawyer’s choices for this client might prejudice other current clients, he has a conflict of interest and must withdraw.))
The Harris County Criminal Justice Center may well do more business than any criminal courthouse in the country, but it is not a big courthouse. We all have insider connections. We all have friends in the DA’s Office and on the bench. The lawyer who is marketing himself based on those connections has got nothing real to sell.
So the client who is not looking for improper influence—for someone in the courthouse to cut him a break because of who his lawyer knows, rather than his lawyer’s training and experience—has a better chance of avoiding the confidence game altogether and hiring someone who will put the client’s interests first.
Seems uncharacteristically naive to posit that there are criminal defense lawyers unencumbered by the economic and social forces Blumberg describes, which are indeed “universal.” Tables one and two were especially telling – show me the criminal defense lawyer who has never been the first person to suggest their client take a plea! One may buck those forces on occasion, but I don’t think there are any practicing defense lawyers who don’t succumb to them fairly routinely – even “paragons.”
Criminal defense lawyers are the Washington Generals of the profession – nobody even keeps track of the won-loss record because losing is the job description. A “win” becomes getting a “good deal.” That’s not a personal criticism, just an acknowledgement that Blumberg was accurately describing the dynamics at play.
The paragons don’t care if judges and prosecutors like them. There are many, but two obvious local examples are Norm Silverman and Anthony Fisch. I learn from these guys every time I work with them.
For several reasons, “who first suggested that you take a plea?” is a question that will glean no information about the quality of the representation.
First, who else is going to talk about a plea with the client? This isn’t Law and Order; judges and prosecutors aren’t even going to talk to my clients.
Second, criminal-defense lawyers are ethically required to convey any plea offers to the client. Unless the lawyer says, “I advise you not to take this offer,” “conveying the plea offer to the client” might seem to the accused a lot like “suggesting the client take a plea.”
Third, often a plea is a win. The lawyer who says, “I advise you not to take this offer” when accepting the offer brings about the best possible result is failing his client no less than the lawyer who says, “I advise you to take this offer” when the client should not.
Fourth, if you take Table One at face value, fewer than half the people pleading guilty are actually guilty. Nonsense. Criminals don’t suddenly become honest after they’ve pled guilty. Clients often have buyer’s remorse, so their statements of why, if they were factually innocent, they pled guilty should be taken with a large grain of salt. Many times I have had momma call me after the plea, demanding to know why I forced junior (who was ecstatic to make a deal, but who can’t admit to momma that he did wrong) to plead guilty.
Even Blumberg doesn’t take Table One at face value. He writes:
In my view the only long-term solution to this problem is structural reform. When a chief public defender is elected by the people just like a DA is elected by the people this conflict will stop. One of the major reasons there are so few PDs who go on to make DJ or a judge on the appellate court is because those appointments require political connections and a PD is rarely involved in politics. Most private practice lawyers who get those judgeship are not criminal defense, either. So long as defense is politically unequal then it will remain legally unequal. That’s the way democracy works.
Elected DAs? That’s a really really bad idea. See, e.g., Matt Shirk. Criminal defense is an antidemocratic process: we are fighting for people and principles that a majority of the people would reflexively jail and destroy.
I get it, but “often a plea is a win” get us back to the Washington Generals analogy. Blumberg’s arguments about the “confidence game” aren’t about whether lawyers care who likes them. They’re about the nature of the professional and economic relationship of lawyers to the court and their client, and they’re inescapable.
No, often a plea is a win for the client. The principle of beneficence demands that we help our clients win.
Blumberg’s arguments about the confidence game are about whether lawyers put relationships with other players in the system before their clients’ interests. “Like” is shorthand for those relationships. There are some lawyers who depend on courts to provide them with a living, or on the kindness of prosecutors to get acceptable results for their clients. Many lawyers do not. Such relationships are escapable.
Lawyers have to get paid and keep their law licenses, and they don’t put their clients’ interests before those things. That’s not a “confidence game.”
Mark, would you say you and other “paragons” are immune to the criticism of fee arrangements in the article or the economic incentives they impose? Am I wrong in assuming you require a fee up front for the same reasons Blumberg describes?
Also, your response focuses on Table One but Table Two is also instructive about who convinced them to take a plea. Maybe a plea is a “win,” but it also happily corresponds with the CDL’s economic interest of minimizing the amount of time spent per case. When you say lawyers are “ethically required to convey any plea offers to the client,” you’re acknowledging Blumberg’s point: The the lawyer has duties to the system and the profession that a) coincide with the economics of the fee arrangement and b) conspire to subvert the supposed “adversarial” nature of the system.
Don’t take a sociological critique personally. You’re too smart to pretend that the profession suffers from such fundamental disconnects but they never apply to you.
Scott, read more carefully. I haven’t described myself as a paragon, and even the paragons have other pressures than the client’s best interests; otherwise they would be willing to lose their law licenses, go to jail, become homeless, and die for their clients.
The CDL’s obligation to convey plea offers to the client is not merely a duty to the system or the profession; it’s a duty to the client, in keeping with the ethical principle of autonomy.
The CDL knows better than anyone else the realities of the system. Forthrightly presenting these to the client might seem to the client like “convincing.” But it’s “convincing” in the same way that pointing out to you that a train might be coming is “convincing” you to step off the railroad tracks.
There are interests that all lawyers must put before the client’s: we don’t go around killing witnesses. This cannot be described as a “confidence game.”
Beyond that, there are a great number of lawyers who put their relationships with judges and prosecutors ahead of their clients. There are also lawyers who connive to get their clients to plead guilty. This can be described as a “confidence game.” Such lawyers are avoidable.
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