Defend Well and Prosper

 Posted on July 27, 2012 in Uncategorized

Other old business, from the archives...

Kansas appellate PD "S" writes at Preaching to the Choir:

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. Maybe my anger is better directed at the criminal justice system that can ruin a person's life just by being charged with a crime and maybe I'm not being fair but to me, defending people shouldn't be a path to prosperity.

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.

There are hundreds of good criminal-defense lawyers in my town; most of them charge substantially less than I do. By hiring me, most of my clients have chosen not to pay lesser fees. I don't think I'm God's gift to criminal defense, but I do enjoy some advantages that aren't widely shared, and the market agrees. (It is axiomatic that, all else being equal, the less a person pays for his defense the less happy he is with his defense. Do you really want a lawyer who makes less money than you?)

I'm troubled by the problem of the working poor. But it's a problem that belongs less to me and my family less than to the legislators who overcriminalize, the prosecutors who overcharge, the cops who are hungry for overtime, the judges who try to make people who can't afford competent counsel hire any counsel, and the voters who allow the whole mess to continue. Don't, in other words, look to me (or my brethren and sistren in the criminal-defense bar) to hold together the leprous system.

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.

So if I charged less, more people could afford me; I would have a wider range of cases from which to choose the few that I could take. How to choose?

Shall I take the cases in which there appears to be the most injustice? I'm a criminal-defense lawyer; I don't judge. Except in a few glaring cases, I've got no idea how badly the system is trying to screw my clients over until I'm deep into their cases.

Shall I take the cases that seem like the most fun? I could do that, but it's hard for me to see how any more social justice would result from my using whimsy instead of finances as a sieve for selecting clients.

If you're working-poor and your case doesn't have any special interest to me, you probably aren't going to manage to hire me. But some of my clients don't have to pay at all. Charging most clients what I think I'm worth makes it possible for me to take others' cases for love of the game, as well as to be active in defending and supporting the criminal-defense bar.

If I were scraping by on next-to-nothing (there are lots of criminal-defense lawyers doing this, though not for the most part by choice) I wouldn't have the luxury to do the pro bono work that I choose (nor to offer my help to those who seem to need it, nor to have Dionne Press try to get the DA's Office to file charges against me as a result; huzzah).

Criminal defense is not a path to untold riches. A good criminal-defense lawyer might prosper, but most aren't joining country clubs or driving BMWs. There are a few criminal-defense lawyers of my generation in Houston who make a lot more money than I do; I don't begrudge them the prosperity gleaned from their own special talents or their choices, different than mine, that didn't harm their clients. Had I chosen a different path, I could be making more money in personal-injury law, or in corporate litigation, or in business. If criminal-defense lawyers are not permitted to prosper, bright minds will choose to go into fields in which prosperity is not frowned upon.

Sure, some true believers will still be attracted to the defense of the accused, regardless of the financial disincentive. And what we believe is important; often it is as important as what we know. It is important to do what you believe is right, and to believe that what you do is right. I am saddened by lawyers who practice criminal law cynically, without believing in its fundamental tenets. But doctrinal rigor by itself never won a lawsuit.

Now, I talk of prosperity; my definition of prosperity may be different than S's. I'm not joining any country clubs, and my BMWs have only two wheels. I am not in the top 1% of people in the US, but I recognize that by the standards of most of the world, I'm not only prosperous but wealthy beyond imagining-easily in the top tenth of a percent. Even the Kansas PD with no dependents is wealthy by most people's standards-in the top 1% of the world's population.

So here's the question for S: If criminal-defense lawyers shouldn't prosper, why should an ideologically pure Kansas public defender allow herself to make "a pretty good salary"? Doesn't intellectual rigor demand that she disgorge all but a subsistence portion of her wages to make it possible for the government to hire more public defenders so that more of those with little money can be better represented?

(S's post was apparently triggered by Jose Baez's announced book about his client, which, truth be told, raises a different question than "is it okay for a criminal-defense lawyer to prosper?".)