Sometimes people call and ask me, using a phrase that I’m not going to mention here because I don’t need any more such calls, whether I take cases for free.

Of course I take cases on which I’m not compensated. I think that any lawyer worth his salt helps people who can’t afford him. In the criminal courthouse, the problem of the working poor is a serious one, and we’re not going to solve it by abandoning to the tender mercies of the lowest bidder those people who have jobs and can make bail (and so will be denied indigent representation by judges trying to save a buck) but can’t afford to pay for the work that needs to be done to preserve their rights.

(The separate problem of the indigent sometimes getting poor representation is also serious, but it is diminishing in Harris County. People sitting in jail with no money at all get better representation than people who can afford bail but don’t have a rainy-day fund.)

What the callers really mean, though, is, “will you take my case for free?”

There are lots of working poor accused of crimes, and one lawyer doesn’t have to represent all of them. It’s okay for a criminal-defense lawyer to choose the cases she takes without pay (and puts her own money into, since it’s often cheaper to pay expenses out of pocket than to ask the court for funds under Ake v. Oklahoma) based on some criterion other than “because someone asked her to.”

For example, the lawyer might choose to help people charged with a certain sort of case (misdemeanor possession of marijuana? murder?), or people of a certain demographic (I often represent young black males charged with picayune first offenses for free to keep them out of the hands of the low-bid lawyers because the first charge, if not vigorously contested, often leads to a years-long cascade of bullshit resulting in prison time) or people with a certain relationship (friends and family of former clients? fellow churchmembers?).

The lawyer might choose to take cases in which she has special competency. The Latin phrase that shall not be named means “for the public good,” and the criminal-defense lawyer can decide how her contributed time will best add to the public good.

The criminal-defense lawyer can also decide to take cases only for those who will most appreciate it. There’s nothing wrong with expecting some psychic reward in exchange for our valuable time. Sometimes that reward might be the satisfaction of sticking it to The Man, or just a job well done, (I volunteered today on a case in which media reports and online court records convinced me that the defendant was getting a raw deal; I think I can beat the case and keep it out of the press henceforth, which will be satisfying in itself) but sometimes nothing less than an appreciative client will satisfy.

The criminal-defense lawyer is entirely within her rights refusing to represent for free someone who is most likely not going to appreciate it.

Appreciation is, as a rough general rule, directly proportional to the fee. Do the same excellent job and get the same excellent results for two clients, one of whom has paid fifty Gs and the other of whom has paid nothing, and the former will think you’re the best lawyer ever while the latter thinks, eh, I could have done just as well pro se.

But the underappreciation of free representation is mitigated when the free representation is unexpected. The client who doesn’t know that he can possibly afford you, who comes to you hoping that he can, is pleasantly surprised when you take his case for free, and grateful for your representation at any price; the client who comes to you seeking free representation is getting nothing more than he thinks is his due and treats you accordingly.

It’s not the answer to the literal question, but it’s the answer to the real question; it saves both me and the caller time and aggravation; and it doesn’t harm anyone: my answer, when a caller asks if I take cases without getting paid, is usually a simple “no.”