Power Doesn't Like Truth

 Posted on November 29,2008 in Uncategorized

Scott Greenfield got an email critical of his position on marketing, and published it unedited to his blog. In one portion, the writer (Santa Ana, California probate lawyer David Allen Hiersekorn) writes:

Even more disturbing, you actually write on your website that you are better than other attorneys and would get a better result for your clients. Many states actually prohibit those kinds of statements. I know that a good many lawyers would find them wholly undignified. I have a dear friend and mentor, retired New York Judge William Lawless, who wrote much of New York's evidence code back in the 1960s. I had a conversation with Judge Lawless where he went on at length describing the harmful effect of lawyers competing on quality of result. I will summarize Judge Lawless' [sic] argument as it relates to your area of practice. Mr. Greenfield, you diminish the legal profession, because your advertising gives the public the impression that the criminal justice system doesn't determine guilt or innocence. Rather, the result of the legal system is to determine who has the best lawyer, and then reward that person. The legal profession suffers when people believe that an acquittal can be purchased simply by hiring a better lawyer. The converse is true as well. The legal system suffers when people believe that innocent people get convicted simply because they didn't have a better lawyer.Indeed, these things happen. But, they are tragedies of justice, not marketing opportunities.

As I understand Judge Lawless's position (as transmitted by David), criminal-defense lawyers shouldn't suggest that the criminal justice system is an imperfect machine for delivering justice, nor that quality of counsel matters to a person accused of a crime.

In other words, criminal-defense lawyers shouldn't speak the truth.

There are some who stand to gain from the truth not being told about the criminal justice system. Judges and prosecutors, for example, benefit from the perpetuation of the illusion that the system is intrinsically just. They depend, for their employment, their egos, and their sense of order on the system not being "diminished".

Those who want the public to think that the system is an efficient machine for determining guilt and innocence would have lawyers like Scott lie about the system because the truth is undignified. But "it'll harm the system" isn't a compelling argument to us; criminal-defense lawyers are not among those with a stake in the beauty of the emperor's robes.

The system is undignified, ugly, dirty, and messy. It's not about factual guilt and factual innocence, nor about truth and falsehood, nor right and wrong, nor good and evil. It's about what the government can prove (whether true or false) and what the defense lawyer can keep the government from proving.

The better the lawyer, the better the chances the accused has. Innocent people get convicted simply because they didn't have a better lawyer. Not only do criminal-defense lawyers have a duty not to lie to thepublic about the system, but they also have a duty to tell the truth, because innocent people who don't know this to be true are screwed.

What three-year probate lawyer attorney David calls "tragedies of justice", veteran criminal-defense lawyers call "the status quo". When the system manages to produce Justice, it's no more than a happy coincidence.