Nothing to Do with PDs and Private Lawyers

 Posted on November 23, 2008 in Uncategorized

A post from Minneapolis public defender Mariam's Accident Prone blog:

Dear Private Attorney,I know you think you know more than I do. Hell, maybe you do. I know that you think dispensing legal advice without, oh I don't know, "reading the file" or "knowing about what the evidence is" is a good idea. In the future, if you're not going to do either of those things, please do not tell my already deluded client that he "should be able to get" a misdemeanor disposition from a felony. Or else, take the damn case and get what he "should be able to get" for him. Oh wait, what? You can't/won't/don't have a valid legal license to do so? Then shut the f&*$ up!Warmest Regards,Mariam

New York lawyer / blogger Anthony Colleluori: thinks the problem is that hired lawyers are better than PDs:

Dear Public Defender,I am sorry that I can get a better deal for your client than you can.... [self-aggrandizement explaining why Anthony can get the client a better result than any PD excised in the interest of good taste]... That is why their client is in my office begging me to take his case, and why I can't. You can take it though, and you could win his undying loyalty and respect, but it's not free, you have to earn it.WarmlyPrivate Lawyer

Connecticut public defender (and figment of our collective imagination) Gideon has his own view of the problem:

The real problem is the willingness of some to put aside their professional responsibility and duty to the client to make a quick buck. The real problem is the maligning of the public defenders in order to do so.... Our goal is the same and our clients are the same. We should be working together, side-by-side for the benefit of our clients. Your client today may very well be my client tomorrow. It doesn't serve his interests for you to bad-mouth me now or promise him the moon.

And New York criminal-defense lawyer Scott "Paladin" Greenfield shares his perspective (sorry, guys, my copy of the memo musta gotten lost in the mail):

The essence of the problem here is that Miriam's attack on the private criminal defense implicates what some private lawyers will do or say to make a buck. In order to snare a client represented by a PD, some private lawyers feel compelled to belittle them, their quality, service and dedication....Those in the private criminal defense bar either bring something to the table that makes them worth retaining to represent defendants, or they should find another area of practice. Our experience, skills and dedication are what we offer. Either they are worthy in themselves, or not. They don't become more worthy by beating up on public defenders to make themselves look better and brighter and nicer and worth many thousands of dollars.

What I think Tony, Gideon, and Paladin are leaving out is that the Private Attorney that Mariam is addressing can't or won't take the accused's case, so she's not trying to make a quick buck or snare the client, yet she is giving him specific advice that will affect the decisions he will make. She's giving a second opinion without taking on responsibility for the choices that opinion will lead the client to make.

A lawyer's time and her advice are her stock in trade. But Mariam's Private Attorney is giving it away for free. Why? One can only guess. Maybe P.A. is trying to make a name for herself by running down PDs; maybe she thinks that the client (who doesn't have the money to hire her) will spread the word down at the detention center that, if you do have the money, P.A. is the one to hire. Maybe she sees himself as an altruist, and thinks she's helping the client by telling the client (without reading the file or knowing what the evidence is) what a "real" lawyer could do for him. Or maybe she just has a personality disorder.

Most clients need our help because they've made bad decisions before; they retain us to help them make the most important decisions in their lives. I try cases to juries - I've tried six in the last twelve months - but still I recognize that where I earn my huge fees is in helping the client make the correct go/no-go decision. Most criminal cases end in resolutions other than trials; it is almost always in guiding the client in making the least bad choices that a lawyer earns her keep.

Sometimes a potential client (or a lookie-loo) will call and ask me for a second opinion - whether he should follow the current lawyer's advice and take deal X. "If you trust your lawyer, follow her advice. If you don't, change lawyers." I decline to give any other advice because that's what people pay me for. "Our experience, skills and dedication are what we offer"; not promises.

When the new criminal defense attorney gives advice contrary to the current lawyer's, she poisons the relationship and decreases the chances that the client will receive the best, most effective representation that the current lawyer is capable of providing.

This has nothing to do with PDs and private lawyers. When a criminal-defense lawyer says to an accused, "you should be able to get...", she'd better be prepared to back that up by putting it in writing and signing on to the case. Or, as Mariam says, shut the f&*$ up!