Who Do You Want Representing You?

 Posted on August 01, 2007 in Uncategorized

Fort Worth criminal-defense lawyer Shawn Matlock blogs about "criminal-defense lawyers" vs. "lawyers practicing criminal law". It seems to me that there must be a better expression to describe the latter (I'll try to find it as I write this) but the distinction between the lawyers who defend people because they have a passion for the fight (the criminal-defense lawyers) and the lawyers who represent the accused because of a business decision (V-6s?) is one with significance not just to the individuals accused, but also to a system that strives for an appearance of equal protection.

New York criminal-defense lawyer Scott Greenfield writes about the plight of the ordinary person, living paycheck-to-paycheck, who is accused of a crime. Unless he has friends or family who have or can borrow money, chances are that this person can't afford a great criminal-defense lawyer.

If you are accused of a crime in America, and the judge finds that you (not your family: you) are indigent, a lawyer will be appointed to represent you. You won't get to choose your lawyer, but you will have a chance (in many jurisdictions, a substantial chance) of being appointed a criminal-defense lawyer as Shawn describes that species - someone who does what she does because of a passion for the fight.

But to many judges the paycheck-to-paycheck folks aren't indigent. Courts, trying to save the government a few bucks, will not appoint lawyers to represent them. In Harris County, for example, getting a court to appoint a lawyer to someone whose family has bonded him out is like pulling teeth. Yet the working poor can't afford to hire a great criminal-defense lawyer. So who is to defend them?

The government's solution to the problem of the defense of the working poor is to leave it to the market. Both Shawn's post and Scott's illustrate that the market's solution does not work. As Scott points out:

There is a rather large group of lawyers available to the working guy, who will never let a client walk away if they have a few bucks in their pocket. But these are the lawyers who prey on the misery of ordinary people, planning how quickly they can plead them out at the first meeting while telling the client how they guarantee a win.

These are the "lawyers practicing criminal law" (vultures?) that Shawn describes (blawgospheric symbiosis!). To most judges, if an accused has enough money to get someone with a law degree - even one of these "lawyers practicing criminal law" (criminal pretense lawyers? Eureka!!!!) - to appear in court for him, he's not entitled to appointed counsel.

The government's solution to the problem of representation for the working poor doesn't work because the Sixth Amendment doesn't allow market forces to determine effective representation of counsel. The government, by charging a person with a crime, creates his need for representation; the government should ensure (and, indeed, is required by the Constitution to ensure) that the accused have effective representation.

If not the government's solution, then what? The judges know who the criminal pretense lawyers are. Yet they allow these people to continue coming into their courtrooms and selling their clients short. Their argument is that, beyond ensuring that representation meets very low constitutional standards of effectiveness, they have no responsibility to police the lawyering in their courts. This is somewhat disingenuous, since the judges do their best to cover the criminal pretense' lawyers asses during plea colloquies by asking the accused questions like "are you satisfied with the representation of Mr. X?"

Effective representation requires an avenue for meaningful postconviction review of representation; because the judges do their best at every opportunity to cut off every such avenue, they bear some responsibility for allowing the sub-standard representation that results. They know damn well that the working-poor accused who makes bail, if he is forced to hire counsel, is going to have no choice but to hire a criminal pretender.

The solution is obvious: offer appointed counsel to the working poor, conditioned on their reimbursing the state as much as they can (that is, paying the state what they would otherwise pay criminal pretense lawyers).

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