We, like the public, began uninformed. We are now fully informed. We are fully decided in our opinion. The evidence is overwhelming against Respondents. We hope the openness in which these proceedings were held will help restore the public’s faith in our legal institutions and deter attorneys from similar misbehavior. The purpose of attorney discipline is to maintain the integrity of the profession in the eyes of the public, protect the public from unethical or incompetent lawyers, and deter other lawyers from engaging in illegal or unprofessional conduct.

Sadly, their own individual basic mistrust of others, when combined together, became multiplied by dishonesty, an abuse of power and a remarkable willingness to spend the public’s money for their
cause célèbre. The aggravating factors devastate the mitigating factors. We find they knew they had no evidence and prosecuted people anyway. There was no “noble cause.” There was only self–interest. The harm done to the public, individuals, and the profession was stunning on every front.

As thrilled as I should be seeing a tyrant brought to justice, I find myself feeling a bit uneasy about what happened. Instead of seeing this as a move in the right direction, I worry it’s too unique a set of circumstances to make any real difference. I’m concerned that Arizona’s attorney discipline system may ensure justice is done, in this case at least, but that it’ll just be business as usual in the criminal courts.

I remember when Judge O’Neil used to be a Pinal County Superior Court judge. He’s an incredibly charismatic person, and when he was on the bench, watching him do settlement conferences in particular was truly a sight to behold. I used to joke that sometimes I’d be begging for him to let me plead guilty at the end too. He can be that persuasive.

Most settlement conferences would start out with him telling the defendant that he knows what every defendant wants: a dismissal. He’d look at the prosecutor and say sincerely, “will you please dismiss the case?” After a clear “no,” he’d tell the defendant, “sorry, I tried.”

He’d talk about how he was a true Pinal County native. He’d talk about growing up in the middle of nowhere, building a small town law practice and never losing a criminal case before deciding that type of law just wasn’t for him. He’d talk about his impressive credentials as a lawyer as well as a judge.

Then he’d talk about his dad, a small-town doctor who lived with his family out in the country. He’d talk about his brother and how they worked on the ranch instead of playing games like other kids. He’d tell a story about one day when he and his brother decided to do something that would give them a story that would impress their friends. They’d catch a rabbit with their bare hands. If they couldn’t play baseball all summer like most children, maybe that would show everyone else that they were athletic too.

He’d explain how his brother saw a rabbit and started chasing it. His brother ran and ran, and the rabbit suddenly jumped into a hole. His brother leaped onto the hole and quickly reached his hand down, but he didn’t pull out a pair of soft bunny ears. He looked down and saw the tail of a western diamondback rattlesnake. The snake bit his brother, he’d say with delivery worthy of an Oscar, and if his dad wasn’t a doctor, he’d wouldn’t have had a brother anymore.

After that engrossing story, he’d tell the defendant that everyone hopes to pull a rabbit out of the hole at trial. He’d tell the client about “some other fellas” who thought the same thing. There’d be guys who had offers to probation but got life in prison. There’d be guys who could’ve done five but got fifty. He’s no slouch when it comes to experience, so there was never a shortage of other defendants’ bad experiences in similar cases that he could relay to each defendant. The end result was almost always a plea.

In Andrew Thomas’s case, there obviously wasn’t a plea offer. It wasn’t a criminal case, and he wasn’t looking at prison for what he did. He only stood to lose his law license. There was no threat of rattlesnakes to make him give in, no coercive statutory scheme pressuring him to confess to the things he claims he didn’t do for fear of far worse sanctions. After the recommendation came down for disbarment, he had nothing to lose fighting the case. He had everything to gain.

Unlike the thousands and thousands of people prosecuted pursuant to his heavy-handed, unfair, and often ridiculous policies, Andrew Thomas had the largely risk-free ability to do everything within his power to defend himself. Not only wouldn’t he be taxed with extra punishment for asserting his rights, but he also wasn’t being prosecuted by disorganized foot soldiers with very little knowledge of their cases in a system that rushed him through with minimal personal attention. He had all the time in the world.

In stark contrast to Andrew Thomas’s day in court, I recently tried a complicated but admittedly minor criminal case in a misdemeanor jurisdiction. The court only gave me a small slot in the morning to do it. I filed motion after motion telling everyone the case was going to be time-consuming, but no one read them. I tried to make a record about how it needed special attention, but no one cared. When I showed up for trial wanting to argue motions, address issues, and devote the massive amount of time needed to do it right, everyone treated me like I was evil incarnate. How dare I thrust that upon them? It was a grueling uphill battle just to get a meaningful day in court.

The order moving back the Andrew Thomas decision until today really exemplifies the difference between people like my client and people like Andrew Thomas. My client could’ve gone to jail, but she was just one little person in a big, unfair system. Andrew Thomas only stood to lose his license, but he’s a big fish. He’s important, so his hearing took 26 days. There were 46 witnesses, and it cost a fortune. After two months of proceedings and 6,132 pages of admitted exhibits, he lost his license based on a beautifully-written, well-reasoned, 247-page ruling that carefully dismissed the counts for which there was not clear and convincing evidence while holding the respondents responsible for those for which there was. It was the kind of treatment every person in the legal system should receive. It’s the kind of treatment few do. For half a decade, it seemed to be Andrew Thomas’s mission that would be the case.

Andrew Thomas was free to fight, and fight he did. He’ll probably continue fighting with an appeal to the Supreme Court of Arizona. Andrew Thomas’s experience as an unwilling participant in the system was in an area where he stood to lose far less than the vast majority of the people his office prosecuted during his tenure, yet he was given time and attention that far above that which all but the luckiest of his victims received. Of course, as no one would have doubted, Andrew Thomas still didn’t agree with the ruling. According to one article, these were his words:

“Today corruption has won and justice has lost,” he said. “I brought corruption cases in good faith involving powerful people, and the political and legal establishment blatantly covered up and retaliated by targeting my law license. Arizona has some of the worst corruption in America, according to a recent national survey. The political witch hunt that’s just ended makes things worse by sending a chilling message to prosecutors: Those who take on the powerful will lose their livelihood.”

I’m no Andrew Thomas sympathizer. However, I think he stumbles across an interesting point. I have no doubt that he abused his power, but there’s no question he chose a number of very powerful people to be among his victims. In a few cases, he targeted the political and legal establishment, probably assuming he was powerful enough to do it and win. He was wrong, luckily, and his misdeeds eventually caught up to him. His predicted message may be close to reality, though. He should have just qualified it by specifying that those who unlawfully take on the powerful will lose their livelihood. Those who lawfully take on the powerful may succeed. Those who unlawfully take on the weak or downtrodden will probably thrive and get away with it indefinitely. It’s a shame, but it’s true.

People keep telling me I should be happy that Andrew Thomas was brought to justice, but I am not. I read the opinion and think about the situation, and all I take away is a sense of something akin to envy on behalf of the ordinary people caught up in the legal system. This may have all taken place in the context of bar disciplinary proceedings, but Andrew Thomas committed his violations as a top prosecutor in Maricopa County’s criminal courts. It would be exceedingly naive for anyone to think his most egregious violations of the ethics rules happened to be the ones committed against a presiding judges and some powerful politicians. Andrew Thomas wasn’t disbarred because he pledged to continue to try to send people to death row in record numbers in order to get himself reelected. He wasn’t disbarred because he ran his office according to policies that cause innocent people to plead guilty or because he fostered a culture of intolerance and incompetence. It was because he finally messed with someone capable of fighting back.

The last thing I want to do is to diminish what Andrew Thomas did to Judge Donahoe or any of the others named in the ruling. It was awful, and justice was done when their cases were thrown out. Justice was done when Andrew Thomas lost his license. However, most people in the system stand to lose their liberty, and the system doesn’t give them anything close to what Andrew Thomas received. They don’t have the power Andrew Thomas’s best-known victims have.

Andrew Thomas was accused of something, and he fought the accusations. He was given every opportunity to fight his case, and he was not punished for taking advantage of that. The people he prosecuted had no such luck, and I don’t just mean the ones who were vindicated in bar proceedings and fought back until they won. There are plenty of ones who are still sitting in prison cells right now because they aren’t important and they were either afraid of snakes or didn’t pull out the rabbit they wanted.

As much as I appreciate Judge O’Neil’s hope that that the openness in which the proceedings were held will help restore the public’s faith in Arizona’s legal institutions, that isn’t the best thing that could happen. In fact, it may be the worst. Andrew Thomas did not run the county attorney’s office in a vacuum. The people of Maricopa County elected him. He wouldn’t have been capable of doing what he did if the system was better.

This should be a catalyst for change. It should make us reconsider our priorities and change the system in which he was allowed to operate. If we can give him a fair shake like the one he got, don’t we owe the same to everyone? Justice was done, but there’s a lot more justice left to do. There’s injustice to undo as well.

I hope that’s the message people take away from this.

I normally stay out of these things, but this is close to home. You see, Ms. Rodgers lists a Phoenix, Arizona address on her website. She offers services that look like legal services. Ms. Rodgers is not a licensed Arizona attorney. I checked. She never explicitly claims to be licensed in Arizona, but she also never offers any kind of disclaimer clearly explaining that she isn’t licensed here. That wouldn’t matter anyway, as I’ll explain in a second. The of-counsel lawyer listed on her website, Donna Seyle, is not a licensed Arizona attorney either. I checked that too.

Rule 31 of the Rules of the Supreme Court of Arizona governs the regulation of the practice of law in Arizona. It gives the court jurisdiction over Ms. Rodgers and Ms. Seyle, and it defines the unathorized practice of law. ER 5.5 of the Arizona Rules of Professional Conduct also governs the unauthorized practice of law. Specifically, ER 5.5(b) explains that “[a] lawyer who is not admitted to practice in this jurisdiction shall not: (1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law.”

As explicit as the rules may be, the ethical issues involved in what Ms Rodgers appears to be doing are actually even more clear-cut than it appears from the rules alone. The State Bar’s UPL (unauthorized practice of law) Advisory Committee has written an advisory opinion pretty much exactly on point. They have posted it online here. It is the first opinion appearing on the State Bar’s webpage discussing unauthorized practice. In it, the committee considered whether an out-of-state lawyer admitted to practice law in states other than Arizona could relocate to Arizona and practice law of the states in which he is admitted while physically present in Arizona. Here’s the committee’s conclusion:

An out-of-state lawyer, not admitted to practice in Arizona but living in Arizona, may not practice law limited to the law of jurisdictions in which he is licensed. The out-of-state lawyer may not perform the practice of law in an Arizona office of record, either the office of the out-of-state lawyer or an admitted Arizona attorney.

The attorney in the opinion even wanted to clearly disclose the jurisdictional limitations of his practice on his letterhead and business cards, and he was not going to solicit or advertise to Arizona residents. Those are limits Ms. Rodgers does not seem to have imposed on her practice. The committee still shot him down. I don’t know if Ms. Rodgers has some clever argument to get around Arizona’s ethics rules and the advisory opinion directly on point, but I’m going to offer a little advice to anyone else contemplating the same kind of thing.

Only maintaining an Arizona address makes a lawyer look like an Arizona lawyer. Having a website that doesn’t plainly state that a lawyer is not licensed in Arizona makes it worse. The State Bar of Arizona does not mess around. They put a form on their site for reporting unauthorized practice of law. We have an ethics rule, ER 8.3, that requires reporting by a member of the bar when that lawyer knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.

I probably wouldn’t be writing about this if it weren’t for the things Ms. Rodgers wrote in her little tirade. Take this, for instance:

I have been accused by ‘more experienced’ colleagues’ of being an unethical attorney simply because I practice law online or because I practice law in a state where I do not live or because I market my practice online. Apparently, many experienced attorneys cannot understand how I could possibly have a non-traditional law practice and still be ethical. Well, too bad! Too bad that you do not understand. Too bad that you are so rigid in your ideas of how law should be practiced that you criticize and attempt to ostracize any attorney trying something new instead of asking yourself, ‘what could I maybe learn from her?’ And too bad that you won’t pull a young lawyer aside and point out areas you think present an ethical hazard but instead choose to publicly discourage and belittle them. And too bad that you are quick to judge and react apparently before you have read the ethics rules and requirements in the states where I am barred. I have. And I have applied them to my practice. Thank you very much.

In no uncertain terms, she is admitting to practicing law in a state where she does not live. Because I’m pretty sure from her website that that state happens to be Arizona, I think she may have a big problem on her hands. Based on the rules and the opinion I mention above, I am fairly confident that her particular type of non-traditional law practice is likely not ethical here. I’m happy that she read the ethics rules and requirements in the state where she is barred, but she needed to review Arizona’s rules as well.

My intention isn’t to publicly discourage or belittle anyone, but to provide a little dose of reality. Ms. Rodgers should reassess her conclusion about whether experienced lawyers should quit scaring young lawyers about ethics:

Instead, why not give tips on how to look up and apply ethics rules and/or make young lawyers aware of the top ethical pitfalls that lawyers face? And young lawyers, my message is do not be afraid. Do not let the word “ethics” prevent you from establishing a law practice, even one that is cutting edge. Instead, do your research and apply the rules to your practice. And when in doubt, call your state’s ethics hotline.

My conclusion is very different. In my opinion, lawyers should be afraid of ethics. Attorneys get disbarred all the time, and the State Bar of Arizona takes attorney discipline very seriously. No lawyer, especially a young lawyer, is going to see every ethical pitfall. Whatever it is that you want to do may be the next best thing in lawyer marketing since sliced bread, but there’s no rule insulating from attorney discipline those lawyers who engage in innovative but ethically-prohibited business practices. The truth is that ethics rules will prevent plenty of lawyers from opening up certain types of “cutting edge” practices, just as the criminal laws ultimately stop many of my clients from operating their “cutting edge” businesses.

I am absolutely astonished that Ms. Rodgers would publish an article arguing young lawyers shouldn’t fear ethics rules when in that very article she admits to things that suggest her own law practice is prohibited by the ethics rules of the state in which she’s chosen to practice. It’s even more outrageous that she seemingly boasts about the research abilities of other young lawyers and the fact she did ethics research on her own.

I’m not using ethics as a weapon. I honestly don’t care what Ms. Rodgers does. The bar, on the other hand, probably does. Although young lawyers may be able to ignore crotchety old lawyers hurting their feelings about the ethics of doing things they feel are perfectly okay, they’ll have a lot tougher time with that when it’s the bar that comes knocking. Our supreme court is more than willing to use ethics as a weapon against lawyers of any age when it feels the circumstances require it.

If you want to hear what he had to say about his former client on CNN, watch the video below. I wouldn’t recommend viewing it if you think you might have problems stomaching a faux cowboy in a deep state of denial proclaiming the guilt of a dead man whose life was once placed in his undeserving and likely incapable hands.

The video mostly speaks for itself, but you can read some great blog posts about it here, here, here, and here. Willingham’s appellate lawyer even wrote about it here (the link is to the blog, as the link to the post itself seems to be broken).

I don’t have much to contribute to the discussion aside from my disgust. When I complain about bad defense attorneys, I’m usually talking about lawyers who could never in their wildest dreams hope to hold a candle to David Martin’s lack of ethics. I don’t believe I’ve ever met a lawyer who’d trash a deceased client on national television. I hope I never meet one. How David Martin ever managed to get himself appointed to a death case is beyond me.

Knowing that, what do you say when you know your client’s new offense was allegedly committed while he was out on bond for another felony offense and the judge asks, “counsel, do you have any recommendations regarding bond?” Does it matter if the same judge is assigned to the client’s other case and presumably knows that the client was out on bail when he or she supposedly committed the new offense? Does it matter if the prosecutor doing coverage, who recommends a bond amount, is the assigned prosecutor on the client’s other case and presumably knows the client was out on bail when he or she supposedly committed the new offense?

In a situation like that, everyone but you is operating under some kind of false assumption. It’s not uncommon. In fact, I encountered a few situations like that last week (hence the post). They either don’t remember your client was on release, or they don’t know about Article 2, Section 22. Regardless, you know they’re wrong. You’ve probably told your client he isn’t entitled to bond, and when the judge asked you for a bond amount, the client was probably grinning from ear to ear thinking it was his lucky day.

In a situation like that, the State Bar of Arizona would probably direct you to Ethics Rule 3.3, Candor Toward the Tribunal. Here it is:

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

Sure, it’s an important rule, but does it really apply? The constitution is legal authority, but is it directly adverse to the position of your client? Your client wants bond, obviously, but his position was that he couldn’t get it. The judge and the state are the ones who hold the position which is contrary to legal authority. Also, is arguing for bond a false statement of fact or law? Doesn’t the rule seem to only require you correct a false statement of material fact or law that you previously made to the tribunal?

Some of these questions are answered to some degree by ethics opinions, but I don’t think the answer is clear. How big of a factor is the way the judge words the question? Does merely asking for recommendations regarding bond give rise to a duty to tell the court your client isn’t entitled to it? What if the judge assumes the client gets bond and just asks you for an amount and a reason? What if he just asks you for an amount? Just a reason? Do you argue for the bond amount you know your client wants, or do you just throw out a number and say as little as possible? Is the way you word it going to make a difference? What if you say, “if the court is inclined to set a bond amount, X amount is appropriate for Y reasons?” Can you argue freely if you assume the court and prosecutor think proof is not evident or the presumption not great as to the present charge?

You can probably guess by now that I’m just going to ask questions here without really answering any of them. Every situation is different, so I don’t think there’s any single right answer. However, I think it’s fair to say any good criminal defense lawyer is going to keep his or her client’s interests in mind at all times while advocating for the clients within the boundaries of the ethical rules (duh). In the right situation, there are ways to argue for what your client wants.

One fascinating thing to me about what I’ve described is that I don’t recall law school professionalism ever covering a fact pattern where everyone was wrong but you. Maybe they thought learned judges and prosecutors didn’t make mistakes like that. If so, they’re wrong. Situations like the one I’ve described happen regularly. More often than most people think.

Because of that, it’s probably not a bad idea to figure out in advance how you’d react.

Multiple clients have said to me that local high-volume DUI firms told them, “if you hire us for your first time regular DUI, we can get the judge to suspend all but one of the ten mandatory days of jail.” That’s true. It’s a reasonable guarantee because it’s a virtual certainty, but it’s misleading for that same reason. That result has nothing to do with the lawyer. The client could get that “deal” if he or she just pleaded to the court. That’s the likely result if the client loses at trial. I don’t think I’ve ever seen a first-time regular DUI defendant plead to the charge and not get nine days suspended. Those firms left the clients with the impression that getting them that “deal” was something special, and had the clients not gone to another attorney, they might have spent the entire representation thinking that was the case.

I honestly don’t know why lawyers would say things like that. Are they banking on the fact clients won’t talk to any other lawyers? Don’t they think the combination of misleading information, high-pressure sales tactics, and tons of clients is going to get the bar involved sooner or later? Maybe they don’t care. Maybe what they’re doing isn’t necessarily unethical if they are wording it properly (though I disagree), but it’s going to make some clients really angry. I don’t know anything about running a mega-firm, but to me, it seems like an awfully stupid business practice.

Interestingly, at least one Justice on the Supreme Court of Arizona disagrees. Every Arizona attorney is required to take a professionalism course. When I took the course, we watched a video of Chief Justice Ruth McGregor talking about the need to increase civility in the practice of law. I recall being confused when she said something to the effect that removing zeal from the rules was a huge step in the right direction. I got the impression that she felt it made a big difference. Can’t an attorney be a zealous advocate while remaining civil? Can removing one little word make such a big difference? How many attorneys really changed the way they represent clients based on that change?

If Justice McGregor is right, I’m worried. How did attorneys eliminate zeal from their representation? Have clients been forced to accept a lesser degree of representation? I’m concerned that may be what the Supreme Court really wanted. If civility was all they cared about, they could have just amended the rule to say “[a] lawyer shall provide zealous representation to a client while remaining civil at all times.” I hope I’m right and that clients haven’t been made to suffer in order to promote civility.

It looks like some new lawyers have jumped into the fray. Taking a cue from viagra vendors, some scumbag attorneys have decided to spam my poor little blog. They put up stupid comments talking about how great they are and linking to their website. The spam comments were completely unrelated to the posts. I won’t provide a link, as it will just encourage them. If they’re attacking little-old-me with spam, they are probably big enough to have more visitors than I do. A small number of people will notice me complaining about their marketing practices, but my link will probably just make them look more important. I’m pretty sure it’s a losing fight, but please correct me if I’m wrong.

I’ve purposefully avoided discussing marketing here, as I don’t really have much to say on the subject. When I started this blog, this was my thought process: I like writing. I need an outlet to complain about the things that frustrate me and make me eager to get to work each day. I want to learn HTML and PHP in my spare time. Blogging seems like a good way to combine all of that, right? I vaguely thought it might somehow serve as a marketing tool and possibly bring in a client or two if the content was good enough.

Well, I turns out I’m bad at marketing. I doubt the firm has gotten a single client because of this blog. I haven’t learned HTML or PHP very well either (try using the search function on this blog). On the other hand, I’ve enjoyed blawging, and I think I’ve written some decent posts. Blawgers seem to be a fairly close-knit community, and I’ve had a good time meeting and communicating with other blawgers. I learned there are some things I didn’t think mattered that do matter (like giving your blog a promotional name), and things I did think mattered that don’t matter (for some reason, I thought it was common courtesy to ask someone before putting them on your blogroll). I think I’m pretty aware of blawging customs at this point.

What those spamming lawyers did is more than just against custom. I view it as tantamount to spray-painting the outside of my office building with their name and number. It wastes my time cleaning it up and tells me they are either unethical or too incompetent to properly supervise their staff. If it’s an ethics issue, I think it will self-correct. An attorney who trolls blogs and self-promotes with comments-spam is probably nearing the end of his or her legal career (or so I hope). If I were an inadvertnently-spamming lawyer, I’d still be worried about my state bar ethics committee if I didn’t address it ASAP. If my marketing guy went too far, I’d rein him in or fire him. It’s the only honorable thing to do.

I won’t pretend to be all high and mighty. I also won’t try to shame spammers in general, as plenty of far better blawgers have already done that. On principle, I’m not putting any links in this post. Check my blogroll for people with good things to say on the subject. All I have to say is the following for the sleazy attorneys who spammed me: if you messed up and hired a shady SEO guy, you should be prepared to apologize and fix the problem. If you’re so desperate for clients that you resorted to spamming other lawyers’ sites, you should probably focus more on the quality of your legal services. I didn’t appreciate taking the time to delete your irritating comments, and I bet you didn’t earn yourself a single client doing it. I think I’m not alone in saying that under no circumstances would I ever consider recommending you or your network to anyone.

One county’s program is particularly great. The woman who runs it is knowledgeable, fair, and very easy to deal with. Most importantly, she seems genuinely concerned with making sure everyone she supervises succeeds. Often, I get the feeling diversion programs and probation departments are run by people who hate criminal defendants, see no problem with forcing them to pay outrageous fines or jump through ridiculous hoops, and generally like to feel powerful by messing with other people’s lives. That’s definitely not the case with this program. The fines and other requirements are very reasonable, and when I have a client with a nasty case and a lot to lose, I strongly recommend they consider participating.

In that same jurisdiction, a lot of indigent defense work is performed by private defense attorneys who contract with the county. Many private criminal defense attorneys there use indigent defense contracts to supplement the income they get from private clients. Some of the jurisdiction’s criminal defense attorneys’ entire practices consist of contract work. In that county, most contracts pay an attorney a set amount per case, with different rates depending on how far the case progresses. If the attorney resolves the case before the defendant is arraigned, the attorney will be paid much less than he or she would for a case that ends up in superior court.

Recently, I spoke with the lady who runs the diversion program I discussed above. She mentioned some contract attorneys never returned her calls or responded to her letters. Many of their clients missed the opportunity for diversion and ended up being indicted. She wondered why those lawyers weren’t more eager to enroll their clients in diversion.

Ever the cynic, the first thing that came to my mind was that the attorneys got paid more if their clients didn’t get diversion. In fact, in that jurisdiction, a contract attorney will be paid over three times as much pleading out a case at the first pretrial than they would assisting the client to enroll in diversion prior to arraignment. In both instances, the attorney would have (hopefully) reviewed all of the police reports and other evidence. They would have (hopefully) looked into any potential factual or legal issues and spoken at length with their clients about the case. The only difference as far as time and effort goes is that in one situation the client gets diversion and the attorney gets a little bit of money, while in the other, the client gets convicted and the attorney gets much more money.

I’m not a big fan of pay-by-case contracts in general. They immediately create a conflict of interest between the lawyer and the client in that there is no financial incentive for the lawyer to do more than the bare minimum. Extra fees are usually difficult to get. However, although not providing any incentive for doing a thorough job isn’t ideal, actually incentivizing a bad result for the client seems much worse to me.

I hope those attorneys had good reasons for not enrolling their clients in diversion. It would be a real tragedy if they were sacrificing their clients’ futures for financial benefit, but I’m skeptical. They have a powerful incentive to throw their clients under the bus. A bad result for the client (i.e. indictment and conviction instead of dismissal) means more cash for them.

Buyers or managers might like the fact they know exactly how much each case will cost the county, but what’s the cost to the people being defended?

Law schools should do something, as they are primarily responsible for the current state of the legal profession. Unfortunately, I doubt that what they’re likely to do will make any difference. They will probably just add another course to the curriculum. Maybe some smart professors will convince the powers-that-be to change the language of the ethics rules. After all, amending the rules to no longer require “zealous” advocacy instantly made lawyers much more civil to each other, right?

The problem is not a lack of knowledge or well-drafted rules. The fundamental problem is the way law schools recruit and educate future lawyers. Law schools are clearinghouses for people who want to make a lot of money working steady hours behind a desk. Any high-paying office job will do. Most law students don’t care if they ever represent anyone. I have attorney-friends who graduated before I did and have yet to interact with a single client. They don’t care. They like it better that way. Many professors have never represented clients either. Some are even hostile to practicing attorneys. The higher your law school GPA and the more academic accolades you receive, the more likely you are to get one of those highly desirable jobs where you sit behind a mahogany desk in an expensive office with a great view billing hundreds of dollars an hour to nameless, faceless corporate clients. The most sought-after jobs of all, prestigious clerkships, will guarantee that you have no clients for at least a year.

I suspect the biggest contributor to the current state of the profession is the fact that most attorneys are too removed from the people who actually pay their salaries. It’s easier to steal from a stranger. There are always going to be bad lawyers who steal from clients. If law schools focused more on recruiting people who really wanted to be lawyers and tried to avoid admitting people who just want to make a steady upper middle class salary sitting at a desk, I bet they could drastically reduce the number of unethical lawyers, at least the type that have been popping up in the news lately.