It’s strange to look at someone who’s doing something so vastly different from what I do and realize that to almost everyone outside of our narrow little field, we’re the same. Really smart people hire terrible, high-volume lawyers for their criminal cases. The difference between a lawyer who personally works every aspect of your case and a lawyer who farms your case out to an associate carrying a caseload that would make a misdemeanor prosecutor blush isn’t that clear to most people. A lawyer is a lawyer. A person whose career seems as foreign to me as a day-trader or a sales rep looks an awful lot like me to many people.

What does it feel like to stroll into court late and yell your client’s name to the gallery hoping someone responds? How does it feel telling a client the fee she’s paying you is for someone else to do the work? I guess people who do that don’t say they do that, so scratch that question. What is it like to not know the names of your clients and be able to talk to them about the things that matter to them? I don’t really care to know. An acquittal doesn’t mean an awful lot if you don’t know what your client’s going home to. The flip side I guess is that a guilty verdict doesn’t sting as much if you have no clue what your client’s losing.

I was having a beer a few months ago with a lawyer who dominates the criminal law market in a certain jurisdiction. He also has a thriving divorce practice. I admire lawyers who rent office space from him, but all I knew about this guy was that he was supposed to be some kind of model of success. We somehow got on the topic of how the word “zealous” got written out of the ethics rules, and he said he “never got into that zealous representation stuff.” He distinguished himself from many young lawyers who seek his advice. Some of those people he called “young lawyers” were practicing before I was in grade school. “So-and-so gets a client a ten-year deal and the client files a bar complaint. I get the co-defendant twenty and he names his first-born after me.” He also told me about a death penalty case he had before I was born. He joked, “I sure wasn’t zealous, but that poor asshole had a lawyer.” The state didn’t murder the client, luckily.

Occasionally, a different lawyer of roughly the same age and experience as that guy lets me use his office in Phoenix when I need to print something or meet a client who can’t make it out to Chandler. It’s night and day comparing the two of them. The Phoenix lawyer seems to never take vacations, lives modestly, and charges just enough to afford his lifestyle. He’s at the peak of his profession though. For almost every type of Arizona state criminal case, he’s the first person I suggest people call. I can’t link to a website with his info because he has no online presence. For the better part of a century, he’s just been making a living being a really good lawyer. That’s it. But it’s a lot.

It seems to me that the difference between those two lawyers boils down to a difference in their respective goals. For one, the goal is clearly making money, and law is a way to do that. For the other, the path is the goal. The practice of law is its own reward. In reality, every lawyer probably seeks a mix of both, but it’s easy to see which goal a lawyer favors.

The idea of using a profession like law as a means to an end instead of the end itself causes a lot of problems for me. I hate participating in any system where people can too easily confuse luck with skill. I try to set goals that I view as genuinely indicative of hard work and talent. Money doesn’t seem like one of those, so it isn’t my primary goal. I could win the lottery. I could create a giant Ponzi scheme. The government could redistribute fortunes right to me if I just convinced the right people it was a good idea.

A worthy goal for me is one that cannot be attained too easily, so if I can luck into it, whether it’s a business goal or a personal goal, the process probably won’t keep my interest. Maybe I’m just protecting my ego by participating in only those things where experience and knowledge and hard work will shield me from the uncertainty of every new upstart overtaking my position, but I don’t think it’s a bad way of looking at things. If business dries up, I could be broke in no time. If the goal is being a skilled professional, after I’ve achieved that, nobody can take that away. I still need money, but making it the primary focus would make my career feel awfully empty.

The lawyers with their names on the side of a bus probably don’t share my philosophy on goals. The goal for them is clearly money. Many lawyers feel that way. That’s why salespeople regularly contact my office suggesting unethical fee-splitting agreements. I wouldn’t have to spend hours each week playing ethics whack-a-mole with my email inbox if desperate lawyers weren’t buying into all of the SEO and illegal referral scams disbarred lawyers keep forcing down our throats.

If the goal is making a cheap widget, then fine. Make the cheapest widget, market it, and sell a bunch of it. The world needs cheap widgets. If the goal is to join a profession where lives hang in the balance, then the analysis changes. The practice of law is its own reward, but it’s also its own punishment. Money may come, or it may not. You’ll be middle class if you’re good. If you aren’t, then there’s always an MBA. The last thing the world in general, or this profession in particular, needs is more greedy lawyers who’d just as soon do something else if the money was there.

Like typical troll comments, they made ad hominem attacks. One writer accused me of presuming my clients guilty, another accused me of going off “half-cocked” without knowing my facts, and yet another seems to think I merely hold myself out as someone who practices criminal defense and accused me of throwing gossip into the potential jury pool. They asked condescending (and obvious) questions, like whether I’d read the DR (police report) and if I was joking by “speculating based on facts presented by the news media.” One commenter even seemed to suggest the criminal defense bar wasn’t talking about this. That’s bizarre, as I haven’t made it from a metal detector to a courtroom in Maricopa County Superior Court for the past few weeks without overhearing some attorney mention it.

The comments missed the point of the post entirely. They read it as commentary about David DeCosta’s guilt rather than commentary about a hypothetical situation I find fascinating. They must have missed it when I said that he “apparently” tried to sneak in drugs, that “my guess” is that the client just happened to get two lawyers who gave in to pressure, that “my hypothetical is far-fetched, to say the least,” and that “I’m sure I’ll never know” how much of a role the client played in what happened with those lawyers.

The second comment from Pamela Nicholson, a Phoenix lawyer with ton of experience and a good reputation, is the most interesting. She insisted that “this is not a ‘fascinating’ exchange among defense lawyers . . . this is a very serious discussion about what a criminal defense lawyer does, and does not, do.” It may be that kind of discussion now, but that has nothing to do with the original post.

If David DeCosta gets acquitted or the case gets dismissed, I’ll probably write about it. It’ll have no bearing on what I discussed in that previous post though. I hypothesized about what I thought was a fascinating situation. If the situation turns out to be different, my thoughts on a hypothetical relating to that situation as it appeared at the time will not have changed. Some commentators seemed to get the point and contributed something productive to the discussion.

I don’t just re-post news stories. I also don’t break news stories. I blog about things that interest me and that I think will interest my readers. My goal is always value added blogging. The blogs I read, the ones that made me start blogging, are not ones that merely recite the facts of news stories. They discuss ideas, the implications of the current events or personal and professional experiences.

I’m grateful for those troll-like comments because they made me think. As a defense lawyer and a blogger, am I really obligated to refrain from discussing the implications of the alleged facts of any criminal news story until the defendant is convicted? Would I have been wrong blogging about Bernie Madoff before he was convicted? Can I ethically blog about Allen Stanford? Will my credibility as a defense lawyer be destroyed if I put up a post on Rod Blagojevich tomorrow? The answer is obvious.

It certainly wasn’t my best post. I could have worded it better, and the same is true of my comments. However, I doubt there’s any way I could have expressed my ideas without angering those commentators. I could have filled the post with “allegedly,” “supposedly,” and “according to the news,” which I basically did, and they still would have been upset. It hit too close to home, and the tone of the comments reveals that. I imagine a police officer blogger in Chicago or Atlanta would get a similar response posting commentary related to this or this, respectively.

I am amused by the sudden, massive response I got. I hope this post gets the same response, and not just because the previous response appears to have resulted in a massive increase in my website traffic and search engine relevance. It’s interesting to see how fellow members of the criminal defense bar reacted to commentary related to one of their own. I wish they’d have discussed it in a friendlier manner, and I’ve probably succeeded in pissing off three of my colleagues, but I guess that’s the risk of publishing my thoughts: people will miss the point.

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.

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.

I’m not a very trusting person, and I’m especially suspicious when there’s no way to verify what someone tells me. That’s the case with victim interviews. I bet a lot of prosecutors never bother asking victims, but in most instances, I have no way of proving it. I can’t later seek out the victim and find out. That would be a bar complaint waiting to happen. If the matter goes to trial, I don’t normally use my cross-examination time, my first opportunity to question the victim, to find out whether he or she was told I wanted to do an interview. Maybe I should.

I don’t think it’s possible to overstate the advantage the prosecution can gain by preventing defense attorneys from interviewing victims. Most of the time, there are no written statements from victims. You generally have only a vague idea about what they’re going to say. You have no clue how believable they will be. You won’t hear the little inconsistencies in their stories until you get to trial, so it creates a lot of unnecessary pressure. It may be that you end up having little if anything to work with, or the state’s case could unravel altogether. When the only evidence against a defendant is going to be the testimony of victims, it can be extremely difficult to assess the strength of the state’s case prior to trial.

Prosecutors have a lot to gain by not asking victims about doing a defense interview. There’s no good way to make sure a prosecutor hasn’t lied about asking them. I had one case where my client swore the victim moved to Kansas, and the prosecutor kept swearing she had contacted the victim. She kept telling me my client should take the plea because the victim would show up for trial. Trial came around, and there was no victim. Case dismissed. I’m pretty sure that prosecutor was lying to me, and she probably wasn’t the first one. I don’t think I’m being unreasonable by not trusting prosecutors to do something that might ruin their case and that I have no way of showing they didn’t do.

Defense attorneys, by and large, don’t do this for the money. We have to pay the bills and run an office, and compensation is good, but we do this because we love what we do and because we believe in what we do, whether it is helping people or whether it is fighting to preserve what little rights we have left as citizens.

This might be petty, as I’m just disagreeing with his generalization because my generalization would be different, but I think the vast majority of defense attorneys do it for the money. I also think an extremely small number of criminal defense attorneys are actually cause lawyers. That includes public defenders. I think you could probably fit all of the cause lawyers in Arizona in one courtroom. It’s a big state, and there’s no shortage of criminal defense lawyers.

I think most defense attorneys have at some point had a vague desire to help people, but I don’t see a lot of my colleagues really fighting for anything. They’re usually just mad about the daily headaches inherent in criminal practice. It’s more about them than it is about their clients. Their primary concerns involve office politics at the PD or keeping the lights on in their office. A friend of mine uses the term “broken lawyers.” I like that term too, and I think most defense attorneys fit in that category, not the “cause lawyer” category.

I see lawyers abandon their clients in some way or another every time I sit in court. I see attorneys talk to the judges ad naseum about privileged information when their clients miss hearings. I’ve seen attorneys make illegal immigrants plead guilty to conspiring to smuggle themselves. I’ve seen pleas to higher-than-charged offenses. The vast majority of private attorneys rarely show up on time, and they almost never warn their clients. The clients just sit there looking desperate, wondering what’s happened to the guy they paid to help them. Cause lawyers wouldn’t do that, would they?

A lot of criminal defense attorneys aren’t much better out of court. When they talk about their clients, it’s as if they aren’t real people. They’re this group of rascally little children. “My clients just don’t get such-and-such.” “They just don’t understand this-or-that.” It isn’t unique human beings with families and jobs and hobbies and dreams; it’s a class of people they’d never befriend. I think that kind of attitude is especially prevalent with a certain type of public defender. Cause lawyers wouldn’t think like that, would they?

Seeing those things so frequently tells me most criminal defense attorneys aren’t cause lawyers. They don’t do it to fight for something, but because it was the first thing they learned after law school. I don’t know an awful lot of lawyers who have switched practice areas. They start with something and stick with it. They use what they’ve learned and try to make more money with it. I hear more defense attorneys say they left the PD for more money than I hear say they left to be able to give clients more personal attention. Most of the prosecutors I know who have become defense attorneys did it for the money, not because they couldn’t sleep at night knowing they might be sending innocent people to prison. Most people don’t become defense attorneys to make big money, but to be more comfortable. They need a job. Existing costs a lot. Most of the rest do it because they’re stuck. It’s a select few that do it to help people or fight to preserve our few remaining rights.

This is probably my most cynical post yet, but I’ve seen some particularly bad lawyering lately (posts will be coming soon). Because I’m curious if I’m the only one with such a gloomy outlook, I’d like to know what you think. Here a simple poll for my amusement:

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.

Anyway, in two cases this year where I wrote the assigned prosecutors letters presenting overwhelming exculpatory evidence and requesting the cases be dismissed, I had conversations like this:

Me: Have you looked over what I gave you?
Them: Yes.
Me: Are you willing to dismiss the case?
Them: We can’t dismiss these cases.
Me: Are you serious?
Them: Yes.
Me: You mean to tell me that you can’t dismiss any case involving these charges?
Them: Yes.
Me: Even with all the exculpatory evidence I gave you?
Them: Yes.
Me: Even if you know the suit is without merit?
Them: (silence)
Me: I’m pretty sure you’re not supposed to pursue charges unless there’s a non-frivolous good faith basis in law and fact.
Them: Sorry, it’s our policy.
Me: And that trumps Arizona’s Ethics Rules?
Them: (silence)
Me: Is this a written policy?
Them: (silence)
Me: What if I had a video of someone else committing the crime?
Them: Videos can be doctored.
Me: What if my client was incarcerated elsewhere when it happened?
Them: I’m sorry, I can’t dismiss these cases, and I’m very busy.

In all fairness, I should admit that one of those two cases was ultimately dismissed (though not due to the exculpatory evidence I presented) and the other one resulted in a plea to the only charge there was a factual basis to support, but my head still hurts after trying to understand how a no-dismissal policy works in light of Ethics Rule 3.1.

Assuming some high-ranking prosecutor does have authority to dismiss any case, what happens if the defense attorney doesn’t keep moving up the chain of command? Will the assigned prosecutor really proceed with a trial they can’t possibly win? Won’t that prosecutor be violating the ethics rules as soon as he or she realizes the case is unsupported by evidence? Sure, no evidence 100% guarantees guilt or innocence, but I think it’s an enormous waste of public money to not allow the person with the most intimate knowledge of a loser case to dismiss it.