It’s the client, my good chap

One of the primary reasons I started blogging was to express my thoughts and feelings about the criminal justice system. But the more I blogged, the more I realized that what it was really about was learning and sharing: learning new things and sharing experiences. Learning how to be a better lawyer, really. For the most part, the blawgosphere has served that purpose and it has enriched me as a lawyer and as a person.

There are times, though, when the blawgosphere exposes its ugly side. Slowly but surely, the blawgoshpere is moving away from actual conversation and closer to pure marketing. Everything is about the blogger and the blogger’s business or promoting their business. It’s getting a little dirty. Take, for example, this: Accident Prone, a public defender blogger, wrote about a common experience a few weeks ago:

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!

This was clearly a post about an experience the blogger had in real life, but still was instructive: Remember that it’s about the client and not about drumming up business. It’s not about making a name for yourself, but rather for doing something that’s in the best interests of the client. If you do a good job, you’ll get a good reputation and the business will follow and so on. Really, everyone should know this. I know I keep harping on it, but you’d be amazed how infrequently other lawyers actually act in this fashion. Take this response to Accident Prone’s post from a private attorney:

Dear Public Defender,

I am sorry that I can get a better deal for your client than you can. Maybe it is because I have been practicing law for about as long as you have been breathing. False confessions, eye-witness allegations and testilying cops don’t frighten me. I plea bargain, but I do so from a position of power, even when I am the “underdog”. I give your client a feeling of protection and ability.

Chances are I know, taught, mentored or helped elect the judge or prosecutor you are dealing with and s/he will take a chance on a client I represent because I bring a sense of reliability that you don’t enjoy. That is likely because your investment in our legal community is limited to telling your fellow lawyers what rubes we all are or rolling your eyes as we invite you to belong to our bar associations.

Oh don’t forget that while you are guaranteed a salary,I am not. Hence, you don’t work on every holiday or go in on weekends or even return calls… I do.

I give my clients my private cell number and my e-mail address. I am available to him or her 24/7. I am still in my office at 11pm on a pretty regular basis.

I did my time in Legal Aid. I appreciate the work that you do and I enjoyed it when I was doing it, but let’s face it, if I didn’t describe you, I described many PDs who get a lot of credit for dedication, but aren’t always as dedicated as they think. 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.

Warmly
Private Lawyer

Sigh.

This is what I mean. A large part of that comment is purely self-serving. It also belies a fundamental lack of understanding of what Accident Prone’s complaint was and what the greater, more deep-seated problem is that we as public defenders face. This is not a contest between public defenders and private attorneys, yet there is a consistent percentage of the private bar that engages in such divisive behavior.

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. I know you have a business to run, private lawyer. I don’t begrudge you that. But when you start lying to clients or spreading misinformation that makes my job tougher, without taking responsibility for it, I will not sit silent. Just to make that extra $1500 (and I know it is a tough economy), you are willing to stick your nose into a file, give bad advice and then hold up your hands when asked to deliver. That doesn’t work, won’t work and shouldn’t work.

Look, I’ve said to clients on occassion: “why did you hire so and so?” or “I bet you won’t hire so and so again, will you?” But that’s not because I want him to be my client, but rather because I care about the client and want to see him get good representation and certain attorneys have certain reputations.

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.

It is our responsibility, both as members of the private bar and public defenders to quash this nonsense when we see it. I can’t tell you the number of times I’ve seen clients – mine and that of fellow public defenders – get enticed by the promises of the huckster. “Well, you can only get me the minimum on murder, he can get me manslaughter”. No, he can’t and I’ll tell you he can’t, but it’s your money and your life. If you want to do it, I can’t stop you, Mr. client. “Well, if I pay him $500, he can get me a program.” Right and so can I, because you’re eligible for a program. Not because he’s in bed with the judge. And this is the problem. Sometimes we’re fighting the fight on four different fronts: the judge, the State, the client and some unscrupulous members of the private bar.

We don’t need to be doing that. All of us in the profession should put our clothes on in the morning with the singular goal of doing something to help a client that particular day. If we don’t, the entire profession gets a bad name.

Scott, to whom I showed this exchange last night, offers his take from the perspective of the private bar. You’ll find some of the same notes being struck there, because he gets it. Let’s hope, after reading these posts, “private lawyer” gets it too.

[We tried to synchronize our posts, but lazy old me got behind. Sorry Scott.]

[Further: Forgive the disjointed thoughts in this post. I wrote and re-wrote it 5 times, so there are leftover fragments from previous iterations.]

30 thoughts on “It’s the client, my good chap

  1. Pingback: Defending People » Nothing to Do with PDs and Private Lawyers

  2. Ryan

    “I can’t tell you the number of times I’ve seen clients – mine and that of fellow public defenders – get enticed by the promises of the huckster. “Well, you can only get me the minimum on murder, he can get me manslaughter”.

    -Isn’t it possible that the client is lying to you?

    Do private criminal defense attorney’s really troll courts looking for clients from the public defender’s office? If so, that’s really sad.

    If the clients have the money or access to the money then why should they have public defenders in the first place? I fully believe in the need for public defenders but if someone can afford a private attorney why should taxpayers foot the bill?

    Reply
    1. Gideon Post author

      I guess it’s possible that the client is lying, but in most cases I’d venture a guess that they’re not. There are indeed some – a few, only a few that do do this.

      There are others that are approached by clients looking to do better, and in order to entice them they promise something without looking at the file or taking the client’s word at face value.

      And about the money aspect: family members often “come up” with the money when a private lawyer is needed. I don’t begrudge them that.

      Reply
  3. Jessica Foley

    Hi,

    I have been reading your posts and do take slight offense. I am a ‘private lawyer’, who also happens to do some work on the bar advocate list for juveniles and in cases involving abuse and neglect. It should not be ‘private lawyers’ v. ‘legal aid’. I think that being a legal aid attorney is a good way to learn the ropes and get great experience defending people. It shows dedication and there are a lot of people who cannot afford an attorney.

    I don’t make my clients (private or otherwise) promises that I can’t keep. I tell them the best case scenario and the worst case scenario, and I put in a lot of time and research to make sure that they get the best result. Why do I do that? I do it because first of all, I take pride in what I do and want to do my best. It also serves a second purpose, the better I do, the better my reputation will be and the more clients will seek me out. Selfish? Perhaps, but absolutely necessary.

    Also, I take some pride in my website, and get many calls from people who can’t afford an attorney and in many cases make too much money to get appointed one. It is informational, and the sole purpose is not to ‘get clients’. It gives me credibility, it allows me to share my knowledge, and to give perspective clients an idea about my personality and how I might handle their case.

    The internet is about sharing information. Some of that information is ‘marketing’. Some of it is both. It’s not greedy to hope that you gain some clients from all your efforts blogging.

    Regards,

    Jessica

    Reply
    1. Gideon Post author

      Let me ask you this:

      What do you think of Mirriam’s post and Tony’s comment? What was it about and what was the response about?

      In my opinion, he clearly misses it and instead gives us his resume.

      How is that not blatant marketing and how does that not belie a lack of understanding about a real problem?

      Obviously these posts have not been directed at the majority of the population.

      Onto your points: It isn’t about public defender vs. private lawyer. It’s about good lawyer vs. bad lawyer. In this case, the good lawyer happened to be the PD.

      It is informational, and the sole purpose is not to ‘get clients’. It gives me credibility, it allows me to share my knowledge, and to give perspective clients an idea about my personality and how I might handle their case.

      The internet is about sharing information. Some of that information is ‘marketing’. Some of it is both. It’s not greedy to hope that you gain some clients from all your efforts blogging.

      That’s all marketing. Every bit of it. Which is fine, but don’t pretend like you’re adding something to the conversation (a la the comment above), when you’re not.

      Marketing and selling yourself should be a by-product; an afterthought. It should be the side-effect of being a good lawyer. It naturally flows.

      I don’t know if you know any CT attorneys, but take those that most people in CT would consider “good” criminal defense attorneys.

      Not a single one markets (that I have seen). They all have websites (and I wish they’d blog, to share their expertise), [in fact, one of the best CT attorneys has the crappiest website ever] but they’re not out on there on twitter pushing themselves. Their work speaks for itself. That’s all the marketing you’ll ever need.

      Blog because you enjoy blogging, not because you want clients to look at your website (not you in particular) and buy your self-promotion.

      Reply
    2. Gerard

      I don’t think you should be offended ’cause I don’t think Gideon is really talking about you … your site doesn’t make promises. (Unless you say something different when you talk to clients.)

      I do think the demarcation between marketing and information sharing isn’t as black and white as Gideon is seeming to imply, and that’s okay.

      Reply
      1. Gideon Post author

        I think marketing is a by-product of giving information. But you have to give information for information’s sake, not for marketing, because the latter is pretty obvious.

        Reply
  4. Ryan

    I don’t think it’s possible for someone to sustain a viable blog for marketing purposes only. The lawyers who launch blogs as a marketing tool tend to fizzle out quickly.

    For me, to sustain a blog, it requires some passion, a lot of time and not writing about things to get clients. In fact, the only rhyme or reason that I blog about anything is because it interests me. That’s it.

    I don’t think blogging is an efficient or effective way for lawyers to get clients – it’s oversold. As you know, it takes a lot of time and effort to create a “substantive” blog.

    Hell, if I billed the time I spent on the blog I could have several big billboards on 84 and 91 like: “Lord DUI” or “Dr. Divorce” or something equally as offensive.

    Reply
  5. Ryan

    Sorry to keep commenting but you’ve got me engaging in some self-reflection which is a good thing.

    My blog would look different if I wrote under a pen name. I’d be rougher and take more risks. I’d give more opinions than I do now.

    I have to blog with clients in mind. I never want to have my blog used against one of my clients in court. I have to refrain from taking positions on some issues because I may be forced to argue the other side. My obligations to my clients are reflected in my writings.

    Speaking for myself, the marketing side of it is/has to be secondary. Through the blog, I’ve met people I’d never otherwise meet. If you said I need to sell my house, I need a real estate lawyer, I met this joker McKeen and he seems like an honest guy – that’s great but whatever money I’d make on the closing isn’t enough to keep me blogging at night, on the weekends, or while eating my peanut butter sandwich as I work through my lunch.

    Reply
    1. Gideon Post author

      Comment all you want – that’s what blogs are for!

      And my blog would be very different if I used my real name. It would be all videos.

      Yeah, how much is one really making off the marketing through their blog? Is it worth the effort – because if you’re marketing, it has to be done well. Doing it well takes time and effort.

      Reply
  6. Ryan

    For me, I’ve landed 2 clients that I trace directly from the blog. For what it’s worth, I’ve had 2400 unique vistors this month and I’ve gotten 2 clients all year. Maybe my blog costs me clients?

    You know what internet activities get me clients: 1. Fantasy Football/Baseball; and 2.) Facebook. Why? Because in both cases, I have pre-existing relationships with people and they trust me. My fantasy leagues are all guys I went to law school with who practice in MA or with the government. They’ve both referred cases to me and hired me.

    Facebook because it lets people I went to high school with know what I do and where I am.

    More often with a blog like mine, I get random emails from someone who was struck by a foul ball at Safeco Field in Seattle or people wanting me to evict a tenant pro bono.

    Reply
      1. Ryan

        If you ever go into private practice and take your mask off so to speak and use your blog for self promotion – follow the lead of Dan Schwartz. He balances the two very well.

        If you want to blog to read yourself write do what I do. Write randomly about a number of areas of law with no common theme. Sometimes write about a sport you follow, or a baseball player you met as a kid (John Trautwein) or interview the guy holding the Iraqi flag during opening day ceremonies at Fenway Park.

        Learn from me, posting about seaweed law is not profitable.

        Reply
  7. Ryan

    I have an Ipod (really a cheap Sandisk 1 gig mp3 player that I bought in a woot off) comment in response to this thread. If I were scoring (music kind of scoring) your post it would be how play when you clicked on the link.

    Reply
    1. Ryan McKeen

      Come to think of it, the Verve would be perfect. For this post, I had in my mind an imagine of someone in line to apply for the services of a PD when a private lawyer walks over and tries to get a client. The lawyer tells the prospective client that he can get a great deal. Cue Dylan:

      Advertising signs that con you
      Into thinking you’re the one
      That can do what’s never been done
      That can win what’s never been won
      Meantime life outside goes on
      All around you.

      Reply
      1. Heather B

        And perhaps on behalf of the client…cue Coldplay.

        In my place, in my place/ were lines that I couldn’t change/ I was lost, oh yeah

        I was lost, I was lost/ crossed lines I shouldn’t have crossed/ I was lost, oh yeah

        Yeah, how long must you wait for it?/ How long must you pay for it?/ How long must you wait for it?

        I was scared, I was scared/ tired and underprepared/ but I’ll wait for you.

        Reply
  8. LJS

    Back to the question of inter-attorney relationships. I work mostly in appeals, and I do form opinions about trial counsel’s work. Sometimes I give clients questions to ask habeas counsel about possible issues, or leave a memo in the file to habeas counsel about things that bugged me, but I also keep in mind (and remind the clients) that appellate work and trial work are very different and I have the benefits of time and hindsight.

    My feeling is the same for habeas counsel. Once in a while, I get letters or calls from a client who’s having problems with their habeas attorney. I tell the client I can’t get into the middle of that relationship, and generally offer general suggestions about writing or calling the habeas attorney to make sure he or she knows that there’s a problem. (And I’ll drop a call to habeas counsel to let them know the client got in touch with me and had some questions.)

    I also get letters from prospective clients, and generally say that I’d be glad to talk to their habeas/appellate/trial attorney, but I can’t give them legal advice, and their letters to me aren’t privileged so I ought not comment on anything significant. Again, I’m glad to try to help the assigned attorney, but I don’t want to interfere with the attorney-client relationship or undermine counsel, esp based on limited information.

    Reply
  9. That Lawyer Dude

    I have left comments on my blog and Scott’s and now I will leave one here. Your assignment of motive to me is untrue and you know it. I am not “marketing myself” on some blog from a MN PD. That is ridiculous.
    Re-look at Miriam’s post. Now make the following assumptions:

    A. She is a good lawyer
    B. The Private Lawyer is a good Lawyer.
    C. Private Lawyer did not solicit the client and
    D. Private Lawyer need not see discovery to decide he differs with her on the potential outcome. (Just go with it)

    Now ask yourself, why is her client in Pvt. Lawyers office to begin with? It isn’t marketing to say that Pvt. Lawyer brings value to the case and the way he can handle it and that Public lawyer did not.

    Well paid lawyers do not covet PD clients. They do however offer a value that PDs could offer but often do not. These “intangibles” are the difference between a trusting relationship and one where the client goes behind the back of the lawyer to seek a second opinion.

    The problem Gideon, is not that paid lawyers on the web or otherwise are marketing themselves. The problem is that not every lawyer on the web is provides a value to the client.

    As for lawyer marketing:

    When a lawyer succeeds in court, if he tells others about it, you call it marketing. I call it celebrating with colleagues. You’re in a PD’s office, you have colleagues there, many solo and small firm lawyers do not.

    Additionally, if the lawyer writes in his blog “I won a Trial!!” that’s not going to win him a new client. IF he explores why he won or why the other side lost, he has added value. He may be teaching what he learned or he may be teaching his style or even his view of evidence. That clients come to him from that kind of post is not a suprise. That client is a client who is making smart use of the Internet. The Internet is far more than a big YELLOW BOOK as Yellow book is now learning.

    What if one hired the world’s smartest lawyer, yet he was a fool before a jury??

    Based on your view, the client should only know how much the lawyer knows. Anything about the lawyers experience, demeanor, outlook is all verbotten. What does the client then really know?

    Client’s don’t care if the guy is Einstein, They want (and deserve) a lawyer who is smart and, can communicate and whose style and demeanor is in line with what he wants from a lawyer. Marketing tells that to a client.

    Maybe PD’s ought to have to market. Maybe client’s ought to be given a case voucher to hire any lawyer who will take their case. If so, maybe many PD’s who have burned out or even think that they are best because of what they know, will then have to compete for the work. I’d like to hear how many PD’s would rail against marketing then. Maybe then you would understand that even poor people deserve value and not just knowledge from a lawyer.
    Regards,
    TLD

    Reply
        1. Jdog

          Well, yeah; it’s precisely because of the assumptions that I think the unspoken assumption is questionable. Not necessarily wrong, mind you.

          Reply
  10. steve

    I recently stumbled upon this site and enjoy the debate about public vs. private defense lawyers. Suffice it to say that I am a public defender in New Jersey in one of the largest most active counties and also have experience in private criminal defense. The typical caseload of public defenders in adult trial court in this state exceeds 100 to as many as 150 indictable cases at any given time. The office of the public defender represents upwards of 90% of all criminal defendants in superior court. Not only do we handle far more cases in a given year than even the most experienced private attorney may have handled in the past 5, we also handle the vast majority of cases involving serious violent crime.
    My time in private practice was a stomach churning experience of being concerned only with the the bottom line. Associates would be fired if they dared to advise the client as to the worst case scenario if they were convicted at trial. The amount of effort put forth on cases would be in direct correlation to how much money the client had paid up front. Clients would be steered to trial no matter how overwhelming the evidence as long as the bucks kept coming. The tendency was to withhold information from the client so they wouldn’t get upset and hire another private attorney. The vast majority of private clients had little money to pay and cash flow was dependent on municipal court traffic cases and snaring a few of the exceptional cases where families would squander savings or property to pay for their family member’s defense. Trash talking public defenders is commonplace amongst local private counsel who compete for a very small percentage of defendants who do not qualify for the public defender. Even though the private caseload may be smaller, most of the time is disproportionately devoted to just a few of the better paying clients to the detriment of the rest. I find as a public defender, without the inherent financial considerations, I actually have more time to devote to my clients despite the higher caseload. The trial experience and skill that many public defenders develop is usually unmatched by the vast majority of private counsel (with some exceptions, although the best private attorneys typically are former public defenders and prosecutors). Typically the tactic of delaying a case is for the purpose of getting paid and has little to do with gaining a strategic advantage in a case.
    There is good and bad in every profession. Amongst public defenders, there are varying levels of skill. Some are burnt out. Some are indeed completely incompetent. But generally speaking, one’s odds of getting a skilled, competent trial attorney are better with the luck of the draw in the public defender’s office than with private counsel. In my next post, I think I will devote some time to how the public defenders office can improve its representation of clients. Guess what? Most of my suggestions have nothing to do with the law, and everyting to do with public defenders checking their political and social ideology at the courtroom door. Effective public defenders know that their success for their clients depends on whether the prosecutor knows that even in the most hopeless of cases, that you have the skill to pursuade a jury to acquit your client. Your trial skill and focus on the facts of a case form the foundation for the best defense of your clients. Couple that with respect and diplomacy when dealing with Judges, prosecutors and court staff and you have the makings of a very good criminal defense lawyer. Bring your politics into the courtroom, make excuses for your clients, act like a jerk, and be gun shy about trying cases and you will help perpetuate the stereotype of the public defender as an incompetent “pretender”.

    Reply
  11. Pingback: Be the Student, or Be the Lesson » Defending People

Leave a Reply