What’s a little money between friends?

[Update: A follow up post with additional thoughts here.]

I always thought we were brothers (and sisters). You, the criminal defense lawyer in private practice, and I, the public defender. Cousins of a sort. We had one common objective: acquittals defending the Constitutional rights of those unlucky enough to be sucked into the vortex that is the criminal justice system.

But now it seems that there’s this schism between us. This divide that I’d never noticed. Your annoying wife, if you will. The one who tolerates me, but doesn’t really like me. I’m the Democrat to her Republican. Commenter Bill Thompson explains:

Your observations are but the tip of the iceberg relating to the inherent conflicts between the private bar and public defenders. The “money” factor is the absolute wedge dividing otherwise natural allies. Apart from the scare tactics you reference is the over-riding division between the two regarding general policy considerations. PD’s here complain about the phenomenon of over-indictment, while private practitioners celebrate it as “the difference between driving a Chevy and a Cadillac”. PD’s speak of decriminalizing drug offenses while profit-minded attorneys rue the day. It’s these differences which typically land a lawyer interested in criminal defense in one camp versus the other. Of course, there’s also the practical considerations of running or not running an office. Of paying or not paying support staff. Of looking for or not needing to look for clients. Of contributing or not to judicial candidates. Under the best of circumstances, the alliance between PD’s and private practitioners of criminal defense will always be tenuous at best. Loyalties are unfortuately compromised by the Almighty Dollar…

Say it ain’t so! While I acknowledge that in a purely economic sense we have divergent interests, I always thought that we were united by our ultimate goal. That we could rise above the pettiness of the pursuit of the dollar and instead join hands and smoke a Jerry Garcia fueled joint of peace, love and Constitutionality.

I’d imagine that every most some private attorneys do have a momentary selfish thought when talks of decriminalization make the rounds. After all, drug offenses would make up the bread and butter of the average attorney’s practice. Don’t we all know those criminal defense lawyers, who will take any case, for any price? Of course we do.

I guess I’ve never considered the economic viewpoint of the private attorney, because I’ve never had to. So I’m doing it now. I know that the regular voices in the blawgosphere will certainly deny this, but they’re a small minority (statistically speaking). So what of the majority? Is there a wedge between us? Is it money?

Maybe Norm isn’t that far off base in his call for an universal public defender system, after all.

And because a post like this wouldn’t be right without some music, here are two videos, one for the older among you and one for the younger, plus this bonus link.

If you were born after 1980, watch this (Mr. West uses some bad words, so if you don’t like that kind of language, don’t listen):

2 thoughts on “What’s a little money between friends?

  1. Bill Thompson

    As a career PD, I’ve long ascribed to the belief that one of the advantages of this occupation is the more “genteel” practice of law. When counseling a client, we’re not preoccupied by the inherent conflict of representing a person who owes us money. I can’t imagine having to advocate for clients, vouching for their credibility and putting the best possible face on their situations knowing the person has lied repeatedly about when the remainder of my fee will be paid. There’s also the phenomenon of fees being based not on the worth of the effort put forth, but “what the traffic will bear.” I’ve heard many of my colleagues in private practice “joke” that the best client to represent is a scared rich guy. Such a client is ostensibly used to the concept of being paid more than they’re worth such that the quid pro quo seems wholly reasonable. Moreover, given what they have to loose, they’re willing to part with a great deal of it to keep the rest. (Money doesn’t do you a whole lot of good when you’re sitting in prison.) In my experience, the rich, though convicted, continue to be viewed as stable, contributing and successful members of the community, more prone to get a break from a judge than some homeless wretch. I’ve overheard many judges who inquire of private counsel prior to sentencing their client, “Are you retained or appointed?”, as if that should have anything to do with final disposition. But it does and in that regard, their accumulation of wealth continues to serve them well. In fairness, I have also encountered several (I wish I could say many) private attorneys who take on indigent cases and contribute their own money for investigation, expert witnesses and the like, driven by their sense of commitment and professionalism. It actually costs them money to represent their clients. Given these realities, I like to think a kind of Robin Hood-esque fairness plays out. Take from the rich and give to the poor. When you live in a country based on “money talks and bullsh#t walks”, why would be expect our criminal justice system to be any different…

  2. Pingback: Depends on what “money” means | a public defender

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