Exhibit 2 to the Motion for Summary Judgment in Pham v. Jones is a lawyer’s solicitation letter to potential clients. He quotes a price range of $100-$300 for most misdemeanor cases, and $500-750 for most felony cases.
The lawyer mentions “trial by jury” in the cover letter and twice in the brochure he includes with the letter: once in a list of “alternatives” rather than going to jail and once under “How I Handle All Cases:” “7) JURY TRIAL – I will represent you in court to the best of my abilities with candor and determination.”
We know from the Findings of Fact and Conclusions of Law in Pham v. Jones that one such lawyer charges the maximum fee ($300 for a misdemeanor, $750 for a felony) when a case is reset more than once. This arrangement motivates his clients to plead guilty at the second court appearance (to avoid paying the maximum fee).
Nobody is going to get in the habit of trying misdemeanor cases for $300 or felony cases for $750. A lawyer taking 15 new cases a week doesn’t have time to interview witnesses, research the facts of any case, and do the other things necessary to prepare for trial. Are the letter and brochure deceptive? If they’re not, they skate awfully close to the edge.
There will always be low-bid lawyers. Their target demographic is people who have (or whose families have) the money to bail them out, but don’t have the money to hire a lawyer who will spend any time working on the case. The letter lawyers would probably say, “We’re providing representation to people who don’t qualify for appointed lawyers but couldn’t afford counsel otherwise.”
They would be correct; this is a flaw in the system. People who are unable to make bail get court-appointed lawyers. They often do not get good representation, but they often do, so at least they have some chance. People who have lots of money have lots of lawyers to choose from. If they pick right, they get good representation. People who make bail and only have a little money left for a lawyer are stuck with low-bid representation — this is the flaw. Low-bid representation is not good representation. Judges pressure people who make bail to hire a lawyer, and then define “lawyer” as “any living thing with a law license.”
(What’s “good representation”? It’s representation that is up to the standard of care of the criminal defense community. A practice of pleading cases on the second court setting is not up to that standard of care. Prosecutors know what the letter lawyers do, and what they charge; even in the cases that shouldn’t be tried, the letter lawyers’ clients are not going to get the same plea offers as those who have paid an appropriate fee to a lawyer who will investigate, research, and try their cases.)
Here are a few ideas for solving this problem:
First, the vast majority of people have to pay too much money to get out on bail. Most people accused of crimes have virtually no risk of flight or danger to the community when they’re released; these people should be released on PR bonds instead of having to pay bondsmen to get out of jail.
Second, the judges should relax the standards for appointing counsel so that more of the people who get out on bail can have appointed counsel (whose competence the judges can control) instead of low-bid lawyers (whose competence the judges can’t easily control).
Third, we lawyers should educate the public about the difference between a $750 lawyer and a $7,500 lawyer. If the folks getting these letters from letter lawyers knew what it took to actually defend a criminal case, many of them would find a way to come up with the money to hire a proper lawyer.
Another thing that experienced criminal-defense lawyers can do is to cultivate young criminal-defense lawyers. A competent young defender, with less overhead, trying to build a practice, can take cases for less money than more-experienced lawyers would charge, and can dedicate the time and energy that each case requires. (Contrast the low-bid lawyer who is taking 15 new cases a week — if the average case lasts only two months he has 120 cases on his docket at any time, and can spend an average of 30 minutes on each case during a 60-hour work week.)
When a potential client calls and doesn’t have them funds to hire me, I will steer him toward one of several young lawyers I know who can compensate for inexperience with enthusiasm and dedication. These lawyers charge less than me, but more than the letter lawyers. Nobody is going to get good representation for $750.