Nothing to Do with PDs and Private Lawyers

A post from Minneapolis public defender Mariam’s Accident Prone blog:

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!

Warmest Regards,

New York lawyer / blogger Anthony Colleluori: thinks the problem is that hired lawyers are better than PDs:

Dear Public Defender,

I am sorry that I can get a better deal for your client than you can. . . .

[self-aggrandizement explaining why Anthony can get the client a better result than any PD excised in the interest of good taste]

. . . 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.

Private Lawyer

Connecticut public defender (and figment of our collective imagination) Gideon has his own view of the problem:

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.

. . .

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.

And New York criminal-defense lawyer Scott “Paladin” Greenfield shares his perspective (sorry, guys, my copy of the memo musta gotten lost in the mail):

The essence of the problem here is that Miriam’s attack on the private criminal defense implicates what some private lawyers will do or say to make a buck.  In order to snare a client represented by a PD, some private lawyers feel compelled to belittle them, their quality, service and dedication.

. . .

Those in the private criminal defense bar either bring something to the table that makes them worth retaining to represent defendants, or they should find another area of practice.  Our experience, skills and dedication are what we offer.  Either they are worthy in themselves, or not.  They don’t become more worthy by beating up on public defenders to make themselves look better and brighter and nicer and worth many thousands of dollars.

What I think Tony, Gideon, and Paladin are leaving out is that the Private Attorney that Mariam is addressing can’t or won’t take the accused’s case, so she’s not trying to make a quick buck or snare the client, yet she is giving him specific advice that will affect the decisions he will make. She’s giving a second opinion without taking on responsibility for the choices that opinion will lead the client to make.

A lawyer’s time and her advice are her stock in trade. But Mariam’s Private Attorney is giving it away for free. Why? One can only guess. Maybe P.A. is trying to make a name for herself by running down PDs; maybe she thinks that the client (who doesn’t have the money to hire her) will spread the word down at the detention center that, if you do have the money, P.A. is the one to hire. Maybe she sees himself as an altruist, and thinks she’s helping the client by telling the client (without reading the file or knowing what the evidence is) what a “real” lawyer could do for him. Or maybe she just has a personality disorder.

Most clients need our help because they’ve made bad decisions before; they retain us to help them make the most important decisions in their lives. I try cases to juries — I’ve tried six in the last twelve months — but still I recognize that where I earn my huge fees is in helping the client make the correct go/no-go decision. Most criminal cases end in resolutions other than trials; it is almost always in guiding the client in making the least bad choices that a lawyer earns her keep.

Sometimes a potential client (or a lookie-loo) will call and ask me for a second opinion — whether he should follow the current lawyer’s advice and take deal X. “If you trust your lawyer, follow her advice. If you don’t, change lawyers.” I decline to give any other advice because that’s what people pay me for. “Our experience, skills and dedication are what we offer”; not promises.

When the new criminal defense attorney gives advice contrary to the current lawyer’s, she poisons the relationship and decreases the chances that the client will receive the best, most effective representation that the current lawyer is capable of providing.

This has nothing to do with PDs and private lawyers. When a criminal-defense lawyer says to an accused, “you should be able to get . . .”, she’d better be prepared to back that up by putting it in writing and signing on to the case. Or, as Mariam says, shut the f&*$ up!

0 responses to “Nothing to Do with PDs and Private Lawyers”

  1. You may be right about the focus of Miriam’s letter, though neither Gid nor I, and obviously not Tony Colleluori, took it that way. In any event, I know that Gid and I were looking at a bigger issue rather than trying to find a way to sidestep the substantive questions raised.

    Sorry you didn’t get the memo.

  2. The “bigger issue” is private lawyers’ disrespect for PDs, rather than lawyers interfering with any other lawyers’ relationships with their clients? I get it: you’re grumpy today, and don’t like being told when you’re wrong. (So maybe you should read Mariam’s post again tomorrow. She was explicit about the PA not trying to “snare the client”.)

    Mariam’s letter could have been written by you or me or any frustrated lawyer dealing with hacks hurting their clients by making prognoses about their cases without knowing about the cases and without being willing to put either their money or their reputations where their mouths are.

    Tony didn’t deal with that issue, but he basically copped to advising people whose cases he couldn’t take.

  3. There are good public defenders and there are bad public defenders. There are good private attorneys and there are bad private attorneys. Whether someone is a public defender or a private attorney is no indicator of which camp they may rightly claim.

    That’s what I tell potential clients who come to visit me.

    In fact, often I’ll tell them that, on average, public defenders are better because they spend more time on the front lines, in the courtroom. I tell them it’s kind of like being a medic on the front lines of a war. And just like that situation, there are often more casualties thrown at the defender, with less time to deal with it.

    So, it’s not that public defenders aren’t as good as private attorneys. As I said, often they’ve been exposed to more and thus have more experience upon which to draw. If I, as a private attorney, am managing my practice correctly, though, I’ve got more time to dig deeper and to spend more time helping the client understand what’s happening.

    My hope is that, in the long run, this makes me better than other attorneys, whether PDs, or other PAs.

  4. “Often prickly,” dammit.

    My own brain vaporlocked on the original dispute. I was trying to figure out how a NY private lawyer would think he’d get a better deal for a Mpls PD’s clients, as I was thinking that his expertise and connections were more likely to be in NY, than HCGC, and while I’d not doubt that a given Mpls private criminal attorney might, on balance or in a given situation, do better for his clients than given Mpls PD (or vice versa; I’m told by folks who have worked both gigs that either could be the case) I was wondering how he was thinking that his reach was that long. Although I wasn’t really thinking “reach.”

  5. (x-posted to Simple Justice)
    I have to agree with the Texas Tornado on this one. The issue isn’t trashing PD’s as a marketing tool. It’s a simple fact that a private attorney *should* be able to devote more time to the case than I can.(We both have the same number of hours available in a week–168).

    And I have no objection to a private attorney luring one of my clients away–far from it. Hell, I’ll gift wrap the file if you want. I’ve got too many now.

    What I have real, burning objection to is some asshat filling my client’s head full of moonbeams and then walking away. I already have to deal with the crap they bring in from their cell-mates, their cousin who had something similar happen and their over-protective mothers. What I DON’T need is some turkey who has no idea what he’s talking about telling them they should be able to get a deal that may be common in his county but our judges categorically refuse to consider.

    So take my clients–god bless ya. Use my sorry, overworked, grumpy ass as a selling point–I don’t mind. But if you’re going to do that, TAKE THE DAMN CASE. Otherwise, as Mariam says; “Shut the @#$#$ up.”

  6. Mark,
    Thanks for accepting Gideon and Scott’s “interpretation” of my response to Miriam and for gutting my letter so that the response and meaning of my reply to Miriam is lost on your readership (at least Gideon and Scott reprinted in full before totally misstating my mission). I guess if you want to set me up as some boogy man or jerk you suceeded by leaving out the major part of my post. In response to your reply above, my letter does not “cop” to Advising people whose cases I won’t take. I do not dispense advice to clients in my office or through e-mail until I am retained. To do otherwise is stupid and bad business. (I do answer questions on as a public service but that is far different and does not include destroying another lawyer).

    Joel (above) has quickly picked up the failing in all of your thinking here. I have no interest in Miriam’s client, nor do I criticize Miriam any more than she criticized me. It is an “open letter”; a device to speak to the “greater we”,.just as her letter was.

    Anyway, the point of my response was to show Miriam and her readers that there are two sides to the coin and that the real problem with her client was not the advice given gratuitously or otherwise, but to acknowledge that the client did not value the PD’s advice and that Miriam needed to understand why. I gave examples of what many other private lawyers do to add value to the relationship between them and a client. I do many of those things as you probably also do. I don’t do them all (though I aspire to). I don’t know any private attorney who does all. THAT WAS NOT A SELF AGGRANDIZING STATEMENT!!

    As for Scott and Gideon, they chose to “strawman” my response to serve a purpose on their blogs about lawyer advertising. Scott has a running feud with Mark Merenda about this. I am just a casualty in their war.

    I think Scott is also all wet on his Lawyer Advertising issue as well. I point out in my recent post on That Laywer Dude that if anything, Scott’s blog is an ad for his practice far more than my blog. If someone wants to know who I am, they have to dig out the info. On Scott’s blog, his name is right there. If one wants to see my website they must look hard for it, as it is not mentioned on my Blog’s page, Scott’s blog links directly to both his website and his e-mail. He can say he doesn’t blog for business, but if that is the case, why not blog anonymously? Why link his blog to his website?

    As I said, Miriam’s post may have been about a sleezy or stupid lawyer in her home town, but by writing an open letter to the private paid defense bar, she paints us all with her broad stroke. OTOH, my retort was about PD’s adding value to their valuable advice. There is more to lawyering than giving good advice. PD clients want to feel wanted. Hopefully PD’s will see my post (and maybe my thoughts here), and renew their dedication to the total client experience.

  7. Tony,

    Thanks for commenting.

    I think it’s Mariam, rather than Miriam.

    I didn’t take Scott and Gideon’s interpretation of your response; I read it myself. I omitted most of it because a) it was tacky and too long; b) I stuck a link to the whole thing right above it; c) that’s the way things are done in the blogosphere (rarely should a complete post be reposted elsewhere); and d) it’s my blog.

    It’s funny: Mariam wasn’t painting me with any sort of brush at all. Her post wasn’t an “open letter”. It was addressed to a single private attorney, not “private attorneys” or the hired bar; it could just as well have been written by one member of the hired bar complaining of the practices of another. (See, for example, Ollie.)

    I’ll bet that wherever Mariam practices there are ten times as many private lawyers who don’t do what she complains of as lawyers who do. (Gideon tweeted it with a more general comment; maybe that influenced how you read it?) I didn’t feel offended or feel the need to respond because she wasn’t talking to me: I don’t think dispensing legal advice without reading the file or knowing the evidence is a good idea; and I don’t tell people what they should be able to get unless I’m willing to put my reputation where my mouth is. Through your response to Mariam’s letter you conveyed, from the first sentence, the impression that you were trying to justify the practice by showing how you are superior to PDs: “I’m sorry that I can get a better deal for your client than you can . . . .”

    Clients’ satisfaction with their lawyers is directly proportional to the money they pay. PDs’ clients are dissatisfied not because PDs are worse lawyers, nor because the clients don’t feel wanted, nor because they aren’t getting value, but rather because they didn’t choose the lawyers and aren’t paying them. Lots of hired lawyers take care of their clients worse, in a myriad of ways, than PDs, yet people keep hiring them.

    I think Scott overreached with his position against marketing. Lots of lawyer marketing is vile — the blog posts, for example, that end “. . . so if you have this kind of problem, call me” — but lots of it isn’t. I think the sole-or-primary purpose test serves well. If it appears that the sole or primary purpose of the activity is marketing, it’s gone too far. Not only is it more demeaning, incidentally, but it’s also less effective.


  8. Tony,

    The difficulty you’re facing is that you refuse to admit the obvious, that you have no issue with self-promotion and believe that it’s an appropriate thing to do. Mark, for example, thinks my position is too extreme, and he openly says so. We disagree about where the line should be drawn.

    You, on the other hand, want to pretend that this is all about being a great humanitarian when it’s glaringly obvious that it’s not. You are correct, on the other hand, that you were a bystander in my crusade against marketing, though you opened yourself to collateral damage by inserting yourself in the argument.

    There is room for disagreement, both in the big issue of whether lawyer marketing is appropriate at all, and the smaller issue of where the line should be drawn. I’ve made my position clear, and I will happily bear the consequences of disagreement.

    Your attempt to argue that my blog is more of a marketing ploy than yours is silly, but I need not justify my reasons for having certain links on my blawg. I’ve explained this in the past, and it’s available if you want to find out what you’re talking about before spouting off. It’s your choice to opine in the absence of knowledge. It’s not my responsibility to correct erroneous assumptions.

    I note in closing that you use the handle “that lawyer dude” rather than your name. To whom is that supposed to appeal?

    Rather than pretend to be someone you’re not, admit it and defend if it you believe your right. But don’t expect anyone to buy into this pretense.

  9. There’s another reason to stay out of it. Clients hear what they want to hear, which isn’t always what you tell them. If you start discussing the case, then you create the potential that they are going to mis-interpret what you tell. There’s also the problem of the potential client telling you what you want to hear – how many times has your opinion changed after you read the reports, and investigated the case.

    We don’t have a public defenders office here, but I’ve encountered public defenders over the years, and they have been very competent lawyers. They may be over worked, but they know what they are doing. Even with too many cases they are probably going to do a better job than the lawyer who is willing to say anything to get a client; you know their number one priority is not helping the client.

  10. Hola Amigo,

    Long time no chat. I love the new look!!! As for the topic as a new private practice attorney and former PD I have to say that people who live in glass houses shouldn’t throw stones. I know several private bar attorneys who are hacks and should be out selling real estate and 5-6 PD’s in my former office should have their license revoked for malpractice.

    The PD’s office is part of the system and is their to expedite cases. PD’s slang hash and because they are soo overworked and overloaded with cases their clients don’t have a Chinaman’s chance (You should look up the history behind that saying, it is quite sad actually) of fair representation. Once in a while you run into a PD who actually has the support of his office and the knowledge and resources to effectively represent a client (gideon) but for the most part PD’s offices are triage centers where greenhorns with a license with the ink it was printed with still wet can “learn while they burn.”

    Justice is for those who can afford it and then you have to be smart enough to hire someone like Mark to have a chance at freedom. Like Mark said, the really good criminal defense attorneys are the ones who try cases and have the experience and knowledge to advise their clients as to when they should roll the dice and when it is best to bite the bullet.

    Happy Turkey Day,



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