Opray Onobay Ublicopay

Sometimes people call and ask me, using a phrase that I’m not going to mention here because I don’t need any more such calls, whether I take cases for free.

Of course I take cases on which I’m not compensated. I think that any lawyer worth his salt helps people who can’t afford him. In the criminal courthouse, the problem of the working poor is a serious one, and we’re not going to solve it by abandoning to the tender mercies of the lowest bidder those people who have jobs and can make bail (and so will be denied indigent representation by judges trying to save a buck) but can’t afford to pay for the work that needs to be done to preserve their rights.

(The separate problem of the indigent sometimes getting poor representation is also serious, but it is diminishing in Harris County. People sitting in jail with no money at all get better representation than people who can afford bail but don’t have a rainy-day fund.)

What the callers really mean, though, is, “will you take my case for free?”

There are lots of working poor accused of crimes, and one lawyer doesn’t have to represent all of them. It’s okay for a criminal-defense lawyer to choose the cases she takes without pay (and puts her own money into, since it’s often cheaper to pay expenses out of pocket than to ask the court for funds under Ake v. Oklahoma) based on some criterion other than “because someone asked her to.”

For example, the lawyer might choose to help people charged with a certain sort of case (misdemeanor possession of marijuana? murder?), or people of a certain demographic (I often represent young black males charged with picayune first offenses for free to keep them out of the hands of the low-bid lawyers because the first charge, if not vigorously contested, often leads to a years-long cascade of bullshit resulting in prison time) or people with a certain relationship (friends and family of former clients? fellow churchmembers?).

The lawyer might choose to take cases in which she has special competency. The Latin phrase that shall not be named means “for the public good,” and the criminal-defense lawyer can decide how her contributed time will best add to the public good.

The criminal-defense lawyer can also decide to take cases only for those who will most appreciate it. There’s nothing wrong with expecting some psychic reward in exchange for our valuable time. Sometimes that reward might be the satisfaction of sticking it to The Man, or just a job well done, (I volunteered today on a case in which media reports and online court records convinced me that the defendant was getting a raw deal; I think I can beat the case and keep it out of the press henceforth, which will be satisfying in itself) but sometimes nothing less than an appreciative client will satisfy.

The criminal-defense lawyer is entirely within her rights refusing to represent for free someone who is most likely not going to appreciate it.

Appreciation is, as a rough general rule, directly proportional to the fee. Do the same excellent job and get the same excellent results for two clients, one of whom has paid fifty Gs and the other of whom has paid nothing, and the former will think you’re the best lawyer ever while the latter thinks, eh, I could have done just as well pro se.

But the underappreciation of free representation is mitigated when the free representation is unexpected. The client who doesn’t know that he can possibly afford you, who comes to you hoping that he can, is pleasantly surprised when you take his case for free, and grateful for your representation at any price; the client who comes to you seeking free representation is getting nothing more than he thinks is his due and treats you accordingly.

It’s not the answer to the literal question, but it’s the answer to the real question; it saves both me and the caller time and aggravation; and it doesn’t harm anyone: my answer, when a caller asks if I take cases without getting paid, is usually a simple “no.”

6 responses to “Opray Onobay Ublicopay”

  1. Mark, I admire you for a host of reasons, not the least of which is your courage to stand against those who forsake our Constitution. Your integrity and generosity are rare qualities seldom seen these days. I do wonder why though you would wish to keep the case out of the press? Seems this is only encouraging more of the same…

    • You’ll notice that he didn’t name his client or state any details about the case.

      I have a hunch about what case he’s talking about, but I’ll keep it to myself.

  2. If somebody calls and asks if you’ll take their case for free, how on earth do you know this person doesn’t have a six-figure income?

    When I was in college, I was in a fraternity, and there was a lawyer in town who was a brother in my fraternity who would take our cases for free if we were ever in trouble. Now that I’m a lawyer, I do the same for a local chapter. It doesn’t hurt matters that the campus police at their college tend to commit Constitutional violations left and right.

    • When your fraternity brothers call looking for free representation, is the first thing out of their mouths, “do you do opray-onobay cases,” or is it, “I’m a Lambda at ESU, and I need your help”?

      • Definitely the latter — though I’m involved enough with the chapter that oftentimes I know the person calling to be a member of the fraternity as soon as they say their name. Sometimes they even insist on paying me after I say that I’ll take the case for free.

        Though I do accept compensation if their parents are willing to foot the legal bill. It kind of defeats the purpose of ___ ____ if the (often well-to-do) parents are the ones paying for it rather than the broke college student himself. But it’s often the case that college students either want to keep their parents in the dark about it; asking your parents to pay your attorney’s fee necessarily requires that you tell your parents you got arrested for misdemeanor marijuana possession.

  3. Mr. B., you my friend are in for a healthy heaping of karma. Some of the young black kids that receive your generosity will wonder why they call the white man the devil, while some see it as white guilt.

    No matter what, I believe the act of kindness is from the heart and shows that you are not full of yourself yet. Which brings me to being honored to nominate you for the Public Hero Award. You earned it long long ago.

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