Now that I have moved back to D.C. and opened my own criminal defense law firm, former colleagues at the Defender Association of Philadelphia have asked me how I enjoy private practice. For them and for other public defenders who might be thinking about making the transition, I offer the following five advantages to being out on your own.
1. Clients Don’t Question Your Law Degree.
A client once turned to a colleague of mine at the Philadelphia public defender’s office after she had just won a big case on his behalf. “You’re very good,” he told her. “You should think about going to law school.” It’s true. Many clients do not think public defenders are real lawyers.
2. Clients Like You. You Like Them.
Many defendants do not like public defenders for no other reason than that they are public defenders. “I want a paid lawyer!” You only value what you pay for. And while it may sound harsh to suggest that public defenders don’t like their clients, the fact is, it is difficult to develop the same relationship you have with a client to whom you can devote your undivided attention. By the time you get around to interviewing your fifteenth client of the day, you are just not the same person you were when you interviewed the first one.
3. You Can Pick Your Clients.
A couple of years after I started working at the public defender’s office, I inherited a case in which the police found our client outside a corner store where the burglar alarm had just gone off. When the police entered the store, they found a cell phone with the client’s photograph on it in a plastic bag containing goods from the store. The police asked our client how her cell phone had gotten into the store, and she responded that her two-year-old baby must have thrown it there through a window. As the detective testified at the preliminary hearing, this would have meant that the baby threw the phone threw a closed window. The cell phone would then have had to make a 90 degree turn right, travel down 15 feet and then drop into the bag, where the bag then tied itself up.
After further questioning of the client in which she gave equally implausible explanations, the police eventually took her to the district building, Mirandized her, and then took a full confession. Acting on the probable cause based in part on this confession, the police later returned to her house with a search warrant and recovered other stolen goods from the corner store in her house. To make matters worse, at a previous trial date, the client got impatient that her case had not yet been called, and exclaimed to the entire court that she just wanted to plead guilty and get the whole thing over with. The judge recused himself. Thus, the new trial date at which I was running the list.
The client didn’t return my phone calls or come in for a pre-trial interview. But I knew I was progressing as a trial lawyer when I looked at the facts of the case and, instead of cringing and wondering what I was going to do with the case as I might have done when I was first starting out, I concluded that I could beat the case. Specifically, I litigated a pre-trial motion to suppress in which I asked the judge to exclude from trial all of her statements, including the Mirandized confession, as well as evidence gathered through execution of the search warrant as the tainted fruit of illegal police conduct.
They should have taken her into custody and Mirandized her as soon as they recovered the cell phone in the corner store. Instead, they let her dig herself deeper and deeper into a hole, and only Mirandized her after she had incriminated herself to such an extent that she felt she had no option but to confess. Everything after that point was the tainted fruit of the illegal police conduct and should be suppressed. With only my client’s cell phone in the store left to explain, I thought we might have a fighting chance of beating the case.
While I was wrong (the judge denied my motion, and my client eventually pleaded guilty to second degree burglary and was sentenced to 18 months probation), the point is, there are no difficult cases. But there are difficult clients. And, as a private attorney, you have the luxury of turning away these difficult clients. Yes, they are entitled to counsel. But that counsel doesn’t have to be you. For every lawyer who turns down a client, there will be two lawyers who will take the case.
I was talking with a colleague of mine who does mostly white collar cases and who works out of his home. You aren’t concerned about bringing clients into your home, I asked him? No, he said. I wouldn’t want to represent anyone I wouldn’t invite into my home.
While I myself am not able to be quite so discriminating, it does feel good to turn down a client when things just don’t feel right. I was talking with a potential client the other day on the phone. I’m not quite sure what it was, but I was getting the wrong vibrations. You know, I said finally. I don’t think this is going to work out. You should look for someone else to represent you on this matter.
The same option is available to the potential client who doesn’t like something about me. As a result, neither the client nor the attorney are forced on each other. You don’t end up with an attorney and client who are not comfortable with each other, a situation that is highly anathema to effective representation.
4. Clients Listen to You. They Take Your Advice.
This afternoon I was watching one of my colleagues represent a defendant he had been appointed by the court to represent on a felony gun case. The purpose of a preliminary hearing in D.C. is to determine whether or not there is probable cause to send a felony case to a grand jury. My colleague did the best job he could with some bad facts and a cagey narcotics officer who wouldn’t allow himself to be pinned down on the record. Not surprisingly, the judge decided to hold the case over for the grand jury. She also refused my colleague’s attempts to get his client released from custody.
At this point, unhappy with the situation, the defendant decided he wanted to address the judge directly. Despite adamant warnings from both the judge and his lawyer, the defendant persisted, and the judge eventually relented. It wasn’t quite as bad as a client I once had who yelled out in court as the police officer testified: “He’s lying! There weren’t two guns. There was only one!” Nonetheless, in seeking to exonerate his co-defendant who was in the car with him when the gun was recovered, the defendant clearly incriminated himself in a public forum.
While all the defense lawyers sitting the room had to cringe, the statement was obviously most painful for my colleague. My colleague is an excellent trial attorney, and I couldn’t help thinking that the defendant would have taken the lawyer’s advice to remain silent had the lawyer not been court-appointed. The fact is, defendants don’t trust court-appointed lawyers to have their best interests at heart. Many clients often told me when I was in Philadelphia that, since I was paid by the same state that had brought the charges against them, I was probably working for the prosecution.
As it is, I have noticed a tremendous difference in the respect paying clients afford me. I am the same lawyer I would be if the court had appointed me. But again, the difference is that the paying clients have chosen me. They have used their hard-earned money, sometimes dipping into their savings, to pay me. There is no question about my loyalties. It is very difficult to represent a client effectively when the client doesn’t trust you.
5. The Court Values You and Your Time. You Get to Go First.
I represented a client yesterday at a court listing on a DWI charge. I ushered him past all the other people standing in line outside the courtroom waiting to be admitted, and he was seated in a special section of the courtroom — the jury box — set aside for defendants represented by private counsel. Everyone else was crammed into the gallery like sardines. Private counsel cases were called first, and I had him out of there within a half hour. Why? Now that I am a paid lawyer, my time is suddenly much more valuable.
This was in marked contrast to the years I spent as a public defender, when I occasionally had to suffer the humiliation of having a ready case stepped back from the bar when a private attorney appeared with a client with a case to try. Oh yes, Mr. Smith. Let’s get your case taken care of. I know you must have other listings you need to get to. Mr. Koehler. Would you ask your client to take a seat back in the gallery? We’ll get to his case in just a moment.
Maybe it was just Philadelphia. Maybe it was just certain judges. I always understood when it happened, and, truth be told, it didn’t happen all that often. But, when it did happen, it sent an unmistakable signal to everyone in the gallery of two things. First, it signaled that the court did not value the public defender’s time as highly as the private counsel’s. Secondly and more importantly, it signaled that the court did not value the rights and time of a defendant with court-appointed counsel as highly as the defendant with paid counsel. And we wonder why indigent defendants don’t trust the system.
I didn’t begin this entry intending to complain yet again about the woes of being a public defender. Wasn’t it just me who in a recent post told public defenders they should stop whining and move on? But complaining is where I ended up.
My perspective is obviously very much influenced by the time I spent working as a public defender. And as I’ve been able to witness first hand the benefits of working as private counsel (I do not yet take court appointments in D.C., and don’t know if I ever will), I’ve developed new insights into the challenges faced by public defenders, challenges I was not fully able to appreciate while I was facing them directly. You can sometimes lose your perspective when you are in the middle of things.
That’s not to say that there aren’t also challenges to being a private defense attorney. For one thing, you spend a lot less time practicing law and a lot more time pounding the pavement for business. I was at an ABA meeting yesterday at which a senior attorney – a solo practitioner – was asked how much time a new attorney should expect to devote to marketing. You work on your existing cases, he responded. You sleep. All the rest of your time you spend on marketing. And that part never ends.
At the same time, when all is said and done, I have found that the challenges of being a paid lawyer are definitely worth it. As a former colleague told me a year or two after she left the public defender’s office, at a time when for me the prospect of going into private practice was still in the distant future: If I knew it was going to be this much fun, I would have done it a lot sooner.