I have worked with this particular court-appointed client now on a number of cases, and I guess he is beginning to feel more comfortable with me. “Give it to me straight, Mr. Koehler,” he says to me over the phone. “You get paid more money if I cop to a plea on this case, don’t you?”
Let me be clear on this: I learned early on in my career not to push a plea deal on anyone, even when I thought it was absolutely in the client’s best interests. For one thing, people are contrarians. Any hint that the lawyer is wedded to the plea usually results in the client rejecting it. For another, I have learned that people almost never regret taking a case to trial. Even when they get slammed on the sentence. They got their day in court. That often seems to be enough for them. And there is never any blow back on the lawyer. After all, they have just seen the lawyer go to the mat for them and they appreciate it. Where regrets enter the picture, it almost always involves a plea. Oh, clients will say wistfully when you ask them about an old conviction. My lawyer talked me into taking the plea. I really wish we had taken it to trial.
So I have learned to say all the lawyerly things when discussing a plea with a client. I talk about how I can’t make a decision for anyone. I just lay out the options with a discussion of the pros and cons of each.
And it was no different when I discussed the plea offer with this client. We had in fact set the case for trial, and it was only when he called me back later that we got the prosecutor to re-extend the plea offer and then accepted it. In other words, he cannot claim I have been pushing this plea on him.
So why does he suffer from this misconception that I get paid more for a plea?
When I was a public defender in Philadelphia, clients used to accuse of us of recommending a plea because it was less work for us. I am not pushing anything on you, I would respond. But I have an ethical duty to convey this offer to you. You can always reject the offer after you hear me out.
There was actually truth to this accusation: Trial is always more work than a plea.
But that doesn’t explain my client’s misunderstanding in this case. Court-appointed lawyers in D.C. are not salaried. And we are not paid a flat fee. We are paid hourly. So yes, while trials may be more work, they also pay more money. The incentives favor trial. That is how it should be.