On Zealous Representation and Public Defenders

I will remember this.  This is what the prosecutor promises you.

In another context, she could be intending this as a threat.  As in:  I will get you back for this.  In this case, she is trying to entice you into making a concession, and she is putting you on notice that she has a long memory.   She knows –and knows you know — that this can cut both ways.

Counsel for the co-defendant has come down with pneumonia, and has asked that your joint trial scheduled for next week be postponed.  The prosecutor doesn’t want to sever the case; that is, she doesn’t want to have to try your client next week and then put on the exact same case later.  She is now drafting the motion to continue the case, and she wants to know if you will oppose it.

Although you decided long ago that a joint trial is in your client’s best interests, you think quickly of ways you might be able to use a concession to your client’s advantage. Unable to come up with any ideas, you tell her instead that you will need to check with your client and get back to her.

No matter how this particular issue is decided, the question the prosecutor has put to you raises an interesting ethical dilemma for defense lawyers who face the same prosecutor again and again:  To what extent, if any, do you hold back on your duty of zealous representation on behalf of one client with a matter currently before the court for the benefit of future clients?

The answer should be simple:  You never do.  Your duty is your duty, feelings of others notwithstanding.  You take one case at a time and you worry about future cases when they arise.

But how about if you are a public defender representing multiple clients before the same court on the same day?  In this case, antagonizing the prosecutor or the judge for the benefit of one client might directly impact the interests of every other client you have that day.  Because let’s face it:  some judges and prosecutors can hold a grudge.   And they can take out their anger at a lawyer on the lawyer’s client.  I was astounded one time in Philadelphia when a particular judge – “Grumpy Santa,” we used to call him – refused bail for a defendant solely on the basis that he didn’t like the lawyer who represented the person.

There’s also a flip side.  No matter how carefully you cultivate your contacts with judges and prosecutors in order to advance a client’s interests, a lawyer only has so much capital he can expend on behalf of clients.  For example, standing outside the courtroom in full supplication mode, you look the prosecutor in the eyes and ask her if she couldn’t – just this one time – cut your client a break.

This is easy to do when you are a privately retained lawyer facing multiple prosecutors on behalf of a limited number of clients.   But a public defender – again representing multiple clients on the same day against the very same prosecutor – doesn’t have this luxury.  You can only ask for some many favors on behalf of a client.  After a while, the till is empty.

Somebody who reads this blog regularly asked me recently what it is I have against public defenders.  The answer is that I only have the highest degree of respect for public defenders.   The three years I spent at the public defender’s office in Philadelphia – my introduction to the practice of law — continue to inform everything I have ever done since.  When I found out yesterday morning that a person I know only from random musings on Twitter was a public defender, my respect for that person skyrocketed.  Only someone who has experienced it directly can understand the dedication it requires to work as a public defender, how it feels to deal with the workload and continual disrespect from clients and, yes, courts.

At the same time, during my still limited experience as a retained lawyer, I am continually struck by the differences between private practice and working as a public defender.  The sad fact is, you can work 24 hours a day seven days a week as a public defender and still not be able to devote the same amount of time to a case as a private lawyer can.  You can turn down cases and manage your workload as retained counsel.  Public defenders don’t have that luxury.