Sunday, May 04, 2008

The Neutering Of The Private Criminal Defense Bar

What happened to us? What are we all so afraid of, and when did we become so afraid of, everything?

This includes me, although I'm growing tired of being "careful" about everything. What I say, what I say here on my blog, who I represent, how I represent them, speaking the unpopular truth.

When I first started this blog I wrote a post about judicial elections. I wrote about how some judges suddenly become "nice" during campaigns. It was full of sarcasm and the "truth" about the politics of electing judges.

I received calls from judges - "very disappointed Brian." "Were you talking about me?" The buzz became loud. Lawyers began calling me. "Judges are upset, Brian...." At this time there was no local blog like there is now (run by an anonymous blogger who several judges still think is me). My post was tame compared to whats out there now.

But I took the post down, not interested in developing an uncomfortable relationship with the judges who had a problem with what I wrote. Why prejudice my clients should a case fall in front of them?

I regret taking it down. I actually don't have it anymore. Wish I did, because today, I'd put it right back up. I'm embarrassed I fell to the pressure of a few judges who for some reason didn't like my commentary.

But this is all over the place. We have blogs where lawyers and everyone else can anonymously comment on judges, prosecutors and fellow defense lawyers. Few defense lawyers would dare publically say that judge so and so did something they thought was wrong, or that a prosecutor is chronically unreasonable, or that one of their own stole a case from them by undercutting their fee just to pay the rent. Sure we have our rules of professional responsibility, but what about our obligation to be advocates and not just businessmen and women.

And those of us who practice in federal court, we've been smashed into submission on many fronts.

The recent indictment of a prominent criminal lawyer brought many of us to his defense, but still found a fair amount saying "be careful," "wait till the evidence comes out."

What happened to us, the criminal defense bar? Is it our job to stand up for justice, or merely to make sure we don't piss anyone off while representing those that the "Law and Order TV Generation" feels don't deserve more than an hour of legal process (including a confession to the prosecutor in his office)? Has it become all about the business of our profession?

We complain about elected officials ignoring the law and creating laws that only serve to please those outside the system who don't understand that being "tough on crime" is not akin to turning every misdemeanor into a felony and telling the folks at the rotary club that a stupid crime that no one cares about now carries a minimum mandatory prison sentence (at $20,000 per inmate per year). But when election time comes up and the defense bar's screams get louder and louder, none of us (including me) file to run against anyone. We just go back to bitching at the coffee shop and our anonymous comments on blogs.

I know in the end this is me ranting and that nothing will come of it, but I end with how I began - "what are we all so afraid of?"

Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit