Saturday, March 21, 2009

Solo Criminal Defense Out of Law School, And Other Dumb Ass Ideas

Been gone for 10 days. Anyone notice? Actually got some work done. Stepping away from daily blogging gives me a great deal of respect for people who do it everyday as a matter of course.

Now that the shock of Madoff remaining in jail has worn off (yawn), I report this question on twitter that struck fear in all competent criminal defense lawyers around the country, or the blawgosphere, if we're being honest.


"Is it normal for someone who just graduated law school and passed the bar to practice solo criminal defense and still live with his parents?"


My response: "anyone who just passed the bar shouldn't be doing solo criminal defense, can't speak for living with parents."

To those in criminal defense, and others practicing law, I'm right. To those outside the legal profession, I'm just stifling competition, fearing my client base dwindling, and trying to keep the criminal bar from growing.

There has always been a perception that criminal defense is "easy." We don't produce mounds of paper like civil lawyers (a notion that is correct for those who have never handled a white-collar case), in many states there are no depositions in criminal cases (reading some civil depos lately makes me wonder why they don't ban depos there. Thirty-five pages of "objection to the form" seems a bit wasteful), and most of the cases resolve with a guilty plea in court shortly after the initial appearance or arraignment.

I'll never forget one of my first encounters with a civil lawyer in a criminal case. I was deposing the victim of a DUI accident. During a break he said "so what do you do, just go to court and plead these cases out?" "No, I take depos, prepare motions, fight them until I get a good offer or the jury comes back." I remember the look on his face was as if I asked him the square root of 48905.

When I talk to young lawyers who say "maybe I'll do criminal defense," I often hear "yeah, I'll just take misdemeanors and minor ("minor") felonies."

What they intend to do is go to court one time, get the state's first offer, and convince the client that they should take it. What a great lawyer. When they realize that some clients understand that jail is probably not an option, that same young hungry lawyer tells them that jail is a "possibility." I tell those same clients that jail is a "possibility" like the possibility of death from a tooth extraction.

I have a title for these lawyers.

"Paraders."

They have manila files, with the fee written on the inside cover. Sometimes the payments made are listed, and maybe a cell number for the client. There may be a paper of two stuck in there as well. Their fees, minuscule, commiserate with the time they put into the case.

In the last 2 weeks, 3 clients have called me to see if I could reopen their cases, misdemeanor and felony. I can't. I expect more to come.

I believe to practice criminal defense a newly minted law student should be required to do one of three things: be a prosecutor, be a public defender, "clerk" with a practicing criminal defense lawyer who's been practicing criminal defense at least five years.

That though, is a pipe dream. Clients are entitled to the lawyer of their choice, and if they want it to be someone who's ink on their law degree is not dry yet, they can have that lawyer.

And yes, I know, across the country prosecutor and public defender offices have hiring freezes. So go find a criminal lawyer to work with. They're not hiring either, or you just think you're worth $100,000?

Over the next few months, I expect more laid off civil lawyers and newly minted lawyers to walk into criminal court, where it's "easy." I expect them to get lots and lots of clients who don't know any better and are attracted by the notion of a criminal defense lawyer for $500.

I look forward to talking with these clients about their experiences when they come whining to me about their imminent deportation, their job loss, benefit loss, or just pure stupidity, all assisted by a lawyer who wasn't good enough to admit they had no idea what they were doing.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

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