A blog by Miami Criminal Defense Lawyer Brian Tannebaum. Commenting on criminal law issues of local and national interest.

Monday, June 28, 2010

Where Are The Criminal Lawyers In State Bar Associations?

We have 85,000 lawyers in the Florida Bar. Someone once did some research and found that 4,500 of those lawyers had filed notices of appearance in a criminal case. I've always heard that "less than 10%" of lawyers practice criminal law, so the numbers make sense.

In terms of committees that are relevant to criminal lawyers, the Florida Bar has a Criminal Law Section and a Criminal Procedure Rules Committee. There's also a Traffic Court Rules Committee, Rules of Evidence Committee and Appellate Rules Committee.

Over the past few years, the Florida Supreme Court has given more power to the Rules of Judicial Administration Committee to make rules regarding criminal practice. There are about 30 members on that committee - 3 are criminal lawyers.

I've been on a Florida Bar committee for over 10 years. I started my Bar involvement on the local young lawyers board, joining as the only criminal lawyer among 17 lawyers. When I was on a Florida Bar Grievance Committee, I was the only criminal defense lawyer. There were 3 prosecutors, and the rest, civil lawyers from BigLaw who never had a client, and didn't understand how criminal law worked.

Bar associations are overwhelmingly made up of civil lawyers. No surprise why - BigLaw loves to have their lawyers involved. Criminal lawyers are either prosecutors, public defenders or solo or small firm. There are time factors, cost factors in traveling to these meetings, and most prevalent, a feeling that the Bar is the government. We are required to be a member of the bar, and we have to pay our "taxes" (dues). It's just another "thing" to advocate "against."

When I go to the Bar meetings, the divide between civil and criminal lawyers is immediately apparent. The criminal lawyers are the ones who realize they are not in court, and dress accordingly - open collar, no jacket, an occasional suit on the lawyer who ran to the meeting from court. The civil lawyers, dressed to the hilt.

Due to dwindling attendance, the Florida Bar recently combined the annual criminal awards luncheon with the civil lawyers luncheon. In this, the second year, the luncheon began with a quip from a prosecutor at the podium that the criminal lawyers "are all seated over here, and you can talk to them, they don't bite." Cute comment, but that's how the room was seated - criminal lawyers amongst themselves.

Even in the criminal defense lawyers associations - less than half the criminal lawyers are members, except in Oregon, where they have 100% membership, and have more power in the legislature than the prosecutors.

Civil lawyers get it. They know that being involved in the process, at every level, only helps their Bar. Criminal lawyers are divided. There is the group that believes a criminal lawyer's job is to go to court, all day every day, and do nothing else. They believe the legislature and the Bar are governmental agencies that are to be avoided. They believe that anyone involved is a "self-promoter," only looking for something. What has always made me giggle a bit, is that this is the group that sends mailers to people's homes when they get arrested, buys the big yellow pages ads, advertises themselves on bus benches and billboards, and yet says those that join a Bar committee are "self-promoters."

I often wonder what the Bar would look like if every committee had a few criminal lawyers. I often wonder what the legislature would look like if there were a few real criminal defense lawyers - not the ones who are former prosecutors and call themselves "white collar" lawyers at BigLaw.

I know, we don't get elected, we aren't welcome at the Bar.

It's not true, it's just a self-fulfilling prophecy. We're criminal lawyers, we don't need an invitation - we need to barge in and speak up.

Do we really want civil lawyers making decisions on criminal practice?

The state bar associations will dump on criminal lawyers if they are not more active. It only takes one voice to stop a bad idea, to stop a new rule from changing how we practice law.

This notion that we need to just deal with what comes down the pike and fight our cases in court is ridiculous. We need to be at the table, we need to stop trains from leaving the station.

I have examples of criminal lawyers, one, criminal lawyer making a difference in legislative and Bar proposals. I won't mention them here, but suffice to say, it's happened, more than once.

You can say "screw the legislature," and "screw the Bar," all you want.

But as you sit back and tell them to screw you, they are.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer.Share/Save/Bookmarkokdork.com rules Post to Twitter


  1. All that I know is that I have requested to be on the Criminal Rules of Procedure Committee every year for the last five; but I keep getting stuck on the Traffic Rules Committee. So that could be a big reason criminal lawyers don't want to get involved.

  2. Same thing happened to me. Keep applying. Part of being a defense attorney is being told no a bunch of times, and then one time, you get a "yes."

  3. Richard, I had a member of the Board of Governors going to bat for me to get on that committee and it didn't happen. It's very difficult to get on it. As I understand it, there was only one opening for a criminal defense attorney on the committee and the opening was given to Hank Cox, former Florida Bar President.

    Try for something other than criminal procedure. I'm on the Evidence Code Committee and I think along with one other lawyer we're the only criminal defense lawyers on the committee.

    As I'm sure you know, there are many proceedings out there that are quasi-criminal but technically civil and are thus governed by the rules of civil procedure. Forfeiture proceedings immediately come to mind. I'm dealing with a situation right now that is civil where I found a few minutes ago an opinion from the Fifth DCA that the fourth amendment applies.

    There should be criminal defense lawyers on every Florida Bar committee and not just those that are overtly criminal. We need to look a little deeper and make sure we have voices everywhere.

  4. On a related note, do you think it's accurate to say that solos and small firm lawyers get disciplined by the bar more often? Based on an informal reading of the WA Bar News, it seems that the answer is yes. It also seems to go to the split between BigLaw and the vast majority of the legal profession.

    On the one hand, it may be that the type of lawyer who gets disciplined is the type of lawyer who is unlikely to survive in a larger firm.

    The cynical answer - I call it realism but whatever - is that lawyers at big firms can diffuse the blame, big forms have more pull with the bar, or solos and small firms have clients that are more likely to complain to the bar, i.e. family, criminal, bankruptcy, personal injury, etc.

  5. David,

    I wrote about your question here:


  6. Thanks. I only started reading your blog about a year ago, so I missed that one.

    Out here in sunny Seattle, a large chunk of the public discipline notices deal with the trust account. Large firms have business managers and accountants. I suspect that many solos balance the trust account themselves and that many solos - myself included - have the accounting skills gnats.

    I've also thought that there are some of us solos, who are solos because "we don't play well with others," and that might account for the difference.