This Is How The Profession Really Works. Really.

Sixty comments. 60. I've never had 60 comments to a post. Yes, I'm talking about the last post, the one inspired by John Wait. I throttled John. He responded. He used his name, not like the growing crowd of anonymous cowardly "lawyers" posting on blogs as if they are leaving a pile of shit at someone's doorstep and running away like children. John engaged me in a discussion. Don't be surprised if we continue the conversation down the road. While he disagrees with some of what I said, and probably thinks I acted like an asshole, don't confuse that with the impossibility of beginning a relationship..

The discourse was great. The comments were a tapestry on the subject of criminal defense. Two comments near the end caught my attention (My comments appear in bold in parenthesis):

"You have a good strategy. Criminal law is a great place to learn the fundamentals (on the backs of poor defendants who don't need lawyers who are committed to criminal defense or have any experience in the field) and also to generate cash flow (because it's all about the cash flow) while you build a civil practice (and hopefully quick so you don't have to defend guilty scumbags); especially if you are building a contingency fee civil practice. This is because of the following reasons:

1. Most criminal cases are bite sized. (like m&m's). Stay away from murders and big felonies unless they can pay a big fee (if they can pay a big fee, take them and fake it. Hopefully the client won't figure out you aren't experienced. Hopefully you've created a false online presence that can convince anyone you are "experienced."). They are too much stress and usually too little money (and the practice of law should never include cases that are stressful without the requisite "big fee."). This does not apply to drug conspiracies; drug dealers have lots of money (or at least they did in 1983). Take lots of DUIs (because you can only go to jail for 6 months for DUI), small drug possessions (only 60 days in jail), domestic batteries (maybe a year, but hey, what's a year in jail?), misdemeanors and the like (hopefully you'll get a lot of "the like."). Try to take them to trial (whether you know how to try a case or not). Most clients are guilty and, in state court, the punishment is usually minor (so try to keep a straight face when you do voir dire and speak of the presumption of innocence, and try to keep a straighter face when you tell your client you are sorry he's going to jail for 30 days when he could have pled guilty and received probation). Win if you can (but only if you can. If you can't, at least you'll have the experience for when you "go civil":). Loose if you must (or lose). But have fun (fun, like at Disney World). Even if you don’t try them, you learn other important skills like negotiation, case management and client control. (These are things you will learn on your own, no need to seek mentors to help you. They are all mean and will only tell you about practicing in areas in which you are "passionate," and when we're dealing with cash flow, there is no room for this so called "passion.")

2. Criminal trial and negotiation skills are transferable: You cross examine, direct, argue and negotiate exactly the same way in civil litigation. (and the rules are the same, well not exactly the same, but similar, kind of, like almost, maybe.)

3. Clients overlap. The people who commit run of the mill crimes are the same ones who are workers comp/ PI plaintiffs. Tell your criminal clients that you do PI and you’ll get lots of good cases (lots, wink). The deadbeat who can barely get $500 for you to do a quick plea might get a $200,000 PI case next week. (or the week after)

Some caveats:

1. You pick up bad habits as a state criminal defense lawyer (but not as a PI lawyer, or commercial litigator, never). Federal civil litigation is very precise and methodical and the rules are followed. (they are not followed in federal criminal court, just go in and see for yourself.....)
2. You won’t learn civil discovery and complex research and writing from criminal law. (right, and you won't learn how to grow tomatoes from taking a class in American history)
3. There’s no homework in criminal (none, not a single criminal lawyer does anything but walk in and out of court.) but lots of homework in civil (but don't confirm this with any civil lawyer, because you might be confused). Spending too much time in court takes you away from your desk. Bunch up all of your criminal cases on only 2 days each week so the rest of the week is free for work. (just tell the judge this is how you need it to be, trust me, they will all understand.)

Your concern about public defenders is unwarranted. The average client looks down on the public defender. They think PDs are like medical residents: lawyers in training. Or they think PDs are lawyers too bad to have their own practice. This is not true, but that is the clients’ perception. Guys who spent 3 months in the state’s attorney’s office brag for the next 25 years that they are “aggressive former prosecutors”. (first true statement) Former public defenders hide that they ever worked at the public defender’s office. (ut oh, I better start hiding this) It’s ridiculous, but that is the perception.

Good luck to you. (yes, especially if you take this anonymous advice - GOOD LUCK.)

And then there's Anonymous 2, who has all the answers:

Anonymous said...

John:

This is how the profession really works: A lot of lawyers start with criminal. They get experienced. They then move on to bigger and more lucrative civil litigation. (this is true.)

But criminal law (or insert any type of law) can be a refuge for complacent lawyers. Criminal defendants are poor (all of them, even the wealthy ones, just go with it). There aren’t many cases where the client pays enough money for you to make a big deal out of it (and who's going to "make a big deal out of it" if the money is not good?). State criminal law is a bit of a confidence game. You ask the clients’ expectations. He may be terrified of going to jail. You know that he’s not realistically going to go to jail; but he doesn’t. During the interview, you gather economic status information. Multiply FEAR x ECONOMIC STATUS = LEGAL FEE. (yes, this is how the scumbag lawyers do it). After you are paid, you resolve the case to the client’s satisfaction with a five minute plea negotiation (five minutes, not a second more). You tell the client what a great lawyer you are (repeatedly); and you move on. If a client has unrealistic expectations or expects lots of work, you charge an exorbitant fee and he moves on. (never take on a client where there may be "lots of work," we don't want that. We're not trying to build a reputation here, just cash flow.)

Complacent lawyers can make money. They refer PI and other civil cases for a 1/3 cut and don’t bother learning to be good civil litigators. I know guys making over $300k who work 20 hours a week and haven’t tried a jury in 15 years. (do this, you can make lots of money and never have to worry about being a good lawyer - this is the goal of this generation.)

But with legions of young lawyers who can now repeat the marketing tricks (taught by failed lawyers selling said marketing tricks) and undercut in price, the complacent lawyers are complaining. It’s their fault for being lazy and not having moved up market years ago. (it's also their fault for taking the advice to be complacent lawyers and make money instead of building their skills as lawyers.)

Well.

This is the advice out there. This is why I laugh when people ask me why I ride these marketing trolls, the ones teaching twitter instead of trial. The ones teaching SEO, instead of BOLO.

One thing I've learned from this is that in many jurisdictions, taking criminal cases is as easy as asking to be on a list. Where I'm from, we have screening committees. No experience, no cases. You want criminal appointments in Miami - apply, and hope you get selected. It's not a training ground here like it is elsewhere. I understand though, in smaller jurisdictions there is no ability to be selective because fewer people want to take criminal appointments.

But my question is this: Does pride matter anymore? Is there any desire to be good at what you do? Or is it just a factory - an exercise in cash flow?

There are many complacent lawyers, in many disciplines. The civil bar tolerates us criminal lawyers. We know this. They think we walk in to court and just plead people guilty, and for the most part, that's what happens every day.

Let's not forget though that in those moments where a client wants more than a plea machine, more than a "complacent" lawyer, more than a kid trying to generate cash flow, there is a need for non-anonymous criminal lawyers who are in this for the purpose of a zealous defense.

And this is how the profession works, really.

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. Post to Twitter

A Young Lawyer's Concern Over Indigent Defense. Your Help Is Needed

When the story of the inexperienced Joseph Rakofsky and his representation in a murder case hit the internet, the divide between real lawyer and today's internet-created lawyer came to light. The real lawyers, i.e., those who created practices through the old fashion way of word of mouth, referrals, and competence gained through mentors and hard work representing clients, met the internet-created liar - the new style lawyer whose reputation was created through typing words and phrases on a keyboard - claiming to be "aggressive" and having "expertise," that in the real world, was a complete farce.

I previously wrote about how real lawyers responded in shock. "How could this happen," they asked?

More importantly, one real lawyer said: We need to do something. I tell my clerks and interns this is not law school. "We deal with real people whose lives and freedom are on the line by what we do or don't do. If you cannot commit to the level of effort required, then go do something else.

Well here's the chance to do something, to offer some thoughts, assistance, or tips to this young lawyer, admitted to practice in November of 2009, showing honorable concern for the state of indigent defense in his home state, and seeking advice on the American Bar Association's "Solosez" listserv:

On Apr 22, 2011, at 9:41 PM, John Wait wrote:

Quite possibly by July next year, North Carolina will have public defender offices in every county. What the hell am I supposed to do? How am I supposed to get courtroom experience and earn bread and butter pay while I am trying to build a reputation as a civil litigator? Law schools are churning out more and more lawyers, and the opportunities to get hands on experience get smaller and smaller. I need business plan ideas, immediately, from those of you who work in states where there is already a public defender in every county. Here are my ideas:

1. Bite the bullet and pay for traffic ticket lists. Do mailings.

2. Pay for SEO to increase my website's search engine effectiveness.

3. Continue networking as much as possible.

John Wait

Comments are open. Please help this young lawyer with his dilemma. We owe it to the profession.

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. Post to Twitter

The Quiet Embarrassment Of Innocence

Two days ago death row exoneree John Thompson's chilling summary of his life as a "guilty" man appeared in the New York Times. His $14 million verdict tossed by the U.S. Supreme Court, he made clear his real question:

I don’t care about the money. I just want to know why the prosecutors who hid evidence, sent me to prison for something I didn’t do and nearly had me killed are not in jail themselves. There were no ethics charges against them, no criminal charges, no one was fired and now, according to the Supreme Court, no one can be sued.

He also notes, by the way, that: Of the six men one of my prosecutors got sentenced to death, five eventually had their convictions reversed because of prosecutorial misconduct.

Instead of blogging about Mr. Thompson's well-written piece, I watched. I wanted to see who would make his words news.

Here, take a look. Notice any of the mainstream media linking to the article? No. $14 million is a story, putting a real person in front of that verdict, well, that's for some bloggers.

When the $14 million verdict was overturned, that story made news. While the online commenters were mostly outraged at the conduct of the prosecutors, the resident, and anonymous of course, "everyone's guilty crowd couldn't resist:

People aren't picked at random off the streets and charged with crimes. He had to do something or have some connection to rise to the level of becoming a suspect. Posted by: mtn1man 2:28 PM

As someone who sits on committees with prosecutors and judges, I can tell you that the topic of innocence is annoying to some. I think we need to be discussing innocence more, while others believe it's nothing more than a "distraction" from our continued efforts to imprison more people than any other country in the world. When an innocent person is convicted, and even sentenced to death, only to be later (oops) exonerated, it creates a suspicion of the system that gets in the way of prosecuting everyone else.

Right now in Florida there is a bill in the legislature to make the photo lineup process more fail safe. It calls for a blind administrator, someone who doesn't know which one may be the suspect. It helps, if done correctly, to prevent suggestive identifications. That bill is opposed by law enforcement, who always use the "don't you trust us" argument in testimony before legislative committees. As Ronald Reagan said - "trust, but verify."

There's also discussion of jury instructions that advise jurors of the significance of eyewitness identification - in the sense that it is not always a sure thing.

Prosecutors don't like it. They "believe" it will cause witnesses to be reluctant to make identifications of suspects.

The only way we guarantee no innocent person is murdered by the government, is to abolish the death penalty. The only way we firm up our eyewitness identification process, is to put in to our system a protective process for identification and jury instructions that cause jurors to make sure they closely evaluate such evidence.

John Thompson is just one person. There are many others. There will continue to be others, no matter how embarrassed we are about their innocence.

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. Post to Twitter

Perpetuating A Congressionally Recognized Injustice

The broader question is whether federal trial courts will be required, for roughly the next five years, to perpetuate a congressionally recognized injustice. It is disturbing enough when courts, whose primary task is to do justice, become themselves the instruments of injustice, as in the history of our nation it must be acknowledged they sometimes have. But this discomfort reaches its zenith when the injustice has been identified and formally remedied by Congress itself. For a trial judge, the distastefulness of being forced to continue imposing a rejected penalty becomes unendurable in light of the fact that Congress acted partly because the injustice is racially skewed and, as everyone now agrees, will fall disproportionately upon Black defendants such as Mr. Watts.

Nope, it's not a letter to the editor, it's Federal District Judge Michael Ponsor's memorandum regarding the application of the Fair Sentencing Act of 2010 to the case of Antoine Watts. It's not the first time Judge Ponsor has been to the dance on this sentencing issue.

The paragraph quoted above is not a footnote, not buried at the end of the 50 page order, it's the second paragraph.

Antoine Watts is charged with possessing with intent to distribute five grams or more of crack cocaine. The judge in his memo questions whether the court will be compelled to impose a minimum mandatory sentence of at least five years on him, or will have the discretion to impose a lower sentence as permitted by the recently enacted Fair Sentencing Act of 2010.

Now you may be wondering, how did legislation called the "Fair Sentencing Act" get through Congress? I guess the racial disparity issue of sentencing crack offenders (mostly black) to much higher sentences than those with powder cocaine (white people) resonated with enough "tough on crime" congressmen.

Judge Ponser doesn't get past page 3 before dismissing the Government's argument:

The government’s position here is that this court, and all federal trial courts in this country, must robotically continue to impose penalties that all three branches of government -- executive, legislative, and judicial -- and all elements of our political system -- Republicans and Democrats from the most conservative to the most liberal -- have now formally condemned as racially tainted and have explicitly rejected as not only unjust but mistaken from the outset. For the reasons set forth below, the affront to manifest and undisputed congressional intent advocated by the government here is not required by law.

You would think the defense lawyer's motion got mixed up in the copy machine when you get to this passage:

It is a painful, and often noted, irony that the United States of America -- the land of the free and the home of the brave -- leads the world in the rate of incarcerating its citizens. Some seven percent of the population, or 2.3 million people, are currently housed, at vast expense, in the nation’s prisons and jails.5 Approximately 210,000 inmates are in federal prisons; of these federal prisoners,100,000 were convicted of drug crimes.

Then we get to the narrow issue:

The question before the court is very simple: does the law require this court to sentence Antoine Watts according to a statute found by Congress to be both unjust and racist?

There's a question.

Here's the memo. It's worth the 50 page read.

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. Post to Twitter

The Day, The Music, Died. (Reactions from Criminal Defense Lawyers and Marketers)

It finally happened.

The lying that has become marketing was brought to light in the story of an "experienced" criminal defense lawyer. He took on a murder case a week after his admission to the bar, and got a mistrial. His internet marketing was good enough to convince those looking for experienced criminal defense lawyers that he was the one, but the judge was not convinced.

The mistrial was granted out of disgust with the lawyer's conduct, and so in true millenial marketers fashion, the lawyer posted on his Facebook page "MISTRIAL!," congratulating himself, as his fans joined in the chorus.

The sordid story began over the weekend, but exploded in the blawgosphere yesterday, right in the middle of the 2011 Legal Marketers Association Annual Conference.

The National Association of Criminal Defense Lawyer's email listserv buzzed all throughout the day on the topic. From one member:

The conduct of this person, I cannot bring myself to call him a lawyer, is without doubt reprehensible. But I am forced to a much larger question. How did he get to this point? Measuring my professional life now in decades, I cannot comprehend his apparent lack of comprehension of his situation. To be told by a judge that you are not competent to the extent you are being dismissed from a case would be mortifying (an old dinosaur term) to me.

Is there some fundamental flaw which is afflicting our profession by which young lawyers are unable to see such clear problems, whether it is a Murder I as your first trial or representing two defendants with conflicting needs?

We need to do something. I tell my clerks and interns this is not law school. "We deal with real people whose lives and freedom are on the line by what we do or don't do. If you cannot commit to the level of effort required, then go do something else.

From another fellow criminal defense lawyer:

And, all the while, he ends up screwing his client by, first, stealing his money and, then, by guaranteeing that his client spends ANOTHER year in jail before he can have his days in court. Yeah, it's just great that the judge called a mistrial. A gross miscarriage of justice was averted, but all justice will continue to be averted for another year. I have a better idea than bringing this charlatan up on ethics charges: Let the client out of jail and let the lawyer (if he is, in fact, a lawyer) go pull the time until the trial actually concludes. After that, he can get out and go back to his several offices and face the music for what he did to this client. But, of course, that will not happen.

You know, we joke about this and laugh and shake our heads and wonder just how this can happen. We speculate that the defendant was taken in by the web site for this huckster. We are hopeful that some bar association or supreme court will do something to stop this insanity before someone pays for a bad decision (of whom to hire for legal representation) with his or her life. But, all good criminal defense lawyers are tarnished by this sort of gross misconduct. It is no wonder the general public, and the producers/writers/directors/actors of movies and TV shows think so little of who we are and what we do. It is no wonder we all get painted with the same brush that is going to be used to tar (before feathering) this incompetent. We should be outraged at this and demand that New York or New Jersey or Connecticut take some action to stop this train wreck.

At the legal marketers conference, one of the speakers had this to say:

Today I came here to discuss what you all want to hear - that we need to better educate lawyers on the power of the internet, that social media marketing is the future and that marketing, and you as a marketer, is the greatest friend a lawyer can have. But I cannot do that today, because today it has all exploded in our face. We look like scam artists. We look like hucksters. So today, as I talk to you about this lawyer who lied his way to clients pocketbooks, I am going to talk about why this is not where we want to be and why we need to temper our marketing zeal with more ethics than flash.

Actually, that never happened. The talk of the internet yesterday, the unethical marketing that caused a mistrial in a murder case, never came up. It never-came-up.

Instead the marketers said:

Enjoying my beer and the conversation at #LMA11

Dinner at Emeril's. Amazing food, ridiculous wine and fantastic company. BAM!! #LMA11

Relaxing at the yacht club bar #LMA11

You can't make everybody happy. Somebody will be mad at you everyday. #lma11

Yes, the marketers took the opportunity, on a day where their advice and strategies were the talk of the internet, to say nothing.

Everything about marketing must remain positive, nothing critical, nothing negative, just pay the cash and get clients. They don't worry about your ethics, and don't want you worried about theirs.

But I hear the candy at booth 32 is yummy.

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. Post to Twitter

Cops, Prosecutors Fight The Enemy: Innocence

"The proposal is designed to help prevent wrongful convictions, but is opposed by the law enforcement lobby.”

That's a real quote.

It's about yesterday's passage of a bill creating a "blind" administrator when showing photo line-ups to witnesses and victims.

Makes sense. This way there is no question that the administrator is not skewing the results with a little nod or something more specific.

It's like the difference between having a judge who is the brother of one of the lawyers, or one who has no interest in the outcome of the case.

But innocence legislation is always controversial, because innocence is embarrassing, and anything that addresses the problem creates questions about law enforcement - police and prosecutors - that law and order types don't want asked.

That's the issue, that the mere creation of laws designed to protect the innocent - you know, like the 267 nationwide that have been exonerated - 75 due to eyewitness misidentification - is a problem. Once we officially recognize the problem, it actually exists.

Doesn't it make sense that if we are trying to prevent eyewitness misidentification, that taking bias out of the photo lineup process would be a good start?

The Florida Sheriff's Association, the Florida Police Chiefs Association and the Florida Prosecuting Attorneys Association are all opposed.

And when law enforcement opposes legislation, you get thoughtful responses like this:

Sen. Paula Dockery, R- Lakeland, said she was voting against Negron's bill because she didn't feel comfortable opposing law enforcement groups.

And who wants anyone to be uncomfortable when were talking about innocent people going to prison or death row?

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. Post to Twitter

Florida's War On The Judiciary

There's a proposal in the Florida Legislature to lower judicial pay by 8%. Combined with pension reductions, judges are looking at about a 20% reduction in compensation.

The logic behind the 8%?

State Representative Richard Glorioso offered no justification for the salary cut proposal other than a general comment that they had to cut somewhere

Cuts to other elected officials? None.

There is an all out war on the judiciary in Florida, except you can't say that to the legislature, because it offends them - that someone would figure this out.

Take, for example, the proposal to pay incentive bonuses to judges that close cases efficiently.

But let's go back to the pay cut.

Judges in Florida make about $142,000 a year.

That's a lot, if you make less than that amount. It's paltry, if you consider that a first-year associate at BigLaw can make $160,000.

I think judges should make $250,000 a year.

Hold the "kiss-ass" comments.

Your philosophy about judicial pay comes from how you perceive who should become judges.

In Florida, the list of qualifications are as follows:

1. Lawyer in good standing for past 5 years.

This list of qualifications above, grants a lawyer the right to preside over a DUI case, or a death penalty case (assuming the judge attends a course to become qualified to do death cases.)

There's a proposal to up it to 10 years, which I support.

In Florida you can become a judge two ways - appointment or election.

I believe in appointments. Most voters have no idea who to vote for (as judicial candidates cannot discuss issues that may come before them), and some voters are resentful that they are asked to select candidates about which they know nothing.

Yes, the appointment process is political, but I also believe in a merit retention process that is meaningful.

Most importantly, I believe the position of judge should be reserved for those who have had successful careers as a lawyer. I don't mean they've made a lot of money, I believe the position of judge is for those who have "been there, done that."
But let's get back to the pay issue.

Judges are looking at a possible pay cut of eleven grand. That's a lot. Forget about no raises, taking away money is a whole other concept.

There's a buzz that judges will resign. They should.

While becoming a judge is not a path to wealth, Florida's assault on the judiciary is a path to attracting either the independently wealthy, or the inexperienced who see $142,000 as a significant pay increase. Which judge do you want?

There are those that say we shouldn't compare private and public sector wages, but the reality is that a 20 year lawyer sitting on the bench should not be making less than a first year associate.

When I mention the $250,000 number for judicial pay, I hear that it would cause a feeding frenzy. The question becomes - what do you want on the bench? Most lawyers I speak to want experienced lawyers with perception and experience. When we have a society where those lawyers won't consider becoming a judge, we wind up with those we find ourselves complaining about - career government lawyers with no concept of private practice, and inexperience.

Sure, there are career prosecutors that have become great judges, and inexperienced lawyers who have done the same, but the fact remains that attracting quality is not the same as being happy with luck. We have few judges who were successful lawyers and in the middle of their careers decided to seek the bench. Why is that? The answer is money. While we want more of these lawyers to become judges, we are unwilling to attract them.

Want good judges, attract good lawyers. It's really that simple.

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. Post to Twitter

The 1,214 Email Vacation, Taming The Listserv Beast

I did it.

Turned off the blackberry for a week - 7 days.

The goal - to see how many emails I receive in a week, and to see whether I would return to "is this thing on" from anyone.

So here's the breakdown:

1,214 - average of 173.8 a day, an average of 7.2 an hour.

883 came from lawyer listservs - 72%

189 of the listserv emails, or 21%, came from 29 people.

Of the rest, about 189 were "somewhat" relevant, meaning they came from real people not trying to sell me anything, including some from clients.

But 72% of the emails I receive on a weekly basis are on lawyer listservs.

Now I'm a member of 5 lawyer listservs. Three are criminal defense, two are ethics. The most active is NACDL, and FACDL coming in at 261 and 268 emails respectively for the week, as compared to the NACDL White Collar Listserv at 60.

Listservs are an interesting animal. After many years watching and participating, I've been called "the meanest person" on my state association listserv for my comments referring people to things like "google" and books that contain rules and statutes.

On lawyer listservs (and I've confirmed it's not confined to criminal defense), there's probably a half-dozen personalities.

There's the "I have to write a motion and don't want to re-invent the wheel" types. Translated: "I haven't written shit, wouldn't know where to start and just want to copy yours."

Then there's the person who goes to the listserv with every question from law to tech to where to eat on vacation.

And there's the ones who never miss an opportunity to answer every question, usually starting with "I've never had a case like that and can't answer your question, but I did save 15% on my car insurance from switching to Geico."

And let's not leave out those who are looking for an expert who of course will work for free. These are the same people looking for a referral to a lawyer, not to hire them, but to talk to them. They also are looking for various lawyers who do very specific things in very small towns. For example: "I'm looking for a lawyer in (insert town no one has heard of) who has handled a contract dispute between a trucking company and a deaf guy who was 27 minutes late to work and was suspended for a day and lost $125 and wants to sue but has no money and owes me money for the last case I handled. Any takers?"

Did I leave out the "me too?" These are the people who read about a ruling or motion, and want a copy. They've never provided anything of value to anyone, but are happy to accept your work.

There's always the "oops" people. "Sorry, that was not meant for the entire list." Really, so you're not going to call me in an hour to discuss the discovery issues in the Smith case?

Let me not forget the "I just took money from a guy for a case I have no idea how to handle, please send motions, thoughts, candy, flowers..."

And the "I'm not happy unless I can perpetuate a debate for 4 days" folks.

And the "I have a trial coming up, in 3 hours, anyone got any case law for me?"

Of course I would never leave out the news people. These are the lawyers who believe no one else reads the paper or sees news on the internet. Two days after a big story hits - they're right on it. That always wakes up the "that's not fair" crowd.

Some emails on listservs shock me. I recently asked what lawyers would write if they knew their clients would read it?

Some make me laugh.

Some make me wonder if the lawyer actually has a practice, or just sits at their dining room table on the computer all day answering emails.

And some ask why I just don't get off. What is it I get from being on listservs.

Well, for one, there's an occasional gem, some good advice, and interesting ruling.

Cases? Most people looking for a lawyer on a listserv are looking on behalf of a client with little to no money. Not a criticism, just a fact.

I do refer a lot of cases, and that, I like to do. No, I don't go on and announce I'm looking for a lawyer, I have enough friends and colleagues to know how to get those names without doing the "anyone interested in a DUI in Backwater?" What I do is provide names to people who ask, and I do it in a way no one else seems to understand: OFF-LIST.

It shocks me that I receive over a thousand emails a week, many irrelevant, but for now, for those few lawyers who benefit from a recommendation, and the occasional interesting tid-bit I read, it's going to have to remain this way.

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. Post to Twitter

In Florida, It's Now "Let's (Some Of Us) Get To Work"

To no one's surprise, Florida's Cabinet voted 4-0 to (go back to the stone age) reverse the advances made in restoration of civil rights for convicted felons.

The policy allows non-violent offenders to regain their rights without a hearing after being crime-free for five years after being released from prison. For certain classes of violent offenders that require clemency hearings, the waiting period is seven years.

Yeay. Great work. The sheriffs and prosecutors are happy, what else matters?

Does it matter that this goes against the goal of getting people back to work?

No.

Whatever we can do to perpetrate the criminalization of life, we're good for that.

What happened here is the most dispicable, pathetic, disgusting thing I've seen in state government in all my years as a lawyer.

Yes, I'm serious.

Here's a fact:

The public wasn't asking for this.

When our new Governor was running, the main issue was unemployment. That's why his campaign theme was "let's get to work."

Automatic restoration of civil rights gets criminals who have paid their dues, back to work. Delaying restoration of civil rights, makes it harder to get a job.

Is there any coincidence that the waiting time is 5 and 7 years? We vote for the Governor and cabinet members every 4 years. Do the math.

So if our goal is to get people to work, and the first thing our leaders do is make it more difficult to get people back to work, what do we call that?

Hypocrisy.

If we're being nice.

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. Post to Twitter

Today, Florida Takes A Huge Step Backward

Today Florida's Executive Clemency Board will vote to repeal former Governor Crist's granting of automatic restoration of civil rights to convicted felons. Only Kentucky and Virginia require applications for restoration of civil rights.

It's a done deal, although the general public doesn't realize it yet. Most don't care, because they think it doesn't affect their innocent selves.

The leader of the repeal is our new attorney general Pam Bondi. You may have seen her on TV. She's a former career prosecutor who is very pretty and was often asked to appear on talking head TV shows to trumpet the guilt of suspects, like the Duke rape suspects. Remember them?

I met her once, about a decade ago when she walked into a courtroom for the specific purpose of objecting to the sealing of a record for my first time offender client whose case was dismissed. She was pleasant, but made clear to me that she didn't like the fact that my client hit her daughter's (abusive) boyfriend with a golf club. She toyed with the objection while we chatted, and eventually deferred to the court.

When she was running, I had someone ask her whether criminal defense lawyers should support her. I was told her response was something like: "some of my best friends are criminal defense lawyers, and if the criminal defense lawyers knew me well, they'd support me.

Well.

Pam won handily. She was the dark horse republican candidate. We were going to vote for a republican here in Florida for everything, because we hate Barack Obama and health care, and the republicans were/are going to fix everything, and as our new Governor says: "let's get to work."

Deferring a felon's restoration of their civil rights does nothing to get them back to work. That's not a concern of our leaders. Our concern in this republican dominated state is that felons mostly vote democrat, and well, you understand. No civil rights = no vote.

So at a recent meeting of our Executive Clemency Board, right at the end, our attorney general stated that she didn't think felons should get automatic restoration of their civil rights.

Bondi said:I fundamentally and philosophically oppose the concept of the automatic restoration of civil rights. I believe that every convicted felon must actively apply for the restoration of his or her civil rights and that there should be a mandatory waiting period before applying. The restoration of civil rights for any felon must be earned, it is not an entitlement.

The chorus of fellow members agreed. So did the Governor. Like, immediately. As if this had all been discussed prior to the meeting.... The Sheriffs joined the parade.

The Sarasota Herald-Tribune, published where democrats are as easy to find as snow in Florida, disagreed:

The current rules don't coddle criminals. They require felons to serve their sentences and pay their debts to society.

Imposing additional prerequisites, such as the mandatory waiting period that Bondi advocates, would serve only to extend felons' punishment and delay their return to productive lives. Remember: Many cannot work until they get occupational licenses, and they can't get those until their rights are restored.

This is a serious economic issue — especially in minority communities, where higher incarceration rates tragically perpetuate a cycle of poverty.

Economic issue? What?

Yeah, you see, when people can't get jobs, it affects the economy. It affects you and me. When we draw no line on when someone has paid their debt to society, we wind up paying a bigger debt.

Today the vote will be taken. It will pass. The reform that the public seemed OK with, gone.

We don't know the proposed rules though, the media not able to digest them, nor the public, because as Ms. Bondi's staff said.

...she plans to ask for a vote Wednesday and that the rules won’t be available until then.

Oh well, it was nice while it lasted.

I guess "let's get to work" is better said "let's some of us get to work," others can wait until we say they can get to work." Or something like that.

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. Post to Twitter

I Got To Meet Melvin Richardson

You don't know Melvin Richardson. Google will tell you nothing about him, he's not on twitter, and he wouldn't draw a crowd at any event.

But I got to meet him last night.

Melvin is a pretty hefty African-American guy with the demeanor of teddy bear. Seems a few months ago he was in traffic court in Pensacola and something important happened.

In Florida, like other states, a defendant is required to provide a DNA sample upon conviction. Here, we run a q-tip around someones mouth, drop it in a ziplock, the whole process taking about 6 seconds.

Melvin wasn't in court to be convicted of a felony, he was there on a matter involving a traffic citation.

This set of circumstances didn't seem to have any effect on the court security officers in the Escambia County Courthouse, who for a long while had been interpreting Florida's law as allowing them to take DNA from anyone sitting around without a nice suit. Yeah, they were taking DNA from anyone and everyone. Defendant's not wanting to rock the boat, and lawyers somehow unaware of the law, defined submissive.

Melvin was approached and instead of opening wide, turned to his lawyer and asked "do I have to?"

His lawyer didn't think so and when the judge took the bench, he inquired. The judge seemed confused that a traffic court defendant would have to give DNA, but also not wanting to usurp the power of the all mighty court security, ordered Melvin to submit to the DNA swab. He then immediately stayed the order to permit Melvin to appeal.

Melvin would now have to pay a $400 filing fee to appeal the order. Hefty price for a traffic ticket.

But there would be no appeal. Court security changed their policy. They changed their policy because Melvin said no.

And so last night at the annual dinner of the Pensacola criminal defense bar, Melvin received the first ever "Person of the Year" Award. Surrounded by giants of the criminal defense bar, donning suits, ties, and glasses of wine and enjoying perfectly cooked steaks, Melvin took the podium in his black pants and untucked black t shirt.

His only words were to recognize that he had a lawyer that helped him bring his objection to the court. He was clearly overwhelmed that someone whose only act was to say "no" would be brought to the center of an event like this to receive an award.

It was just one of the greatest things I've seen in my career.

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. Post to Twitter

Hey Charlie...

Can't remember the magazine, Men's Health maybe? GQ? I saw the editor recently wrote his column about Charlie Sheen and called it "Dear Charlie."

So I'll say "Hey, Charlie" instead.

What's up with you? You're not doing too well. Screwing porn stars, being publicly nasty to your wife, claiming you're cured of your problems with alcohol. C'mon, let's be real.

You're spiraling, downward. I know this because I have clients tell me all the time that they're "OK." I know they're not. I hear their voices, look at their skin, watch their demeanor. It's obvious. You're obvious Charlie.

And now you lash out at what's his name - the guy you work with on your show that pays you 2 million an episode? What's up with that? Where are we going with all this?

You're feeling abandoned by some folks? That's what happens when they can't deal with your excesses anymore. They walk. They relieve themselves of the great and stressful and tiring responsibility they have endured to be your friend. It's too difficult when you act like a complete asshole at every opportunity.

What happened to the guy who played Bud Fox?

C'mon Charlie, dump the porn stars and strippers. Rekindle with or divorce your wife, apologize to your TV family, and cut the crap.

You think AA is bullshit? OK, do something else. Just shut up, get clean, and move on with your life.

Or you'll die. I know. I've seen it.

Couple times. At least.

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. Post to Twitter

A Message To Prosecutors & Public Defenders: Quit

As state legislatures prepare to begin their 2011 sessions, one thing is clear - state employees are going to get screwed. Actually, anyone who relies on government, i.e., everyone, is going to get screwed. It appears the screwdriver is currently being borrowed by Wisconsin.

It's a simple rule of economics: less money means less services. So whether you are employed by the government, or just use their services - like courts, schools, or roads, you'll feel the effects of multi-billion dollar deficits in many states.

Every year as legislatures commence session, the same issues exist in the criminal justice system: will there be more funding for judges, raises for prosecutors and public defenders, will drug and other rehab programs continue? One thing that is always assured, though, is more statutes creating more crimes. Even when prosecutors go to legislatures and beg that no new criminal offenses be created ("we have the tools"), politicians find it much easier to increase a penalty from 5 years to 10 years than to revamp the state's health care system, or figure out a way to provide economic incentives for corporations to move to the state.

Particularly this year, we will deal with the issue of state employees contributing more to their pensions and health insurance - what is more typically referred to as "benefits."

"Benefits," are the lynch pin to public employment. The hook, the reason many stay in the public sector. Over the years I have tried to hire a secretary or two from the prosecutor or public defender's office, and even with an offer of more salary, been turned down. Sure I offer health insurance and a retirement plan, but it's not as good as the state plan, and there's no guarantee of 9-5 with two breaks, or an occasional weekend session preparing a case. There's also no guarantee of employment in the private sector. It's well known that unless you kill someone, getting fired from state government is nearly unheard of.

In the private sector, people are fired for poor performance. In the public sector, well, one time I had a secretary in the public defender's office that couldn't do anything right. As an example, she would set depositions of witnesses, not put it in my calendar, and when I was out of the office, angry witnesses would call wondering why I wasted their time.

I was asked what I wanted done about it. "Fire her."

"We don't fire people here."

There are different types of people who seek public sector work, particularly when it comes to prosecutors and public defenders.

There are those who know they will be there for a few years to get experience, and then leave. There are those who want a career as government lawyers, and there are those who aren't sure, but "wind up" staying either out of passion for the job, or a lack of desire or fear of private practice.

When I was a public defender I paid $93 a month for health insurance. Now I pay, well, not $93 a month. I don't remember paying anything into a retirement plan, now I pay a percentage of my income every year. There were other benefits offered for a few dollars a month, benefits for which I now pay hundreds of dollars a month.

So while the salaries are lower in public life (but not always) the benefits are what keep people there, even those who complain about the lack of raises.

Now our state governments plan to gut benefits, making public sector lawyers contribute more to pensions and health insurance.

And there's lots of complaints.

State budgets pay a majority of their monies to three entities - education, health care, and of course, corrections (jails). Courts are generally a small percentage, but prosecutors and public defenders are part of the state employment system and are included in pension and health costs.

States can't afford it anymore. And I think the message, while subtle, is clear - government service is no longer a welcomed career.

They want you there for a couple years, and out. It's better to pay a prosecutor or public defender $40,000 for 3 years than keep them there for 25, with increases in salary and benefits every year, eventually paying a yearly pension upon retirement.

I was there for three years. I began accumulating a pension from day one, but because I left before 10 years, I forfeited the money. If I ever went back (not likely for most) I would recapture those years and they would count towards an eventual pension amount, but again, the state usually wins that bet.

Long term state employees cost long term money. It used to be that the message was "stay here, make less money, and we'll take care of you in the long term."

Those days are gone.

The effects are many. We will lose those experienced prosecutors and public defenders that handle the large and complicated cases. The private sector will be better positioned to compete for new hires as the lure of "benefits" will no longer be as impressive.

This is where we are going. Our state governments are entering an age of conservativism that brings with it a philosophy that the state should not compete with the private sector where the result is to take business away from private business.

Prosecutors and public defenders believe that both salary and benefit cuts are the proverbial "straw," but I think this is the government's intention.

They want you out soon. You cost too much money.

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. Post to Twitter

Melendez-Diaz, Not Just A Case Name, An Acquitted Defendant

Although I now can't remember the name, when I was a young lawyer I remember seeing a crowd outside a misdemeanor courtroom. I walked up and asked someone what was going on. I was told that a defendant, who I only knew through the name of the famous case, was in the courtroom. His appeal unsuccessful, he was taking a plea. It was an odd moment, names like "Miranda" "Brady" "Gideon," and "Allen" always existed as cases, not real people in real courtrooms.

Yesterday, Luis Melendez-Diaz, was acquitted in his re-trial.

We in the criminal justice system know him as "Melendez-Diaz."

His previous appeal went to the United States Supreme Court on the issue of whether the Sixth Amendment required forensic experts were required to testify in court

Yes, said the Court. This overturned the law in Massachusetts law permitted the admission of reports in lieu of testimony.

For a detailed analysis of the future of Melendez-Diaz, the case, not the defendant, go here.

So now the chemist testified.

...during Melendez-Diaz's retrial, a chemist from the state Department of Public Health testified that the substance allegedly found in the back seat of a police cruiser with Melendez-Diaz and two other men tested "positive for the presence of naturally occurring cocaine."

But the jury said no, not guilty.

Bittersweet for Melendez-Diaz, he's serving a 10 year sentence - for another drug trafficking conviction.

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. Post to Twitter

Forgive Me iPad, For I Have Sinned

Anyone following the advances in technology today cannot avoid the notion that the iPad is the future. Yes, the iPad is the future much like the rotary phone. Come upon a Starbucks dwelling lawyer, and in the time it takes to drink a tall coffee of the day, with room for cream, you'll be convinced that yes, this, the iPad is the future, of everything.

Whenever a new application comes out for the iPad, it's like an angel has descended from the heavens, blessing those with nothing else to talk about except how Apple has changed their lives.

The latest:

Confession: A Roman Catholic App

The text-based app takes the user through the Ten Commandments, with a slew of questions attached to each, a process known as an examination of conscience, which penitents undergo before confession.

Questions range from "Have I wished evil upon another person?" to "Have I used any method of contraception or artificial birth control in my marriage?" and users can check a box next to each sin they've committed.

Once that's done, the app lists the user's sins and displays a written act of contrition, a prayer recited by the penitent. From there, it walks the user through the rest of the steps of confession and even advises when to say "amen."

This is great. Instead of meeting with a priest in a church, in private, you can just type away your sins while picking out a new pair of flip flops or baseball cap.

Apple "apps" are so popular, that even the Vatican has weighed in on this one.

From Father Federico Lombardi:

It's essential to understand that the sacrament of penance requires a personal dialogue between the penitent and the confessor, and absolution by the confessor who is present," he told reporters. "This is something that cannot be replaced by any application. One cannot speak of a confession via iPhone.

One cannot speak of a confession via iPhone

You forgot the iPad, Father.

I also have one small concern, the Evidence Code.

Now talking about law and the iPad in one place makes some people uncomfortable, but let's give it a shot.

The priest-penitent privilege protects communications between a person and a clergy member acting in a professional capacity as a spiritual advisor from disclosure. A clergyman uses the priest-penitent privilege to refuse to divulge confidential information received from a person during confession or similar exchanges.

Meaning what?

If your "confession" is on an iPad, that confession is between you and the iPad, and your wifi connection, internet service provider, the world, and God.

Now I know, tech evangelists don't like the fear mongering - "it's just a toy, Brian."

Sure it is. Funny though how the Vatican felt the need to comment.

I know it's a toy. Until your iPad is delivered pursuant to a subpoena, to the office of a prosecutor, who doesn't know how to play Angry Birds.

So tell me, have you ever wished evil upon another person?

Tell me.

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. Post to Twitter

The Cheapening Of Our Profession: Who's To Blame?

When I first got a Blackberry, my father asked why I would want to "be in touch" all the time, why I would want people to be able to get a hold of me all day and night?

I explained that it wasn't that I wanted to be accessible to everyone all the time, but that if one other criminal lawyer was, and the client was not going to make that second call, I was out of a possible case.

Cue the whole "run faster than the fastest Lion" analogy.

Things have changed a bit, not totally though. I am lucky to have some clients who will wait a few hours or a day to reach me, and I've learned that those that usually hire lawyers immediately, aren't looking for a good lawyer, they're just looking for a lawyer. Any lawyer. True emergencies aside, most clients really need a bondsman, not a lawyer, at the time they are arrested. Most.

Back in the 1920's, here in Miami, the Dade County Bar Association printed a little book listing the fees that clients should expect to pay for lawyers. There were fewer lawyers and no advertising. I assume back then it was well known that a Will cost X and a Divorce cost Y. I remember seeing a line for "Felonies," but don't remember what it said.

When I started practicing, as it is today, there was no expectation of what a client would pay for fees. This is mainly because we as criminal defense lawyers have turned the practice in to a commodity for sale, rather than a profession.

The main culprit: Advertising. I hate it. I do it, on a small scale - black and white listings of my name in two publications. But no "mailers," no "brochures," no purchasing of the list of last night's arrests. Yes, I have a website, and my profile on various other sites, but if it was up to me, there would be no lawyer advertising. Why do I do it? Cue again the "running faster than the fastest lion" analogy.

Advertising does one thing - it publicises to the masses the services of the lawyer. The purpose of advertising is to convince others that you are the one to hire. Say you're "aggressive," "available 24/7," or a "former prosecutor," and you look good. Talk about the free consultation and jail visit, and listen to the cell phone ring.

With advertising comes the hook - "flexible payment plans," "affordable fees," and the ticket lawyers who offer "no fee" if the client receives points on their license. Most people don't get points, so it's a low risk proposition.

I've always been a fan of ticket lawyers. I think they offer a good service for a low price. But they've killed the practice - turned it in to a race to the bottom for fees.

I've seen fees on criminal cases range from $299 for a DUI (yes, $299) to several million dollars for a white collar federal defense. Most criminal lawyers today are happy to get their hands on $5,000.00 for the garden variety case. The clients who are willing to pay mid 5 figure and six figure fees are dwindling, and as a result, many of the former "I only handle big federal cases" lawyers are walking through state court trying to find the cafeteria.

Criminal defense lawyers routinely complain amongst themselves about clients who don't want to pay legitimate fees for a real defense. (I know my anonymous cop commenter is out there waiting to jump on this - he has never arrested an innocent person and thinks any attorney's fee is too much). We talk about the guy who cries about his life being over and that he'll "do anything" to resolve the case, except pay a decent fee.

No need to worry, our brotherhood is very willing to cut fees to get the case. Rent is due, staff (if any) needs to be paid, and if your buddy Bill down the street quoted the client $2,500, well, this is the client's lucky day - because (even though you normally charge $3,500 for this type of case) today you'll take $2,000.00.

Nothing wrong with that. Nothing unethical. Perfectly fine. This is America, capitalism is how we build business, and if the guy down the street gets the case because he can do it cheaper - so be it.

But what gets me is that we complain about "cheap" clients," and clients who don't know what they're getting when they hire "cheap" lawyers, and then we spend our days on our list serves asking for referrals to lawyers who are "reasonably priced." There is no such thing as reasonably priced. The term means "cheap." But no one asks. We see someone is asking for a referral and (most of us) don't even bother to ask what "reasonably priced" means. (I think it means $500, but that's just a guess.) When I do ask, I usually learn the client still owes his current lawyer money, is still in jail, can't afford bond, but yeah, wants a lawyer for his case in another state.

And it's not just lawyers we want. We want experts - cheap experts. We have clients facing serious prison time and we are looking for the "best" expert in a narrow field who will work for basically nothing.

We, not the clients, cheapen the profession. They're not the only ones out there looking for cheap - we are too.

Price fixing is illegal. It's a violation of the Antitrust Laws. When the ticket lawyer business first started (at least here in Miami) I remember they charged $99. All of them. The day someone charged $89, it was all over. Now, you can find $29. Congratulations ticket lawyers. Good job.

We complain about the status of indigent defense, that state governments pay so little for criminal defense lawyers. Yet we take the cases. Why do state governments pay paltry fees for indigent defense? Because they know there is no fee too low that would cause a serious crisis in client representation. There's always a lawyer who will take a case for next to nothing. Isn't there?

The economy doesn't help either. Many in our profession are just hanging on, and are willing to take "anything" to stay in business. I understand you need to keep the lights on, but are you really going to properly handle a federal case for $2,500? Are you really going to properly handle a DUI case for $300?

The problem is that in most cases the client doesn't know the difference. Hold their hand, tell them to answer "yes" and all is well. Next case.

I don't know what the answer is here. We've turned our profession in to a nice day for the lowest bidder.

And like an auction, eventually everything is sold, until the next auction.

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. Post to Twitter

Of Porn And Charity

A South Florida businessman has racked up some impressive donations to the community.

According to the Miami Herald, he's donated tens of thousands of dollars to charities for at-risk and underprivileged children. He has helped keep parks open, bought uniforms for a high school football team and supported bands across South Florida. His recent golf tournament raised $82,000 -- 90 percent of which will be donated to causes such as sending disabled kids to Dolphins games, money for Toys for Tots, police charities, Haiti relief, the American Cancer Society and the American Red Cross, he said.

But his business? He runs a couple strip clubs.

Lap dance anyone?

Now an elementary school in Palm Beach County is considering returning a $20,000 gift because the district learned that the donor, Rodriguez, is not just a wealthy businessman who gives to charity.

No, he also runs a legal business.

Rodriguez has always donated anonymously. Now the word is out, and he doesn't understand:

I've been doing this for years and I always do it quietly, Rodriguez said. Now, for some reason they want to make a big deal out of it.

Yeah. So much for trying to be a nice guy.

So Rodriguez used $20,000 made off of businessmen and college kids looking at naked women and gave it to a elementary school in a low income neighborhood.

Thankfully the media found out and not "citing policy," it looks like the school principal will have to give it all back.

Rodriguez still doesn't understand:

I think it's very small-minded, he said. If you ask someone who has cancer if the money to help them is coming from a strip club, I don't think they would care.

Depends on who has cancer I guess.

Cue the Christian Family Coalition, an organization I believe is not affiliated with the public school system:

The school district should consider what the decision will teach its students, said Anthony Verdugo, executive director of the Christian Family Coalition.

Praise the Lord.

Fearing the school would make a big announcement at the elementary school, naked women and all, Verdugo lays out the tenuous argument:

It came from someone associated with the exploitation of women -- and that demeans half the population, Verdugo said. If you do that, where do you draw the line? That's not the message to send to kids -- that it's OK to exploit women.

And of course if we take these donations, the terrorists win.

Let's not mention that Rodriguez has his own idea of morality - he's a former Marine that has been married 30 years and has six children.

Not everyone objects to Rodriguez' money. He also gave $50,000 to keep a park open for at-risk teenagers. The mayor of that city said while he didn't "condone" Rodriguez' career choice - the donation kept 300 to 400 kids off the streets.

He also makes this shocking statement:

One has to look at the broader picture, Jones said. This is a business that is legal, even though, in a lot of circles, it isn't fully received by society. But we're not living in a world where anyone is on a perfect pedestal. You have to ask Does the good outweigh the bad?

Oh boy, where's the leadership? "Look at the broader (no pun intended) picture?" The business is "legal?" Does the good outweigh the bad?

There are so many messages here, many lessons.

I remember when the newly incorporated city I live in started it's own police department. They were going to have a picnic to welcome the police officers. I spoke to a city official and then followed up with a letter offering to sponsor the event. No response. Yes, I live in the community, raise children in the community, support business in the community, but then again, I do defend criminals for a living.

We see these separations of our citizenry daily. We white people lock the doors in black neighborhoods, we stay away from people who do things of which we don't approve, legalty aside. We cannot comprehend that someone who pays taxes, raises a family, but runs a risque business, can do wonderful things for the community. It says more about us then it does about guys like Rodriguez.

At least we have clean corporations like insurance companies to make donations to schools and parks - when they're not denying life saving procedures to their customers.

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. Post to Twitter

We, Not They, Lost Two Great Cops

I hesitated to write about this, not wanting to engage the "yeah, shut up, you hate cops," ignorant crowd, but here goes.

Yesterday two Miami-Dade Police Officers were murdered in broad daylight. They went to arrest Johnny Simms on a homicide warrant. To the relief of every defense lawyer in Miami, he's now dead too. Simms was where they thought he may be, and came out of a room, shooting.

As I sat in an airport waiting to come home, I saw the national breaking news on my phone. I told the prosecutor I was traveling with, and we both reacted the same. Yes, a prosecutor and I traveled to a meeting yesterday to discuss changes in the criminal rules - changes which we were on opposite sides. We sat together on the way up, argued intently against each other at the meeting, and then had lunch and did the "same" seats thing on the way back. There's a point to that, some of you got it, for others I'll explain later.

The two officers killed for knocking on a door leave 4 kids. Officer Roger Castillo is a father of 3, and Amanda Haworth a single mother of a 13 year old. Both officers have been on the force for over 20 years, Ms. Haworth's father never wanted her to become a police officer due to his fear she would be killed.

Johnny Simms was a career criminal. He was typical of the "I'm not going to jail today," type that no law or bulletproof vest can prevent. In the days to come, Simms' record will be scrutinized, his 11 arrests, the reasons he was placed on probation, and some legislator will craft a new type of statute that will pretend to prevent this from happening.

The statute will be convoluted, be named after the officers, and will say that someone like Johnny Simms must be sentenced to something, reports must be filed, things must happen.

And a few years from now it will happen again.

There is no law, no sentencing scheme that can prevent a Johnny Simms from murdering police officers again. I trust in Simms' cases there were witness problems and therefore proof problems. No surprise that there were probably certain witnesses not wanting to walk in to a courtroom and testify against this killer.

But first is the tension. Our courthouse will be filled as usual with police officers. They will all have black strips on their badges, all mourning the death of a colleague. The tension will be around for a little while. It will be around in the courthouse, and in traffic stops. Hell, these two were just serving a warrant. They knew Simms was dangerous. Traffic stops, the other site of police murders, are more of a roulette game today then they've ever been. The violence is mind numbing.

Events like this rock not only the police community, but the criminal justice system as a whole, and that includes defense lawyers. Back to my day with the prosecutor.

Those who take a superficial view of the criminal justice system believe that the only way defense attorneys operate, is under the notion that all cops are bad. We spend our days questioning everything they do, and place questions and arguments before judges and juries that evidence their mistakes. In the system many prosecutors believe we hate cops, out of the system, it's the general public.

It's always comical when a prosecutor watches from afar while a police officer slaps the back of a defense lawyer, or comes down to the coffee shop to see a group of officers having coffee with some defense lawyers.

Yes, we spend our days questioning the work of police officers. Some officers will say we make them better at their jobs. We also represent them when they have an internal affairs issue, or worse, get arrested. There are police officers who ask defense lawyers for referrals to other types of lawyers, and there are defense lawyers who are married to officers.

I remember in 1997 when a beloved highway patrolman was killed by a drunk driver. The funeral looked like congress (before they agreed last week to "sit together.") Defense lawyers on one side, prosecutors on the other. I also remember the looks from prosecutors - as if to say "what are you doing here, this was our officer."

It was sad yesterday to see a defense lawyer comment on a local blog about the murders that "I know we criticize the cops, but....." It was as if to say "I know some of you can't understand that everyone does their jobs....."

It's like saying "I'm a Republican, but I'm still upset over the attempted murder of Democrat Gabrielle Giffords."

It's at the heart of the problem with society today - we are unable to understand, accept, and behave in a manner that teaches our children that while people may argue, and disagree, and fight, and battle in an arena, whether that is a courtroom or political chamber - there is another side of life. There are relationships that transcend our profession(s).

I think in small towns this notion of prosecutors, defense lawyers, and cops having personal relationships outside "the office" is more prevalent and accepted. In the big city, there's more of an "us against them 24/7" mentality. I know cops that hate "all" defense lawyers, defense lawyers that hate "all" prosecutors, and so on. I think it's ingrained in us at a young age here. I remember being a young public defender and being told not to be seen in the coffee shop socializing with prosecutors.

I mourn the loss of Officers Castillo and Haworth, regardless of the prosecutors and cops that may say I have no right to do so because I represent criminals and therefore somehow I'm part of the problem. I do not support crime, I don't support violence, and I don't feel better knowing two officers are dead. There are people out there though that can't understand that a criminal defense lawyer would feel this way. It's too bad no one can help them.

RIP Officers Castillo and Haworth.

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. Post to Twitter

Shame On The Texas Bar, And Us

A 47 year old Texas man, husband and father of two young children, steps on an airplane and goes from 37,000 feet to the bottom of the Atlantic Ocean. Recently promoted to CFO of his multi-national corporation, he leaves us at the height of his career, with his current salary of $1,500.000.00.

His family hires a personal injury lawyer and signs a retainer agreement. The Texas lawyer will receive 33% of any recovery prior to filing a complaint, and 40% thereafter. The personal injury lawyer has a stellar reputation and several 7 and 8 figure verdicts under his belt.

The lawyer writes a "demand letter," and seeks $5,000.000.00. Three days later he receives a call offering $3,000.000.00. Turns out there may have been some safety issue involving the engine, which was discovered by the lawyer doing a quick Google search. With the lawyer having done about 4 hours work, the family agrees to take the $3,000,000.00.

For that four hours of work, the lawyer will receive approximately one million dollars, or $250,000.00 per hour.

And there is nothing unethical or illegal about that.

A 47 year old Texas man, husband and father of two young children, receives a knock on his door from the FBI. Turns out the investment scheme he was promoting is just that, a scheme-to defraud. Recently promoted to CFO of his multi-national corporation, he imagines the inside of a jail cell at the height of his career.

He hires a criminal defense lawyer and signs a retainer agreement. The Texas lawyer will receive $50,000.00 prior to the filing of an Indictment, and $250,000.00 if an Indictment is returned by a grand jury or an Information is filed. The criminal defense lawyer has a stellar reputation and several "stunning" victories under his belt. He has the respect of prosecutors, judges and law enforcement throughout the community. The client happily writes a check for $50,000.00.

The lawyer calls the prosecutor and arranges a meeting. Three days after the meeting, the prosecutor offers to subpoena the client as a witness rather than file charges. With the lawyer having done about 4 hours work, pursuant to his "non-refundable" "earned upon receipt" retainer agreement, the client files a complaint with the Texas Bar, claiming he has just paid his criminal defense lawyer $12,500.00 per hour.

Pursuant to the proposed changes to the Texas Disciplinary Rules of Professional Conduct, he may get the refund to which he agreed he was not entitled.

Scott Greenfield muses about the "right to contract freely" in his post describing the practice of criminal defense."

But he knows we don't have that right. He is probably thinking of Thomas v. Anderson, 861 S.W.2d 58, 62 (Tex. App.-El Paso 1993, no writ). (As a general rule, the court has no authority to determine what fee a litigant should pay counsel, that being a matter of contract). Texas lawyers clearly don't have that right (When interpreting and enforcing attorney-client fee agreements, it is “not enough to simply say that a contract is a contract. There are ethical considerations overlaying the contractual relationship.” Lopez v. Munoz, Hockema & Reed, L.L. P., 22 S.W. 3d 857, 868 (Tex. 2000).

We have the right to do what our State Bar says we can do, because as I've said before, State Bars exist today for the sole purpose of protecting the public from lawyers. "Pay your dues, and keep the clients perfectly happy" is their mantra. While one Bar prosecutor once told me "there are two types of complaints, complaints against lawyers, and complaints against criminal defense lawyers," more and more the civil lawyers who Scott refers to as "Bar types," show their lack of love for us. The love only comes at 1:30 am when the partner who "can't stay in jail or he will die," must be released, and his case dismissed immediately, needs "the best" - for a reduced fee of course because while civil lawyers play like they're rich, they are cash poor and Lexus rich, or don't see the monetary value in criminal defense lawyers. (But get him out now and be thankful that a civil lawyer called you to represent a civil lawyer).

The issue in Texas, that Mark Bennett wants criminal lawyers, no, all lawyers to oppose is the proposed rule that addresses "unearned" fees.

The comment to the proposal states:

Fee agreements sometimes state that the fee is a flat fee, advance fee, nonrefundable retainer, or some other kind of fee. But without regard to the label, if the fee is a prepayment for services, paragraph (d) requires a lawyer to deposit the fee into a trust account until it is earned. Applicable law, not these Rules, determines when a fee is earned.

Dallas lawyer Michael Sawicki writes about the 41 year old seminal case on contingent fee agreements, Mandell & Wright v. Thomas, 441 S.W.2d 841, 847 (Tex. 1969) which contains an interesting dissent. In Mandell, the court held that a lawyer hired on a contingency fee basis, that is discharged without good cause before the representation is completed, may seek compensation in quantum meruit or in a suit to enforce the contract by collecting the fee from any damages the client subsequently recovers.

But as Sawicki notes, "any attempt to apply the 'strict contract' approach will be subject to substantial scrutiny." He also notes the power contained in the disciplinary rules," reflecting "the trend away from Mandell & Wright seen in other states."

The dissent (where most opinions in favor of anything criminal defense lie), "felt the focus on evaluating the contract should center on the facts at its inception, not when the contract terminated."

Here's where it gets interesting for criminal defense lawyers:

Fee arrangements normally are made at the outset of representation, at time when many uncertainties and contingencies exist, while claims of unconscionability are made in hindsight when the contingencies have been resolved . . . Except in very unusual situations, therefore, the circumstances at the time a fee arrangement is made should control in determining a question of unconscionability. Agreements are unconscionable when they are not or cannot be proper, not when it is merely possible for them to be improper.

Criminal defense lawyers understand this dissent without exception, the word "hindsight" sending chills through every advocate of the criminally accused.

As stated in the comments to the Texas rules: ...“unconscionable” adopts a
perspective to give the lawyer the benefit of the doubt of the uncertainties at the outset.

Texas lawyer Roger Hughes, author of Drafting Appellate Fee Agreements and Handling Fee Disputes: A Defense Perspective, writes about "unconscionable" legal fees.

Apparently, back in the 1940's, freedom of contract was paramount, kind-of:

Back then, except for fraud, breach of fiduciary duty, or if the parties to the contract were mentally incompetent or minors (did we prosecute minors back then?)if the contract was valid when made and the parties are mentally competent, it is enforced without court review of the reasonableness of the fees agreed upon. Polybutylene Plumbing, 23 S.W.3d at 436; Parker v. Boyles, 197 S.W.2d 842, 849 (Tex. Civ. App.–Galveston 1946, writ ref. n.r.e.).

When I said "kind-of," I was referring to this language regarding the exceptions:

There are two recognized exceptions to enforcement once the attorney has performed:

Performed? Cue the circus music.

Have I "performed" if I resolve your case, and return you to your life in 3 hours instead of 3 months? I, like anyone else, sometimes get the question at the end of the case: "So, I get any money back?" "No, you agreed the fee was earned upon receipt." Yes, but you didn't do much."

And then I'll ask this question: "If I told you at the time you hired me, that for that fee I would resolve the case in a matter of a day or two, would you have paid it?"

(Shrugged shoulders).

The terms "unconscionable," and "reasonable," when talking about attorney's fees are determined by a collection of theories, definitions and statutes.

"The ultimate litmus test for unconscionable under Rule 1.04 will be a comparison of the lawyer’s time and effort with the fee and the results." See Walton, 149 S.W.3d at 844. Results? Well since contingent fees in criminal cases are prohibited, of course Texas wouldn't use the standard of results for us criminal defense lawyers. So we're left with time, efforts, and fee.

But who determines our time and efforts in comparison to the fee? State Bars claim they don't participate in "fee disputes," which we all know is horseshit, because the dispute invariably revolves around "I paid too much and want some back." As the question is always whether the fee is "unconscionable" or "unreasonable," State Bars do involve themselves in fee disputes. It is only a fee dispute for which the Bar refuses participation when the fee is determined to be reasonable, therefore leaving the issue to a civil court if the client chooses that route.

The Texas Bar has painstakingly tried to convince criminal defense lawyers that "oh, we're fine, don't worry." And this comment to the rule seems to lead a reasonable lawyer to believe them:

Applicable law, not these Rules, determines when a fee is earned

Applicable law? Meaning Texas Law?

TEX CP. CODE ANN. § 38.003: PRESUMPTION

It is presumed that the usual and customary attorney's fees for a claim of the type described in Section 38.001 are reasonable. The presumption may be rebutted.

Ok, so we assume all fees are reasonable, but clients can rebut that presumption.

TEX CP. CODE ANN. § 38.001:RECOVERY OF ATTORNEY'S FEES

A person may recover reasonable attorney's fees from an individual or corporation, in addition to the amount of a valid claim and costs, if the claim is for:

(1) rendered services;

(2) performed labor;

(3) furnished material;

(4) freight or express overcharges;

(5) lost or damaged freight or express;

(6) killed or injured stock;

(7) a sworn account; or

(8) an oral or written contract.

Or an oral or written contract? Is that the "applicable law" of which the Texas Bar speaks?

Wait a minute, if this is the "applicable law," that a lawyer can recover fees simply based on a contract, then are we saying lawyers are governed by this statute and not the Bar rule? Of course not, because this "applicable law" speaks of freedom of contract, which we lawyers do not have. The Bar will determine whether a fee is reasonable, whether the client agrees to it, and even if there is a clear contract.

The Bar committee proposing these rule changes notes that as to flat fee agreements, it should be clear (to the lawyer, as well as to the client) and agreed to by the client," and that criminal defense lawyers should find some other term to use or not use a term and simply be descriptive in a written fee agreement with the client).

The Texas Bar's focus on the criminal defense lawyer's "flat fee," is disgraceful. But it is symptomatic of what Scott Greenfield refers to as the "Bar types" that mill around state bar committees when they are not in their offices waiting for someone to bring them coffee in embossed ceramic cups (with a saucer Goddammit, and now).

And so Mark, I have some bad news for you. Your criminal defense colleagues may vote against this and all the new proposals. More likely, they will remember after the deadline that the ballot went in to the garbage, and they didn't have time to vote because they were "in trial." You are screaming from the rooftops, maybe others are joining you, but the masses won't pay attention until they receive a letter a year from now from the Texas Bar about their non-refundable $2,000.00 fee.

I am a Bar-type. I mill around those Bar committees in my khakis and blue shirts (no-tie) while the masses of civil lawyers in suits with briefcases tagged with their initials in gold who "tolerate" us, cast us off as part of the problem in the profession - disregarding that their precious billable hour is the definition of fraud. I am a Bar-type, I pay my own way to meeting after meeting, speaking up when I hear our criminal defense bar malinged, and constantly trying to convince my colleagues there is a good answer to "why do you go to all these meetings?" They all think I'm doing it for my resume, or some judicial aspiration, and are still wondering why after 16 years, neither has been true.

Until the criminal defense bar infiltrates state bars, gets on every committee, and participates at the same table as the manicured civil bar, we will continue to beg for our constitutionally mandated existence.

Good luck Mark, and good luck my brothers and sisters in the Texas Criminal Defense Bar. May the rights of clients to be guaranteed a flat fee and not be nickel and dimed for every .2 conversation, or charged for when we are "thinking about the case" throughout the representation, be protected.

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. Post to Twitter