Crime and Criminal Lawyers

The always blunt Scott Greenfield writes:

“I’ve spoken with many lawyers, many readers. You know who you are. You know that I know the truth. The business of criminal defense is dying. It’s awful. It sucks. And you’re hanging on by a thread, if at all.  Yet, most put on their game face, talking themselves up as if they are somehow beating the odds, knocking down the world, making a killing. Nobody wants to tell their brethren that they’re in the same boat, struggling daily to cover the nut and praying that the next phone call isn’t another nutjob or desperate defendant without a dime to his name.

It’s not that there is a shortage of criminal defendants, though crime is significantly down and serious crime even more so.  There is a shortage of criminal defendants who can afford to pay for a lawyer.  Sure, there are  some lawyers who are doing well, but you can count them on your fingers and toes, without resort to dropping trou. And there are a great many criminal defense lawyers, exceptionally good ones, who fight over crumbs these days, because that’s all they can do to survive . . .

[snipping some typical anti-law school commentary…]

The fact is that the vast majority of criminal defense lawyers are starving.  Because of this, lawyers are cannibalizing themselves, stealing cases in the hallway and undercutting each other at every turn.  Websites create the expectation that people can get $1000 of legal representation for $12,97. They teach that lawyers desperately want to give away their advice for free.  The message is lawyers are fungible, or that no one wins anyway, so why bother paying money when you can lose just as well for free.”

I don’t know if the trend that Scott describes is local (NY) or national.  (The students I know in criminal practice are either PDs or too fresh to know the regional market well.)  If it is a national trend, it’s disturbing.  Scott asserts that the decline in the criminal defense bar is unrelated to the decline in crime.  Presumably, it could be related to the overall slowdown in the economy. But the primary mechanism I’d posit for such a relationship would be an increase in the supply of criminals, which isn’t evident in the crime data.  The decline in BigLaw results from outsourcing, client-billing pressure, and digitization.  None of that is present here.  What’s going on?  Is this mostly about the collapse of the more lucrative side of the drug trade? The commodification of practice (driven by internet advertising)?

Knowledgeable and signed comments will be welcome.

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7 Responses

  1. shg says:

    Two points of clarification. I am *not* always blunt. Sometimes, I’m brusque, and on occasion, gruff.

    Second, the individual discussed in the post was from the left side of the country. The people I’ve spoken with, mentioned in your quote, are from all over the United States and Canada. This is not a New York problem.

  2. nidefatt says:

    We don’t seem to have these problems where I am in Idaho, but I seem to recall they were having them in Boston before I left.
    A lot of your problems, dear brethren, may be that you’re not very good attorneys, even if you’re good criminal attorneys. Here, we tend to do a lot of business in property, not cash.

  3. shg says:

    So in Idaho, the good lawyers get paid in chickens? How long before there’s a mad rush of hungry Boston lawyers to Boise?

  4. Ken Arromdee says:

    The idea that if there are more suppliers and fewer customers, the price gets driven down, is a well known fact of economics and I am surprised that anyone is surprised at it or thinks that remedying it is possible.

    And people often prefer price over quality prices because they can easily determine the price, but they have no way to determine the quality of service. The solution to that would be to make it easy for laymen to compare the quality of lawyers, which I suspect is neither desired, nor in many cases, possible.

  5. Will Coy-Geeslin says:

    My thought is that the statutory environment in criminal law empowers the prosecution to control the cost-benefit analysis in plea vs. trial such that the incentives are overwhelming to avoid trial, regardless of the strength (or factual basis) of the state’s case. 97% of fed and 95% state cases are resolved by guilty plea. The mechanized, rote assembly line process of overcharging results in a plea offer that is within a predictable range reduces the ability of the defense bar to have a meaningful impact on outcomes. Regardless of skill, there is simply less defense needed if one does not go to trial. Imagine the opposite situation: a fully-funded system in which 95% of criminal charges go to trial. Lazy cops/prosecutors could not be as sloppy as the system allows them to be now when factual guilt/innocence is really beside the point. It’s “justice” by flowchart and not an adversarial criminal trial process as was assumed by the drafters of the constitution(s).

    http://sentencing.typepad.com/sentencing_law_and_policy/2012/08/do-prosecutors-have-too-much-power.html

  6. Will Coy-Geeslin says:

    intended to include this as well

    “The Unexonerated: Factually Innocent Defendants Who Plead Guilty”

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2103787

  7. Will Coy-Geeslin says:

    Did not realize how closely my thoughts tracked this language from Lafler v. Cooper: “(“until today, [plea bargaining] has been regarded as a necessary evil. It presents grave risks of prosecutorial overcharging that effectively compels an innocent defendant to avoid massive risk by pleading guilty to a lesser offense ; and for guilty defendants it often—perhaps usually—results in a sentence well below what the law prescribes for the actual crime.”