Public Pretender

As I sadly have no baseball games to watch as a result of the most fantastic example of crash-and-burn I have ever witnessed in the Word Series, I have been amusing myself by keeping up with the public defender vs. private attorney debate on the blogosphere, and here, and here ,and don't forget this one, all brought on by this article. Rather than commenting on everyone else's blogs (although check out some of the comments already there, they're pretty good), or on this singularly uninformed woman's article (she seemed to get quite snippy at the comments of others), I figured I would say what I think in my own way.

I think people should know something of what they are speaking about before purporting to give advice on a topic. Especially legal advice. After all, this is what lawyers are for. This woman seems to be something of a cross between Martha Stewart and Dear Abby, given her other articles, e.g. edible craft projects for kids and tips for washing walls. Her knowledge of public defenders and criminal defense in general can be seen from the title of her article, "Should I Hire a Public Defender?" One does not hire public defenders, as they are free by definition. While different jurisdictions have different rules about qualification for a public defender, they are required not to charge people with no money to pay them. One of my favorite lines was, "Unless you want to risk spending time in jail, hire a lawyer directly, even if it means making payments to the lawyer, charging the expense, or borrowing the money to secure good legal help." Now, if a person charged with a criminal offense actually has any of those options open to them, they are obviously not indigent, and therefore should not have the services of a public defender in the first place. Additionally, if they are not facing the risk of jail time, they also are not entitled to free legal representation. I would also like to know her basis for the assertion that, "Since a public defender is paid by the state, a public defender isn't earning as much as a lawyer hired directly. A public defender earns about $65 an hour on average." If anyone knows any public defender making that much, could they please let me know where they are working so I can apply with that office? Now, I'm pretty bad at math, but according to my off-the-cuff guess, that's at least three times what I make.

The article then goes on to say what we in the profession are used to hearing: "Public defenders push their clients to plead guilty, even when guilt is in question. A client pleading guilty is an easy case for a public defender." Now, obviously, a case that results in an early plea is an easier case and takes up much less time than a case that goes to trial, especially if it goes to trial with many witnesses and exhibits. It's not just an easier case for a public defender, it's an easier case for any attorney. The difference is this: We get paid the same, whether we spend all weekend preparing a case for trial, or if it pleads. I have told my clients in the past, especially on cases where there really isn't a viable defense, but he's not that thrilled with the plea offer, that I honestly don't care whether we have trial or not. I like trials. This is part of why I do this. On the other hand, private attorneys charge by the hour. If your case goes to trial, he gets more money. But usually not enough more to make it worth while spending the billable hours on a drug possession case, when he could be doing a will, or a divorce, or a bankruptcy for which he gets a flat fee and they take about 10 minutes. Further more, if you can't afford to pay him enough to make it worth his while to do the trial, see how fast you end up pleading! Or he'll withdraw from representing you.

Now I know some public defenders who do push clients to plead guilty. They put in their 8 hours, and take home their paycheck like this was some kind of factory. I know public defenders who haven't had a trial in 3 years. I also know private attorneys who behave this way. They take all they can get from the client on retainer, spend 10 minutes with them going over they plea, and then 10 more doing the plea, and then they're done. I've known private attorneys who promise people that if they are hired, they can get the defendant out of jail.

All this being said, I've never felt offended by a client who asks if I will fight for them. He has a right to know. I've never felt offended when a client hired private counsel. I have felt sad on occasion, because I knew what kind of lawyer he hired, but never offended. One of my sweetest juvie clients came into my office for his initial appointment with his mother. The case was going to trial because both the kid and the mother were adamant that the kid was innocent, and he probably really was. His mother kind of grilled me, but in a nice way. She asked me how long I'd been practicing law, how many trials I'd done, and things like that. She asked me forthrightly whether it would be better for her son if she hired a private attorney. I told her it depends on the attorney. I also told her that yes, I do have many clients, and it sometimes does take a while to return phone-calls, etc. If what she wanted was daily updates on the status of the case, I cannot provide that. But I will take the case to trial, if that is what the son wants, and I will prepare for trial, and do everything I can do to see that we win. I then went into specifics on the steps I would take on her son's case. She was happy with that explanation, and we did win the trial. Now it is true that I'm not the best at the hand-holding aspect of this job. I'm simply too busy. But I don't hold it against someone if they think that is what they need. Or if they think an attorney they pay will work harder for them.

What does really tick me off about this public pretender reputation is when people who should know better spread this around. There was a incident not too long ago in which a well-know private attorney informed a full courtroom that the reason one of my clients was in jail was because she hadn't hired him, but had me. And I was only a public pretender. I honestly thought I was going to slap the man! It also looked like the judge (who likes me) was considering hitting him as well.