An Indictment of the Defense Bar

...Problems of proof cause a major hiatus between knowledge that shenanigans must exist and actual proof of them...

...I know some attorneys of the same...

...For all its humorous overtones, this episode raises a serious question: Who are our criminal lawyers, that Ross was able to pass as one of them without triggering instant suspicion...

...Although this is obviously not the way most of the defense bar makes a living, it is not as rare as the formal criminal charges of such misconduct that emanate from grand jury inquiries...

...Most of the defense attorneys I have been describing see nothing unethical in the so-called standard referral fee of one third of the total payment received?normally given for no work, no sharing of the responsibility, but simply for having sent a client to a colleague...

...Furthermore, Naderism and the spirit it evokes are funneling practical idealists, not the selfishly practical, into helping those on the short end of the social stick...

...Periodically, criminal investigations confirm that a portion of the defense bar, not content with getting pott-arrest cases from the bondsmen, police and court links, have taken the next step...

...And another...

...Once a lawyer decides to give kickbacks, he is off and running...

...This minority of the bar does strive to develop rapport with each client, probe the factual and legal merits of potential defenses, and aggressively assert them...

...Until now, there has been little pressure for reform from the criminal bar associations...

...Pre-arrest ties are exposed: arrangements between lawyers and lawbreakers-gamblers, pimps, narcotics traffickers, etc., in the hierarchies that flourish in the face of our sumptuary laws-for the representation of their policy runners and collectors, prostitutes, minor drug peddlers, and others professionally devoted to such endeavors...

...He has learned how to solicit business quietly, at times with the aid of friendly court attendants, in corridors and waiting rooms...

...they will have to satisfy themselves that the deals arrived at are equitable, are fair to the defendants as well as to the state...

...More often than not this lawyer has been retained through the intervention of a friendly bondsman, pimp or gambler...

...Rather, the Times went on to explain, he was caught when a court aide routinely tried to reach him at the phone number of the law firm he had falsely claimed to be associated with...

...To begin with, tighter policing is needed to eliminate referral fees...

...when it sees a guilty man stroll through courtroom doors free into the sunshine...

...This lawyer views the payment of assigned counsel as an understanding legislative gesture designed to augment the sustenance of deserving attorneys, rather than to provide forceful and imaginative representation for the impoverished...

...And so some of these foot soldiers in the administration of criminal justice, who lack even the lawyer's professional interest in seeing that defendants are well represented, also serve to funnel business to much of the criminal bar...

...Similarly, I have nothing but praise for that sprinkling of dedicated private advocates who-coupled with institutional attorneys and lawyers for causes-change the law's frontiers, limit themselves to the cases they can handle effectively, and make every effort to promote their clients' interests...

...But much remains to be done...

...A while after, I saw another...

...distinguished and bound together for the most part by their mutual devotion to their fees...

...He has probably never met his client and will spend little time consulting with him or examining his case-now or in the future...

...Understandably, the bill was opposed by professional bail bondsmen, who saw their bread and butter endangered should "parole" become a common substitute for bail...

...In New York County, for example, the one existing organization of defense attorneys-known popularly (to the distress of its membership) as "the Baxter Street Bar," after the few blocks running behind the courthouse-Seems to serve only three functions: It creates hopefully good-for-business titles for its rotating leadership ("President" of a bar association is an appellation to be conjured with...

...Was it mere lassitude, or concern for the bondsmen's hand that fed them, that resulted in the bar associations' remaining silent, instead of urging passage of that defense-oriented legislation...

...That the medical profession, which also involves frequent resort to specialists, roundly condemns fee-splitting and claims to have virtually eliminated it, has not shamed lawyers into following suit...

...Were this pursued on any significant scale, it would drive out the most incompetent and unethical attorneys and force the rest of the profession to raise its standards of conduct...

...Some of those men at least were loved by the women they sold...

...Is marijuana to be legalized...

...He has a number of other courtrooms to visit the same day, and cannot give each case the time required for proper handling...

...The individuals he represents, unequipped to distinguish a lawyer-like performance from bombast, are given a show-before the jurors (or trial judges) too often return adverse verdicts...

...Countess, little by little, the pimps have taken over the world...

...Whenever they meet, they whisper, and then they pass each other thousand-franc notes...

...In fact, "grievances" (charges of ethical misconduct against attorneys) are almost never filed against counselors who regularly engage in fee-splitting under such euphemisms as "forwarding" or "referral" honorariums...

...It is shoddy: shoddy intellectually, shoddy ethically...

...An Indictment of the Defense BarBY RICHARD H "A 36-year-oi.d avowed heroin addict ^ ?posed as a member of the bar and won J ^ acquittals for four fellow addicts in Brooklyn Criminal Court," reported the New York Times some months ago...

...The counting house contaminates the courthouse...

...I recall one such lawyer, in the late '60s, repeatedly referring to "the Mapes case," pronounced to rhyme with "apes...

...accordingly, his main skills are those of a racetrack handicapper...

...Personally, I prefer the old-fashioned type...

...If soundly satisfied that battle will be unavailing, that no line of defense can carry the day, these lawyers act as demi-sociologists armed with some knowledge of correctional facilities and practices to imaginatively explore dispositions that may help their clients without unduly endangering the community...

...This kind of corruption is extremely rare, but it is believed to be commonplace by many of those who run afoul of the law...

...Consequently, fee-splitting serves to support the lazy, the unimaginative, the incompetent, and the unethical...

...By and large, however, the criminal bar is neither spirited nor dedicated to the defense of the accused...

...Necessity," Poor Richard wrote, "knows no law...

...Not a human face...

...In courthouse elevators and nearby lunchrooms he is forever boasting of his trial commitments, but seldom of his accomplishments...

...Mapp v. Ohio, the landmark 1961 Supreme Court decision barring state prosecutions premised upon unlawfully obtained evidence, is pronounced as it is spelled-to rhyme with "sap"-by all who have the remotest familiarity with it...

...With a sparse handful of exceptions, I regret to say, the nation's defense attorneys form a ragtag assortment of tattered tradesmen of extremely modest competence: technically professionals solely by dictate of the Latin on their diplomas...

...For the defense bar the Johnsonian insult...

...Is the death penalty to be reactivated for terrorist bombings...

...They are not notably concerned about defendants' rights, rehabilitation of the socially damned, justice, or advocacy...

...There is the lawyer with radar-like skill in spotting anxious wives or common-law spouses in the courtroom, particularly among the benumbed at big-city night courts...

...The recent revolution in criminal law has cloaked defense practice with a respectability and a change-of-law excitement that is drawing better lawyers to it...

...But should you wander into our nation's crowded courtrooms, here are some of the characters you will see...

...Nonetheless, there is hope for improvement in the future...

...He did not care to speak ill of any man behind his back, but he believed the gentleman was an attorney" -flatters in invoking the term "gentleman...

...Should gambling be decriminalized...

...For the lawyer habituated to paying other lawyers for clients, it is no giant step to showering generosity upon needier personnel outside the bar...

...There is the lawyer who, thinking and talking of his own clients, thinks and talks of "bums" and "junkies...

...By this I do not mean to condemn those overworked Legal Aid lawyers whose daily volume may sometimes preclude, despite the most courageous efforts, giving each and every client full attention...

...Is preventive detention acceptable to our system...

...And just as the majority of criminal practitioners consider such fees a sine qua non for securing a continuing stream of referrals, referring lawyers usually prefer to deal with specialists who they know from previous experience will reward them...

...His arguments are generally canned and perfunctory...

...His handling of such clients is prudently designed to insure his remaining in judicial good graces: No vehemence is ever likely during his argument...

...There is the lawyer, a regular at the local political club, whose forte is courting judges in quest of assignments in murder and occasionally other cases that will Day him with public funds...

...This is certain to produce improvements in the defense of criminal cases, and since the law is a seamless web, as we slowly make advances in one area they are bound to be reflected in others...

...There is another lawyer who routinely waives pretrial hearings, his single chance to discover the scope of the evidence against his clients (and occasionally his opportunity to have charges dismissed...

...Having found a means of bringing in business, he tends to become careless about restraints...

...Should judges be elected or appointed...

...Second, the public must take a more active interest in the administration of criminal justice generally...

...Certainly it has given no leadership...

...And bewildered defendants, themselves asking adjournments, frequently explain that they were informed an attorney would appear for them but none has come forward...

...Lawyers who exist primarily to take their cut will continue to predominate, as will judges of questionable competence and prosecutors too harried to consider the people their decisions affect...

...It was not the criminal bar that Girau-doux had in mind when, in The Madwoman of Chaillot, the Ragpicker said: "Well, Countess, twenty years ago, one day, on the street, I saw a face in the crowd...

...First, there is the lawyer who calls names from a small black appointment book (adding to the chamber's din) to discover who, today, provides his employment...

...The expression -not human...

...Upon the arrest of the subordinates, certain lawyers are promptly notified...

...It saw me staring, and when it looked back at me with its gelatine eyes, I shuddered...

...Then there is the lawyer who unabashedly pleads for a postponement because, he tells the court, he has not yet seen "Mr...

...He justifies Jeremy Bentham's observation that "it is as impossible for a lawyer to wish men out of litigation, as for a physician to wish them in health...

...Without serious regard for the defendants' best interests, he tends to take far too many of his cases to trial...

...Although the law sets a ceiling on the amount of compensation for any one case (ordinarily $500), by collecting a score or so of these assignments annually, then spending little time on them but inflating his sworn reports, he can add nicely to his income...

...Unfortunately, the principle of survival of the fittest does not work to insure competence among practicing criminal attorneys...

...Every courtroom veteran is aware that the same handful of lawyers appear day after day in the chambers where gambling cases are tried—unaccompanied by relatives or friends of the defendants-calling out names of clients they have obviously never seen...

...Several years ago the New York State Legislature considered, and ultimately passed, a law that made "parole jumping" a crime, thus encouraging the release of many more defendants without bail, solely on their own pledges to appear when called...

...And so on...

...Increased funding for Legal Aid societies, public defenders and private agencies that employ staffs of criminal attorneys is having an impact too...

...That is to say, he has not yet been paid...

...They don't do anything, they don't make anything?they just stand there and take their cut...

...This congenial hobnob-attended by judges and legions of assistant prosecutors-offers a relaxed setting for defense lawyers to rub shoulders and bend elbows with the figures who determine the fates of their clients...

...Quickly he learns that while other lawyers only occasionally have criminal cases to refer, many bail bondsmen, policemen, court officers, and correctional guards (as a defense attorney, he is likely to know a number of each) are constantly mingling with the newly arrested...

...Antiobscenity laws...

...Such is the sordid picture, the jaded, wasted Dorian Gray too generally lurking behind the layman's (and law student's) dreams of defense advocacy...

...Are no-knock statutes to proliferate...

...Osmotically, in time the lawyers practicing before them will mirror the same qualities...

...it occasionally rallies to the loyal defense of a judge under attack...

...Since television is banned from our courtrooms, no klieg lights show the uninvolved citizenry how poorly these men perform, and regrettably no contemporary Daumier has appeared, sketch-pad in hand, to limn the cast...

...The profession's code of "Ethical Considerations" (consisting of precepts advanced by the American Bar Association to underscore certain of the Canons of Ethics intended to govern lawyers' conduct) bans fee-splitting...

...Nor are they imbued with ethics, legal or otherwise...

...Yet, as far as is known, the Baxter Street Bar has taken no stand on any controversial issue, introduced no proposals, lobbied for or against no bills...

...indeed, argument itself is rare...

...Until such steps are taken, big-city justice will remain the mechanized, frequently inhumane, plea-mad treadmill we have come to know so well...

...There is the lawyer for whom the trial forum is principally an ego trip...

...They dislike the sometimes sticky business of negotiating fee splits with strangers-possibly aggressive, active lawyers who put more time into each case and may not relish either the ethical breach or relinquishing a portion of a hard-earned fee...

...The eyes-empty...

...This lawyer knows that it is the defendant, not the defense attorney, who goes to jail...

...and it stages an annual dinner preceded by a generously spirituous social hour...

...Because I knew that to make room for this one, one of us must have left the earth...

...It was not the criminal bar, but it might have been...

...Law schools need to provide the curriculum to prepare students for this aspect of their chosen occupation, and bar associations should attempt to educate practicing lawyers in the same regard...

...Its goal was to serve the interest of the criminally accused by getting them back onto the street without expense...

...The impostor, Charles Ross, whose formal legal training consisted of one six-month correspondence school course taken several years earlier, was not unmasked by a disappointed client or a judge suspecting unlawyerlike conduct...

...Since graduating from law school, he has rarely studied a legal opinion, attended a legal lecture, written a legal memorandum, or made any but the most hackneyed of court presentations...

...In 1969 the Mayor of San Francisco, an eminent lawyer, publicly admitted taking part in a massive fee-splitting arrangement...

...Though justice may sometimes be the last thing their clients seek, these defendants are devoutly served...

...A face, you might say, without a face...

...Third, we must recruit trial judges with qualifications other than political connections: men of knowledge, courage and humanity...

...Finally, there is the wheeler and dealer, the natty pinky-ringed counselor-at-law who suggests to his clients sotto voce his special contacts with prosecutors and judges who will, for a price, agree to dismissals, minimal pleas, or at least light sentences...

...For much of the defense bar, the road to active employment is not skill, industry or past successes, but rather having appropriate contacts with client sources and being willing to pay, and to pay handsomely, those who refer such business...

...Even the dullest among the association's members must sense that every aspect of the administration of criminal justice is under question today...

...They defend clients in court they have never previously met, persons who know nothing of their counselors-at-law except that someone up the line, who will see that the expense is met, has assured them a lawyer will appear...

...and that too is a face of justice, even Richard H. Kuh, a partner in the law firm of Kuh, Goldman, Cooperman and Levitt, served as an assistant district attorney and administrative assistant to New York County Prosecutor Frank Hogan from 1953-64...

...usually in cash that will not be reported to the tax authorities, without seeming to charge high fees for his own ministrations...

...Thus, this lawyer can exact high sums from cynical clients (after all, how can one "buy" a judge or prosecutor for less than three or four figures...

...he does not scratch to uncover what legal, factual or social claims can be made on behalf of the unfortunates he represents...

...He has neither the temperament nor the ability to try cases effectively, neither the bluff nor the savvy to strike advantageous plea bargains...

...Green...

...In so doing, they keep alive the great traditions of defense advocacy...

...Finally, as more serious efforts are made to structure sentences to accord faithfully with the crime and the criminal (in lieu of the, mere token gestures too often being made in this direction today), the role of the attorney as sociologist must be recognized and developed by the legal profession...

...With the overwhelming volume of criminal charges being disposed of through plea bargaining, judges can no longer pretend to ignore the bargaining process taking place right under their noses...

...Where a specialist has been called in, the division of fees must be proportional to the services each lawyer has performed and to the responsibility each has assumed, and then it is only allowed if the client has been fully informed of the arrangement...

...Here, the news media can help by subjecting everything that goes on in the nation's courtrooms to much closer scrutiny...

...What about wiretapping...

...Idealism, service, a feeling for humanity, and hard battle-but only when it is likely to serve the client-have yielded place to fee-getting, stumbling incompetence, and the placid avoidance of boat-rocking...

...They don't do any work...

...The rule, however, is honored more in the breach than in the observance...

...He knows the jockeys and the horses-which prosecutors and which judges are most lenient in which areas-and his stock in trade is seeking adjournments, both to tire adverse witnesses and to switch judges until he ends up in the paddock where his client will be most favorably treated...

...How should charges of police harassment be adjudicated...

...There is the lawyer, frequently an older member of the bar, who remains essentially ignorant of the tools available to him...