In The Practice of Law as a Confidence Game: Organizational Cooptation of a Profession, Abraham S. Blumberg’s major thesis is that criminal-defense lawyers are turned from their duties to the client by the system to get their clients to plead guilty. This is a fair characterization overall, but not universally. Most criminal-defense lawyers put the client first—before personal and professional relationships and “clients”—to some extent.
Those at the “lesser” end of that spectrum are clearly derelict in their duties; those at the “greater” end are paragons of Sixth Amendment virtue.1 Most criminal-defense lawyers are neither derelict nor paragons, but somewhere in between. There are few who could not do a better job of subjugating all else to the client’s interests.
So how can the defendant, desperate to get out of trouble, find a lawyer who will do the best possible job of putting the client’s interests first?
Blumberg calls the practice of law a “confidence game.” There is a difference between a confidence game and a run-of-the-mill swindle. In a confidence game, the mark is led to believe that he is doing something shady. Most bad lawyer advertising is a run-of-the-mill swindle; “we’ll bribe the judge” would be a confidence game. “I am a former prosecutor,” with its hint that the relationships formed as a prosecutor might be used to give the accused some advantage, is a confidence game.
So the best piece of advice for the client who wants not to be the victim of a criminal-defense confidence game is not to expect anything shady. The lawyer who intimates that his relationship with the prosecutor will get a better result should, like the lawyer who intimates that he can bribe the judge, be avoided at all costs. As I’ve noted before, when the lawyer’s long-term relationship with the prosecutor is placed in tension with her short-term relationship with the client, it is not the former that will suffer. Blumberg describes the inherent conflict between the interests of the client and the interests of the lawyer:
The individual stridencies, tensions, and conflicts a given accused person’s case may present to all the participants are overcome, because the formal and informal relations of all the groups in the court setting require it. The probability of continued future relations and interaction must be preserved at all costs.
The defense lawyer’s future relations with the other participants in the system—prosecutor, judge, court staff—depend on her handling of the client’s case; the client’s case suffers because of this dependency.
The defense lawyer might rationalize this—relations with the other participants in the system must be preserved because other clients’ cases will depend on those relations. But it is “the client’s” interests that must be pursued, and not “clients’.” It is not uncommon for a lawyer to face situations in which actions taken for this client might make things more difficult for future clients;2 this client’s interests trump those future interests.3
The Harris County Criminal Justice Center may well do more business than any criminal courthouse in the country, but it is not a big courthouse. We all have insider connections. We all have friends in the DA’s Office and on the bench. The lawyer who is marketing himself based on those connections has got nothing real to sell.
So the client who is not looking for improper influence—for someone in the courthouse to cut him a break because of who his lawyer knows, rather than his lawyer’s training and experience—has a better chance of avoiding the confidence game altogether and hiring someone who will put the client’s interests first.
Even a paragon puts her own interest in behaving ethically ahead of the client’s interest in being free. There are lines that not even a paragon will cross for the sake of the client. ↩
For example, pursuing appeals that might result in bad holdings. ↩
If the lawyer’s choices for this client might prejudice other current clients, he has a conflict of interest and must withdraw. ↩