Criminal Defense and the Societal-Good Heresy [updated]

[Updated to include David Hardaway’s name, at his request.]

A defense lawyer appeals his client’s second DWI conviction, arguing that the client should be punished for a first DWI because the State did not plead or prove the first conviction (which acted to enhance the class-B misdemeanor first DWI to a class-A second) in the culpability phase of the jury trial.

He wins: The Court of Appeals holds that the first conviction is an element of the class A. His client gets some advantage. Future DWI-second defendants have to face juries that know that they have been convicted before of DWI (because if it’s an element and the State has to plead and prove it, the jury knows about it before finding the accused guilty or not guilty).

And the DWI-defense bar1 loses its collective mind. How dare the lawyer appeal this case? Every defendant with a second DWI in Texas just got screwed! Lives irrevocably damaged! A disaster! Blown away!

Literally shaking.

I respond to one young lawyer (David C. Hardaway of San Marcos) who asked if it is “ethical” (his doubt quotes) to throw future clients under the bus for the sake of a trivial win for the current client:

First, here is a difference between a Class B conviction and a Class A conviction: http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.12.htm#12.43 There may be others that I haven’t thought of, but I can see why that would matter to a defendant.

Second: Yes, it is ethical to throw the whole world under the bus for the sake of the client’s interest. There is not even a question.

What are “countless future clients” but the society in which we live? And so what is the argument for withdrawing? “I have a job to do, but I find that society is better served by my declining to do it for this client.”

Do you recognize that argument? It is also the argument for “not representing people who you think are guilty.” Are you that guy too? Of course not.2

What’s the argument for not withdrawing? “I have a job to do, and I shall do it for this client.” You want to criticize a brother criminal-defense lawyer for doing his job, and doing it well? Take a deep breath.

Our attitude toward the client in opposition to society is at the core of what we do: We are the ones who tell society it is wrong.

Speaking of “society’s interest,” most non-lawyers would agree that the fact of a prior conviction for the same offense was relevant, so that it is in society’s interest for a jury, in deciding culpability on a DWI, to hear about a prior DWI conviction.

If we start using “the interest of society” rather than “the best interest of this client” as our guiding star, due process goes down the drain fast. For, as Tyler Flood says: “Listen, most of the people we get off are intoxicated. But that’s the justice system,” he says. “I’ve always thought people would be very concerned if they knew what we were doing.”

David Hardaway replies:

Mark, your points are valid and well-taken and they don’t seem at all harsh. After taking a breath, I realize that we all do our jobs on a very slippery slope. I personally try to navigate that slope a little bit more than most, as I do everything in my power to avoid taking on clients I can’t empathize with (I represent guilty people, but not if they’ve done something I find indefensible). Consequently, I wind up sending a lot of business elsewhere. I also realize that the system as a whole would come to a grinding halt if everyone operated in the same way as I do, and so I try not to judge harshly those who make different choices in that regard. Your overall point of view is not one I personally agree with (although I’m sure that most on this forum differ from me), but I realize that those who share your viewpoint are indispensable to a properly functioning justice system. We could go back and forth for eternity on those overarching philosophical questions, but in the interest of brevity please allow me to focus on this particular instance and maybe clarify what I was getting at earlier.

What is particularly upsetting in this particular case is how trivial (and possibly non-existent) the benefits received by Mr. Olivas are in comparison to the damage being caused to so many others (some of whom might in fact be real, living, breathing current clients of the appellate attorney). I understand there are some theoretical benefits to a B versus an A, but from a practical standpoint they are likely to be virtually nil, as best evidenced by the 180 days he originally received on the same facts he will be armed with the second time through. I personally find it appalling that it was appealed on that particular point, and the attorney who did this was being incredibly short-sighted at best and selfish to the point of being downright anti-social at worst, IMO. Many may line up to shake his and similarly acting attorneys’ hands for his zealous advocacy (and his successful? outcome) but I will never be one of them. That sort of me-first-I-don’t-owe-society-anything worldview is a pervasive societal sickness that is going to eventually lead to our collective, well-deserved demise. Perhaps that is a bit hyperbolic, but as a trial lawyer hyperbole is the currency I deal in. Bottom line is that I understand and respect your point of view, even though I mostly disagree when it comes to how I choose to practice. But I disagree with this particular scenario enough as to feel far more justified in my outrage than I normally would.

I have the privilege every year of speaking to the Thurgood Marshall School of Law’s criminal-defense clinic. The theme of my talk is the ethical misconceptions that old-school lawyers hold, and how to avoid them. For example, the idea that a lawyer may not talk to a potential client who already has counsel, or the idea that the client may be put on the record to prove up the lawyer’s communications about a plea offer.

“In representing a client you should consider the good of society” is not one of those old-school misconceptions. I doubt that David’s mentors, if mentors there be, instructed him to choose clients, cases, or defenses based on the greater good.

No, that strikes me as a very modern heresy.

Cicero wrote, “It might be pardonable to refuse to defend some men, but to defend them negligently is nothing short of criminal.” It might be pardonable, but it is by no means laudable. We are defense lawyers. We defend. Wir können nicht anders. Among other things, the categorical imperative demands that we do so. What we owe society is to do our jobs.

That David Hardaway thinks he “tries to navigate the slippery slope more than others” and sees himself as in a position to “judge harshly” those with less delicate sensibilities about doing the job reveals an ethical Dunning-Kruger Effect: Low-ethical-ability David mistakenly assesses his own ethics as superior.

Why is it not ethically superior to represent only people whom you judge deserving? This is just a form of The Question, to which there are lots of good answers,3 but if David, after seven years in practice, has not learned and internalized the axioms on which two thousand years of criminal-defense history are founded, I’m not going to change his mind.

The Part I took in Defence of Cptn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country. Judgment of Death against those Soldiers would have been as foul a Stain upon this Country as the Executions of the Quakers or Witches, anciently. As the Evidence was, the Verdict of the Jury was exactly right.

–John Adams

So no, Mr. Hardaway, we couldn’t “go back and forth for eternity on those overarching philosophical questions.” Those questions have long been answered, by people smarter than you and wiser than me, to the satisfaction of the criminal-defense bar if not the general public. Nothing you have to say changes the correct answer that a hundred generations of your ethical betters have reached.

David Hardaway, I’m putting this up as a monument to your foolish unethical hubris and a warning to your potential clients. Your new ideas are bad, you are wrong, and you should be ashamed. You call yourself a criminal-defense lawyer; you’re a poser.4

Do your damn job, or get the hell out of the way and leave it to someone who will.


  1. Bless their hearts. 

  2. Apparently he is, as it turns out, that guy

  3. Not including “I represent guilty people, but not if they’ve done something I find indefensible.” 

  4. And if you want to keep digging, there’s a shovel in the comments for you. 

22 Comments

  1. I have heard about, but not (yet) witnessesed first hand, something like this attitude in the immigration bar. Certain organizations that place clients allegedly urge the pro bono lawyers not to appeal bad results for fear of setting a bad precedent at the Board of Immigration Appeals. Unconscionable if true.

  2. Well written, and well thought out. We are in agreement. Justice, and representation of our clients, must be case by case, individual client by individual client. I was stunned by the outrage generated because a fellow lawyer did his hob for his client.

  3. Mark,
    As always you do a tremendous job writing. There are so many excellent points here, including zealous advocacy and ethical misconceptions that many attorneys have. It is a refreshing reminder for a defense bar whose actions are often curtailed by the fear of “making bad law.”

  4. well reasoned, well written-my zealous advocacy of one client is ethically unrelated to what may happen to any other citizen accused of an offense- it must always remain so -(btw, not the one married to jani wood)

  5. “That sort of me-first-I-don’t-owe-society-anything worldview”

    The only people who get screwed by this are repeat DWI defendants. That’s a peculiar definition of “society,” particularly coming from a guy who doesn’t represent the distastefully guilty.

      1. Yep. Less so now that I have kids that I drive around, but it’s something I have to remind myself of every once in a while.

  6. My fidelity to my client is what constitutes my honor as a lawyer. Often the criminal justice system I work in is a horror; the main thing that can redeem it sometimes in some ways is a competent, courageous defender. And the people who need the redemption are moral monsters, the guilty, and those hated most by society, the damned, the wretched of the earth. They need people to be loyal to them.

      1. Assuming you mean “effective rhetorical sleight-of-hand,” it’s well put indeed. Sometimes effective defenders redeem the system. Of course, other times principled prosecutors and fair-minded judges and hard-working jurors do. But, oh my, “… moral monsters, the guilty, and those hated most by society, the damned, the wretched of the earth.” is a lovely piece of work. It starts with fundamentally evil people. It moves on to people who, for whatever reason have committed a crime- any crime. And it comes to rest at last with the victimized, as if all those categories can be meaningfully conflated… but blink and you miss it.

        This is very, very simple. Everybody’s entitled to a zealous defense, because the necessary alternative is that some people aren’t- “Everybody’s entitled to a zealous defense, except cannibals.” “But I’m not a cannibal!” “You aren’t allowed to defend yourself against that charge.” That’s… not going to work. Criminal defense is a necessary and honorable practice which furthers the cause of justice. But repeat DWI offenders as “the wretched of the Earth?” Angels and ministers of grace preserve us.

      2. Iris, you think that “moral monsters,” “the guilty, “those hated most by society,” “the damned,” and “the wretched of the earth” are separate categories because …?

        Maybe in the alternate universe that you inhabit the moral monsters tend to be happy?

        (Also, I think you’re confusing your threads. Bob’s “wretched of the earth” are plainly those whose crimes David finds “indefensible.”)

  7. As an appellate attorney I didn’t realize that rather than the legal issues that come up at the trial I should be searching the record for best interest of society issues. I’ll make sure I comport my practice with the unwavering standards of “David” and file Anders briefs for all my cases now indicating that there are no legal issues to be reached that won’t negatively impact society.

  8. Do you have an outline or written version of what you teach at the Thurgood Marshall clinic that you’d be willing to share or post? Many of us surely would find that to be beneficial.

  9. It is unethical to not raise every issue that is good for each client. If you are worried about what is good for your other clients or your future clients then you can’t zealously advocate for your client.

  10. I’m glad “David” tries his best to not judge the rest of us too harshly for doing our jobs. Some of our clients do terrible things. The first step toward helping them is finding and respecting their humanity. I’m doubting you have a career change, so I hope you give it a try next time you defend a person you’ve done everything in your power to avoid.

  11. I don’t see a “reply” button under Mr. Bennett’s question addressed to me.

    *** “Iris, you think that “moral monsters,” “the guilty, “those hated most by society,” “the damned,” and “the wretched of the earth” are separate categories because …?” ***

    Because they are. If someone would inflict pain on others for the sheer sadistic pleasure of it if only that person weren’t afraid of the consequences, that person is a moral monster but not guilty. Conversely, if a person murders the murderer of her child, she’s guilty but not a moral monster. The up-and-comer in the “most hated” category these days is the illegal immigrant, who is not a moral monster and guilty only in a pretty trivial sense. “The wretched of the Earth” refers either to The Internationale or Frantz Fanon’s book; in either case, the wretched are innocent victims of malfeasance by the ruling classes or colonialists, respectively.

    *** “Maybe in the alternate universe that you inhabit the moral monsters tend to be happy?” ***

    I don’t see why not. Without committing the CDA equivalent of a Godwin, the moral monsters I can think of are mostly just unhappy they got caught.

    *** (Also, I think you’re confusing your threads. Bob’s “wretched of the earth” are plainly those whose crimes David finds “indefensible.”) ***

    That’s just the point! No, they’re NOT, but it’s very much in Bob’s clients’ interest that he convincingly portrays them as such. He should, and if that post is any indication, he probably does. But there’s no reason outside of a courtroom to pretend moral monsters are, in the end, just poor schmucks who can’t catch a break. Defending moral monsters is virtuous and honorable because it’s to society’s enormous benefit, not because they deserve it.

    By the way, there’s a category of moral monster Scott Greenfield won’t defend- link available upon request. Does he still have credibility as an ethical attorney in your eyes?

    1. Don’t get too comfortable with that feeling of superiority, now, hear? The only difference between the monster and you is luck of the draw.

      I think you should ask Scott how he reconciles his distaste for certain cases with his ethical duty.

  12. As fun as it is to beat up on the young and inexperienced David, let’s not forget what got that conversation started: a much more experienced DWI lawyer said, “I am flabbergasted that this was appealed.”
    I was gobsmacked by that statement. She was “flabbergasted” that an appellate lawyer raised a claim (successfully) that the State failed to prove all the elements of the offense?
    Pure insanity.

    1. I seriously doubt that she would give me permission to republish her listserv post at this point. (In fact, I never thought she was dumb enough to do it; I doubted that even David Hardaway would be.)

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