So Your Lawyer Has Some Influence?

Saturday, Scott Greenfield posted about the ethics of defense lawyers who make a big deal out of the fact that they used to be prosecutors and can therefore do a better job of defense.

Scott, let’s say, has his doubts:

The pitch is intended to capitalize on a basic misperception by the public, that the skills one develops as a prosecutor, characterized as “experience in criminal law,” translate into the skills one requires as a criminal defense lawyer.  As has been discussed ad naseum, there is no intrinsic connection between the two…

What of the ethical duty on our parts as attorneys to not mislead the public?  Knowing, as we do, that experience as a prosecutor is not the equivalent of experience as a criminal defense lawyer, is it ethical to feed into this misapprehension and exploit the public’s ignorance? 

I’m not real fond of that argument. Just because Scott Greenfield says prosecutorial experience doesn’t help a defense lawyer doesn’t make it true, and saying it does doesn’t make you a liar. Surely an ex-prosecutor who thinks his experience helped him is entitled to say so?

But Scott has a much more compelling point:

A secondary implication, which is often suggested, and sometimes overtly claimed, is that by being a former prosecutor, a criminal defense lawyer has some inside track to getting his old buddies to let him have special sweetheart deals, or that he’s got some special friendships with the judges before whom he appeared day after day after day, who will do him (and therefore you, dear client) special favors that would not come your way but for his inside connections.

…

This is an outrage and affront to everything that we do.  You suggest, if not scream, to the public that the criminal justice system is overtly corrupt, a game of back-scratching where prosecutors dole out deals to friends and judges put favors above duty.  You demean what little dignity there is left to the law, and feed into the public perception that we are all engaged in one big scam on the public.  It’s not what you know, but who you know.  It’s not hard work, but cronyism…

To suggest that the criminal justice system, the courts, the judiciary is corrupt, and that one lawyer can exert special influence, is a disgrace.

Yeah, it is disgraceful, and it shows contempt for the legal system.

However, having lived in Chicago all my life, I’m somewhat confused by Scott’s argument. Is it disgraceful to suggest that the judiciary is corrupt when, in fact, the judiciary is corrupt? (Only a few, but enough to cause trouble.) I mean, it certainly is disgraceful that the judiciary is corrupt, but is it still disgraceful to suggest it?

I guess it is this confusion that leads me to really appreciate Houston lawyer Mark Bennettt’s observation about a hypothetical ex-prosecutor who says he will use his connections and influence on your behalf:

What he’s saying is that he’ll exploit his relationship with the judge for your sake.

This suggests that a) he is friends with the sort of people who would take a dive and violate their duties for the sake of their friendship with him; b) he is the sort of guy who would ask them to do so; and c) he thinks it’s okay for a professional to take a dive. This is always a two-way street — birds of a feather and all that.

So: the lawyer has had a relationship with the prosecutor for, say, ten years and expects to for twenty more. He has had a relationship with you for ten minutes and expects to for six more weeks.

Which relationship do you think he’ll forsake for the sake of the other?

Exactly.

Although…the way Bennettt formulates his response leads me to suspect that Houston doesn’t have much of a corruption problem. Otherwise he’d know that a lawyer with clout doesn’t forsake relationships, he makes them. For example, he’ll introduce his old friend the corrupt prosecutor to his new friend who has access to cash in small bills.

That said, I think there are two corollaries worth keeping in mind when dealing with a lawyer who has “influence”:

1. If he really has significant influence over prosecutors or judges, he wouldn’t have to advertise wherever you found him.
2. If he’s he’s for real, then by definition he’s a crook, so you have no right to be surprised when you discover he’s ripping you off and screwing your wife.

What I guess it comes down to is that either the guy who wants to be your lawyer is lying about his influence, or he’s part of what the FBI calls a criminal enterprise. Neither of those things is very good for you.