Sunday, November 23, 2008

Public Defenders, If You Don't Want Clients To Think They Get What They Pay For, Give Them Value: That Lawyer Dude responds to S.Greenfield and Gideon

All day there has been a lively discussion on blogs and on Twitter between myself, Scott Greenfield over at "Simple Justice" and Gideon's Trumpet over at "a public defender."*

What started this discussion was a combination of this post and the comments by the anti-lawyer marketing Mr. Greenfield and then my reply to this post on Accident Prone by Miriam. My sarcastic response to Miriam was then challenged simultaneously by Gideon and by Scott. Well it was almost simultaneous, Gideon got off to a late start.

So if you cared enough to follow all of this, and are still interested, this post is my response.

Miram in her original post (which was brought to my attention through Twitter about 3 weeks after she wrote it) was upset because a client came to her and told her that another lawyer (allegedly a paid or private lawyer) told him w/o knowing any facts that he (the pvt lawyer) could get him a misdemeanor. Now her client is giving her a hard time.

Her response was to scold all Private Counsel and tell us not to tell clients what we could do for her client if we are not going to take the case. I have some sympathy for her plight. After all I am a former Legal Aid Lawyer and I also still take a few Assigned counsel cases each year. On the other hand, it is not all lawyers who put down public lawyers and it is not even always private counsel's fault. I mean unless the lawyer is in the hallways offering unsolicited advice, and unless he is wrong about it, the client must have come to him and asked why his "League Aid" or "P.D." was giving his case such a short shrift. Not only did Miriam paint all of us non-public lawyers with the same broad brush, but she absolutely took no personal responsibility for her client's feelings.

I responded to her sarcastic open letter in kind. I pointed out that Private lawyers often have more experience with the law and with the Judges and Prosecutors than do Public lawyers. I also pointed out that we often engender more trust/value because the client is gets a value if he hires the right lawyer. For example, many, maybe most, public lawyers do not have after hour services. Most paid lawyers do. Many Public Defenders don't work on court holidays but most private lawyers do. Many PD's do not give cell phone numbers but most paid lawyers do.

In other words, I pointed out to Miriam and others that there is a value that paid lawyers provide a client. How many times does a person hear "You get what you pay for." In the context of law, clients who have public provided attorneys feel that they must not be getting very much. That is untrue. They feel that these public lawyers do not care, also not true. They feel like one of a herd of clients and that the free attorney doesn't have time for them. Sometimes true, but sometimes, that is an appearance. (see Miriam's response to my reply on her site).

Why does the client who is getting a free lawyer think that the lawyer he has is not on his side?

Well let's look at the reasons. The Client comes into the arrangement already thinking the worse about your ability. How many times are you able to spend more than a few minutes with the client? Do you work to meet the clients after hours? Do you stay more than three hours after the day is done? Do you have weekly after hours? How do you expect to engender trust in a person you barely know or only know as a file?

Do you or your office take the time to give the client a folder for his things? Do you copy him on all correspondence? Do you give him a chart or a letter explaining the system? How can a client think you know the system if you don't show him you know it? Is he supposed to go with sheer faith. When one is looking at a five year sentence that is asking an awful lot of faith.

How do you and the client best communicate? If he hasn't a computer, he cannot send you e-mail. If he doesn't have a cellphone, he cannot text you. Do you ask your clients if there is a relative? Someone else you can speak to? No? Do you not think that the client might be so scared he needs to have another person available to listen and help him make decisions? If you won't take the time to speak to his family, then why should he believe you care about him anywhere near as much as I do?

Have you gone with a client the first time you send him to Alcoholic's Anonymous meetings? The first time can be scary. Will the client think you are shoving him off to a meeting rather than help him with the problem yourself? Will he think that you are too busy to work with him so the meeting is an easy way for you to rid him of your schedule?

How active in the Bar are you? Do you write articles? Do you give lectures? Many PDs are fond of saying they have the most experience in the courthouse defending cases. That may be if sheer numbers are going to be our measure. If you are not however investing in your profession, then how does the client know if you are respected by your peers and the courts? How does the client know if you are as good as you say you are and not just robotically processing cases to plea?

I guess what I am saying is that public lawyers need to see what they did or didn't do that made her client doubt her. Too often Legal Aid lawyers think that the fact that they are a free lawyers is enough for the client to think them inferior. I do not agree. Even though they are skeptical of you, your clients want and need to believe in you. You however have to earn that belief.

One thing I will agree with, is that lawyers have no right to put down a Public lawyer's ability anonymously. On the few cases where I am approached by a Legal Aid Society client on a case, I obtain their permission to conference the case with their present counsel. On the other hand, do not expect me to back you up if your work has been less than stellar. Usually, thank goodness, the Legal Aid member has done a good job on the case, but hasn't built a relationship with the client. In my call I ask about that too, and I try to help them with that by both explaining the lawyer's position and by acknowledging their needs as well. That is not only good practice, but it is also good marketing. Which leads me to my next issue.

My friends Gideon and Scott think that when I write things like this I am marketing myself. That my interest in feeding my family and paying my staff "makes me dirty". Scott especially is of the opinion that marketing lawyers do a disservice to the profession. I heartily disagree. I think I am a very good lawyer. I also refer cases to lawyers I think are very good. I do not think most criminal clients have a clue as to who to ask for a recommendation nor what they need from the lawyer. If all I have is a website, that is no better than an ad. I am not teaching them anything about myself. On the other hand, my blogging and my tweeting and my question answering, all go to educate the client as to not only what I am writing about but also as to who I am. I am not saying "Hire Me I am good for you." I am saying "read what I write and see if that is what you want and if you will be comfortable with me." That is marketing, but is in my opinion talent related and legitimate. I feel I have a duty to help potential clients find a good lawyer.I am that person, and if I am not, I probably know who is.

I think Scott is deluding himself into believing that he is not marketing his talents by writing a blog. He says that since he is not trying to get clients from the blog, he isn't guilty of marketing. That marketing is but a by product of his more altruistic attempts to educate the masses.

Scott, if that is the case, Shut down the blog and write anonymously. Hell you know people are going to want to hire you. You have a disclaimer on the page that clearly says "
Nothing in this blog constitutes legal advice. This is free. Legal advice you have to pay for."
You then provide two links to your website one that links to a page where highlighted is the comment
"If your goal is to achieve the best possible outcome, you need a lawyer who can get the job done.
" That page lists your accomplishments including your AVVO.com rating and your Martindale rating. (Both very impressive btw)

Now Scott, Gideon, if I were marketing, wouldn't I link my blog to my Homepage? Nothing on the front of my blog links you directly to my website. Further, even if you click onto my name when I leave comments, it links you to a page on my site that links to my blogs and does not mention one of my accomplishments (Stop snickering I have one or two!)If I were using the post at Accident Prone or this post only to market, I am doing a lousy job of it.

No I wrote the post to help Miriam and other PDs to see that advice is not all that they are good for. That clients value a relationship and knowledge and clout. That your poor clients and my wealthy ones both want a value to the representation given them. Just because your client cannot afford me, does not mean he doesn't want that experience. I wrote "harshly" because that is how I felt she wrote her original post. I am sure she can take as good as she gives. Nice of you guys to come to her defense by completely misstating the motive of my reply though.

Funny but I am not seeking, nor are many lawyers I know seeking legal aid clients. If they can afford me, they shouldn't have Legal Aid to begin with.

By the way, I am far from perfect. I don't always provide the value that I have described. I try to however, on every case. At least I acknowledge what the value is. Miriam's original open letter didn't seem to me to even see that maybe she needed to engender a more supportive relationship with her client. I also took her letter to be offensive to hard working Private lawyers. Do not "paint" me with a broad brush if you don't want to be "Spackled" right back.
After all, I am from New York.

* This column is not about twitter or blogging, but it is interesting to note how we three bloggers have used both the blogs and Twitter to enhance the conversation. IF you want to read some of the back story you can follow Scott Greenfield at Twitter.com/ScottGreenfield and Gideon at Twitter.com/Gideonstrumpet. Of course you can follow me at Twitter.com/ThatLawyerDude. Get on Twitter and follow the discussions.
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