Over the years, I have been cognizant of members of the bar who, while having the piece of plastic in their pocket that says they are members of the State Bar, were not living up to the high ideals of the profession. This gave me a sense of unease, but I could not put my finger on the problem.
Then it came to me. I was finally hit with the realization that many of us are not lawyers in the highest sense or counselors at law but rather just salespeople out to make money. Three experiences made me come to that realization.1 These experiences just seemed to hit me all at once and have an impact on me. And mind you, I have been practicing criminal law for over 30 years.
The first experience that made me think about what our calling is, or should be, was when I was appointed to represent a young Black male charged with drug possession in a drug-free zone. I got to meet the young man and he seemed like so many youths of today, uncertain about what he was going to do with his life. His case was set on the magistrate’s docket, and right off I was given a really good deal. The deal was reduce to a Class A possession of a controlled substance, Zanex, with either time served or a two-year deferred. I would get my voucher paid within two weeks (and like everyone else I need the money), and my client gets out of jail. But is that all I should be doing? Is that what lawyering is?
I will not plead anyone until I have investigated the case as to the facts and all applicable law. I also have to know who my client was and what would be in his best interest—not only now but later in life. So many young people might have been diverted and their lives improved had someone done more than process them quickly through the system and get their quick fee.
In this case, I decided to do all I could to get him out of jail and into some kind of counseling. I also decided that given the stop-and-search issues and the constitutionality of the drug-free zone statute, I would do all I could to get the charges dropped. There were serious issues concerning the officer’s detention of the young man and the subsequent search and interrogation.
These issues merit challenge. I do not know if I will succeed and if this will ultimately have a positive impact on this young man, but a quick plea and a quick fee would not have been “lawyering” in my opinion. I will have invested more time and received less money for my time on this appointed case. But I feel that I will have lived up to my oath of attorney, to “discharge [my] duty to [my] client to the best of [my] ability.”2
The next experience that caused me to rethink our profession was when I was in a county court and saw a young associate of a “firm” with a stack of files a foot high, going through each for about five minutes with a prosecutor who was doling out plea offers. I was thinking how in heaven’s name could these clients be getting the benefit of Padilla,3 Lafler,4 and the Performance Standards for Representation on Non-Capital Offenses? The answer is no darn way!
While that lawyer was going through this quick bargain-basement sale, another came in with a daily docket with 50 people on it getting reset after reset—all the while I waited in line to reset the 2 cases that I had been working on. I thought wow, intense advertising, in-office sales pitches, cut-rate fees, and a lot of money. But is this lawyering? Does either live up to our Oath of Attorney?
The next experience was one that just made me wonder whether this was an honorable profession, one that I could be proud of and continue to be part of. That experience involved a contract lawyer—for a high-volume firm—cutting a quick but ultimately terrible plea deal. This was a young lawyer hired by a high-volume, heavy-advertising firm to handle a felony driving while intoxicated case.
These contract lawyers get a fee that is capped at a certain amount. They are tasked with working the case out in order to get their fee (and thereby make themselves a profit). These capped fees do not envision taking a case to trial. These capped fees don’t even envision the contract lawyer doing the kind of evaluation envisioned by the Performance Standards. And, in my opinion, these capped fees create an inherent conflict of interest between the lawyer’s financial self-interest and the client’s right to diligent, competent representation.
The problem with lawyers contracting to take these capped fees is that it ultimately results in representation that is questionable, at best. This lawyer did not view the video of the stop or of the field sobriety tests. But he made a quick offer to the prosecutor for a long probation with a long jail sentence as a condition. The client, not knowing any better and rightfully relying upon his lawyer, took the plea.
Fortunately for this defendant, a friend of his who is a lawyer referred him to an attorney who takes lawyering seriously. The client was awaiting sentencing and decided to retain the lawyer he was referred to. The newly retained lawyer undertook an investigation and viewed the video. In doing this, he discovered how weak the case was.
After convincing a prosecutor (who is higher up the chain of command) to view the video with him, that prosecutor also had doubts about the merits of the case. The prosecutor who handled the case was brought in to discuss the case. Both prosecutors and the newly hired lawyer went to the judge with a motion for new trial to set aside the guilty plea. The ultimate result was a reduction to a misdemeanor.
What a difference! An attorney who takes his Oath of Attorney seriously and realizes that his relationship with his client is one of uberrima fides—instead of a lawyer who is only concerned with counting the stools.5
These scenarios play out daily in our courts. But is this abiding by our oaths? Is it really lawyering? Is it fulfilling our obligations to our clients and to the courts? Not in my opinion.
I am very proud of my membership in the Texas Criminal Defense Lawyers Association. I am equally proud of my fellow advocates, those who abide their Oaths of Attorney, those who believe in the values of our United States and Texas Constitutions, and those who fight daily to defend and preserve the Rule of Law. My concerns are not with those of us who are members of this organization, those who are the true advocates. My concerns are with those lawyers who have lost sight of what lawyering really is, and especially with those who are not members of our group.
But what the lawyers depicted in the above scenarios are doing by putting business models and the bottom line first is having a negative impact on our practices, on us individually, and on how others view us. Is it any wonder that used car salesmen continue to have a more favorable opinion among the general public than lawyers do?
So how do we address the concerns I have raised? I am not sure. One possibility would be for TCDLA to propose some guidelines of our own and to disseminate those guidelines to lawyers who handle criminal cases. Another would be educating the public about what they should expect from those who take on the responsibility of undertaking their cases. Public Service Announcements (PSAs) work great for this sort of thing.
Another could be a willingness on each of our parts to look at previously pled cases when clients who have priors come to us with new cases—looking more closely at those cases not just in terms of how they affect a client’s liability on a new case and how they can be proven up, but on what was done in securing the plea to those cases in the first place. In looking at those previous convictions, if they were the result of guilty pleas, we should look at Padilla, Lafler, and the Performance Standards to determine if the pleas were intelligently and voluntarily entered. In those cases where the pleas do not appear to have been entered intelligently and voluntarily due to the ineffective assistance of counsel, we need to be willing to file post-conviction habeas applications to set aside those pleas. And perhaps we need to set up a committee within TCDLA to accept and file complaints with the State Bar against attorneys whom we see engaged in these practices.6
We are the first line of defense against governmental excess. We are defenders of our Constitutions and of the Rule of Law. Our decisions and our performance can affect people and their families for years to come if not for the rest of their lives. And given our high calling, we must do all we can to make sure that all of us who undertake this calling remain true to the highest ideals of that calling. Help me address these problems. Be silent no longer.
1. The experiences detailed in this article are those of Leonard Martinez. While this article is written in the first person, Butch Bradt has had similar experiences and agrees with the views and opinions expressed by Leonard Martinez herein.
2. § 82.037, Tex. Gov’t code.
3. Padilla v. Kentucky, 130 S.Ct. 1473 (2010).
4. Lafler v. Cooper, 132 S.Ct. 1376 (2012).
5. This is an expression from the restaurant business. It refers to the profit that can be made from a given number of chairs. To make a given profit, the restaurateur must either raise prices or increase the turnover, increasing the number of patrons in a given hour. The same logic applies to lawyers who have a “volume practice.”
6. Rule 8.03(a), Texas Disciplinary Rules of Professional Conduct requires us to report lawyers who violate the applicable rules of professional conduct.