Let the Government Clean Up its own Mess

Scott Greenfield has an interesting pair of recent posts: The Conflicted World of Assigned Counsel and today's Rebirth of the Megatrial.

In the first, Scott argues that New York's appointed counsel system was not intended to, and should not, provide livings for criminal defense lawyers:

[T]here should never have been an 18b bar to begin with. It was my thought that no lawyer should be permitted to do more than 10 assigned cases a year. That way, no one would ever be able to build an entire practice on assigned counsel work alone. They would be required to find retained clients or else a new line of work. No one should live solely off of assigned work, and if they wanted to represent indigents that badly, they should get a job with Legal Aid.

In the second, Scott brings word of two related massive indictments: a 62-defendant federal indictment out of EDNY and a 26-defendant state indictment out of Queens County. That should be joyous word for the criminal defense bar -- "massive indictments inexorably lead to massive trials", for which 87 (New York math?) alleged members and friends of the alleged Gambino crime family each will need competent counsel. But

there is a strong likelihood that many (if not all) of the defendants will be unable to retain counsel to represent them in this matter. Between the limitations on funds available for use to retain counsel, the sheer anticipated length of this case, the potential conflicts of interest that will preclude the usual assortment of lawyers who represent alleged organized crime figures, it is hard to imagine that many defendants will be capable of retaining counsel for the trial.

We're talking about a possible year-long trial, if history (the Pizza Connection case, which saw 22 defendants tried in a converted gymnasium for more than sixteen months) is an indicator (but N.B. the Pizza Connection case wasn't tried in the Carnival of Snitches that is today's federal criminal justice system; since then the system has developed to create incentives for snitches so that prosecutors can avoid most trials entirely).

Think of the economics of that: to hire a rational lawyer to try a case for a year, first you'll have to pay her for the months and months, if not years of anticipated pretrial litigation, evidence review, and trial preparation. If the case went to trial for a year, you would have to pay that lawyer much more than her anticipated gross for that year. She's not going to be working on much aside from your case, so you'll be paying her rent, Westlaw bills, staff, insurance, utilities, and everything else that she needs to stay in business. Further, there is a vast and incalculable opportunity cost to her for trying your case for a year; you'll have to cover that too.

This being New York, the trial costs won't have to be paid up front, and you can't buy trial insurance. So you'll have to deposit the anticipated cost of a trial in your lawyer's trust account so that she has it available in the event of trial.

How much money are we talking? In New York, I think it's safe to say that competent counsel with more than a few years of experience is going to require a deposit at least in the high six-figures to take one of these cases and commit to trying it. None of the New York criminal defense lawyers I know well would -- or should -- blush to ask for over a million dollars to take on this case.

But what if you're an alleged crime boss, and you don't have a million dollars hidden under the birdseed? What if, as Scott suggests, you are one of the many who is unable to retain counsel to represent you in this matter?

If you're one of the 62 defendants in federal court, you'll most likely be appointed a CJA panel lawyer. This lawyer will be paid $100 an hour for every hour spent representing you. Just for a year-long trial (not for any of the lead-up, which will probably in itself take thousands of hours) he'll probably earn $300,000-plus of taxpayers' money. That might seem like a lot of money for a year of work until you consider that he has to pay his fixed overhead, office expenses, staff salaries, phone bill, library bill, insurance and so forth out of that while not having any other business. New York is an expensive place to practice; a lawyer with spartan tastes in overhead might finish the year netting (WAG here) $150,000 of taxable income -- a little less than a BigLaw first-year associate gets paid. That lawyer, however, will have seen his practice (if he had one) decimated by the yearlong trial.

If you're one of the 26 defendants in state court, you'll be appointed 18b counsel. He'll be paid $60 an hour for out-of-court work and $75 for in-court hours -- less than 3/4ths of the CJA lawyer's pay. And at the end of the yearlong trial the lawyer will net maybe $75,000, will have seen his practice (if he had one) decimated, and will (if the reforms that Scott favors are instituted) be pretty much out of 18b work as well.

So what kind of lawyer would voluntarily take one of these cases without more than half a million dollars in the ol' trust account against the eventuality of trial? That is, who'll take the case on the government's nickel?

An independently-wealthy true believer, for one. A lawyer who didn't care at all about money, and whose spouse didn't care at all about money, for another. Good luck finding either of these.

A lawyer who doesn't have a practice to maintain, or who isn't thinking ahead, or who thinks that taking such a case will be a good way to make a name for himself. Would you really want any of those representing you?

Who's left?