Adjusting. Part One

When I was a public defender, I was always a little torn about clients who wanted to hire a private lawyer.

A client would ask me, "Should I get a private lawyer?" or, worse, of course, "Should I get a 'real lawyer'?"

Sometimes I felt like, "Yeah, if you can afford one, you should. Leave the public defenders for those who really need them." You know, like people who have money but scam to get on food stamps.

Other times, I had clients that were really struggling to make ends meet, but I could tell they were wondering if giving up anything and everything they ever had might be their only way out of their impossible case.

I would say to them, "Look, do what you have to do. But so long as you're my client, I'm going to work as hard as I can on your case. Here's what I'm going to do..." and I would spell out my plans for their defense.

Some people have it in their heads that "you get what you pay for" and that a private attorney, therefore, must be better than a public defender.

But I always thought, it's like anything else: There are good public defenders and bad public defenders, just like there are good private attorneys and bad private attorneys.

At one point, I had this one pain-in-the-ass client. I remember when he announced he was thinking about getting a "real lawyer." I tried to keep not break out in a huge smile as I said, "You know, you're right, I think a 'real lawyer' could really be helpful in this case..."

One day I got a call at random from a client who wanted to let me know that his family had hired a private attorney for him. "No offense," he said. (None taken.) "Besides, this lady, the lawyer, she told me that she has about 100 cases as a time and that public defenders have like 300 or 400 cases at a time, and she'll be able to spend a lot more time on my case. Is that true?"

What could I do? Tell him that his newly retained lawyer had already lied to him? The truth was, my case load as a public defender was also around 100. (Sometimes I'd get lucky and hit a 80-90 lull, sometimes I'd be busier and hit a 110-120 overwhelming period.) And I was kind of surprised to learn that a private attorney might have that same caseload.

But I told the client, "You'll be fine," and assured him that I would send his file over to his new lawyer.

The truth, I see now, is that some private attorneys just can't be as busy as a public defender - they just don't have that many potential new clients calling their office. And I think that other private attorneys probably have a hard time turning clients away - you don't know that you're always going to be able to pay the bills, you don't know when you're going to hit a slow time, so you'd better take the money when it's walking in your door.

But as a public defender I had a limited ability to cap my caseload. I could go to my supervisors and say "I'm totally swamped," and if I was lucky, they might find a way to help me out of being swamped, or my colleagues might pitch in to help me a little bit. But when each client in the door is paying the bills, you don't want to turn them away, even if you are swamped, so it's pretty tough to cap your caseload.

I also had a limited ability to cap the work I did on each case. As a public defender, I could say to a client, in a very polite way, "I understand that you want to have another conversation about the same thing we discussed yesterday and the day before, but I just do not have the time to have that same conversation again today. So I'm going to ask that we not do this today, and maybe we can talk again in a few days or you can call me back if something new happens that you need to talk about."

I could also say, to a public defender client, "I hear you telling me that we should file an entrapment motion. But your baby momma cannot possibly entrap you into punching her in the face. I'm not going to file the motion. I'm sorry that you're disappointed."

As a private attorney, my clients are much more entitled to my time. After all, they paid for it. That doesn't mean I can't ease my way out of a repeat discussion or a frivolous motion, but it does take a little more finesse.

I guess what I've learned so far is that being a public defender is a volume business. Being a private attorney can also be a volume business, but the only difference is that your clients are never supposed to feel like they're on the other end of a volume business.


  1. It can be quite an adjustment.

    When I did assigned counsel work, which is similar to PD, except private attorneys can take cases and get paid by the state, I would hear the same thing. Or, my assigned counsel clients would think that I was not giving them the same amount of attention that I would give my fee paying clients.

    The flip-side is that often these same clients would take advantage of having a "free" attorney, by trying to drag me into other legal issues. That was really frustrating!

    I think you are a very conscientious attorney. You will do a great job in the private sector!

  2. Interesting... I'm looking forward to reading more about your transition from public to private. I wonder if your clients will trust you more now that they're paying you, and if they'll be more upset with a bad outcome.

  3. This is a great post.

    "But your baby momma cannot possibly entrap you into punching her in the face." That is priceless.

    Good luck with the juggling act. And always remember what a great service you are doing to the citizens of this country.

  4. Now that you are in private practice, how will you obtain new clients? Are they handed to you by the firm your are working for? Do you have to find them yourself? I remember Ken Lammers used to sit in the courthouse and was assigned cases, is this something you can do in your jurisdiction?

    By the way, I own a firm that provides marketing for law firms. I usually handle personal injury and mass torts but I get a few criminal defense cases as well. Let me know your top secret location and I might be able to get you a few new clients ;)

  5. All good thoughts. There are ups and downs for sure. I spent the summer working for the state at traffic court...and i can tell you, most of the PDs were every bit as good as the private lawyers.

  6. I've only recently discovered your blog and it's become one of my favorites. Keep the posts coming!

    Not presuming to give you unsolicited advice (as I give you unsolicited advice), but here's a modification of the "same conversation over and over again" comment that I have used in the past:

    "I understand that you want to have another conversation about the same thing we discussed yesterday and the day before, but please remember that every time I pick up the phone I am billing you for at least 15 minutes. That means that each phone call costs at least [0.25 x hourly rate]. Of course I will make the time for you but if you want to have that same conversation again today, but remember that you will be billed for it. So it's probably a better use of your money to call me back if something new happens that you need to talk about."

  7. Are your clients much more entitled to your time because they are paying for it?

  8. About 90% of my caseload is court-appointed defense work in criminal, abuse/neglect of children and juvenile delinquency, and I, too, get the question about getting a "real lawyer." I am able to tell my clients they are free to do as they wish, and that most of the attorneys available for hire in our area are also on the appointments list, so they already have a "real lawyer" who happens to be state paid.
    I, like you did, assure them that a retainer will make no difference in how I handle their case, because I do not feel that a retained client has any more right to my time than an appointed client. I have discovered that retained clients stop rehashing the same information after they get their first bill, and they get it sooner than 30 days if they've called forty times in the first two weeks.
    Good luck in adjusting to private practice. I am sure the skills you gained in dealing with PD clients will assist you in dealing with paying clients. They really are the same: some feel entitled to your home phone number and every waking moment of your time, and some are just glad you return their calls.

  9. From the client side (well, not that I have the option of a public defender), I spend a lot of time getting good work out of lawyers (for work and in private matters) by making sure they feel valued. Even while I'm cross-checking their work and reading commentaries.

    Further, I'm worse than your clients who tried to pull you into other legal issues: on bigger stuff, I do my best to behave b/c I know that small stuff always comes up.

    All that, and I think of myself as an okay client!