Throughout my legal career — including at Quarles &
Brady, as a solo practitioner, and especially as a writer — I’ve pondered a
wide variety of “conflict of interest” scenarios. And while attorneys are conditioned to run
scared from any situation that could conceivably be construed as a
conflict, there are two huge conflicts of interest sitting right
under our noses. First, let’s begin with
state bar associations.
The mandatory, integrated state bar is such an obvious
conflict that it needs little explanation.
In a nutshell, the bar forces attorneys to become members, takes their
dues money, and then actively works for “the public” and against its membership. Some state bar associations still pretend to serve their membership, when
actually they are nothing more than Great Public Protection Perpetual Motion Machines: “The [attorney] members of the State Bar might still be
stakeholders in the discipline system but that stake has shrunk to the size of
the steak you order in a trendy restaurant, the one hiding under a stalk of
asparagus.” But as the Irreverent Lawyer informs us, some state
bars might do away with this pretense altogether. The State Bar of Arizona, for example, proposes
clarifying the issue as follows: You, attorney, must join our ranks and pay
your annual dues, and we will serve you only if it doesn’t conflict with
our “mission . . . primarily to protect and to serve the public[.]” (For all of the Irreverent Lawyer’s
posts on “your friendly state bar,” click here.)
My view is that if you’re working against me, state bar, then don’t add insult to injury by taking my money to fund your operation. Get your money elsewhere — for example, through a tax on the “public” that you are so eager to “protect and to serve[.]” (I’d also like to see how badly the public would want your “protection” if the public, and not the attorneys, had to foot the bill.)
The other huge bureaucratic conflict of interest is the state public defender’s office. (I
am not talking about the individual public defender-lawyers,
but rather the bureaucratic structures throughout the country in which the
lawyers are forced to work.) For
example, why would Wisconsin ’s Governor try to expand the state’s public defender office by 46 attorneys
while leaving the number of state prosecutors unchanged? Is it to be soft on crime, or to “insult” the
state’s prosecutors, as District Attorney David O’Leary believes? Of course not. (In fact, O’Leary’s criticism could be the
worst criticism in the history of criticisms.)
The Governor’s motive is to save money, ultimately at the expense of the criminal
defendants that the public defender’s office is supposed to serve.
Here’s how it works.
If a defendant qualifies for public defender representation, he’ll get
either: (1) a public defender; or (2) a private attorney appointed by
the public defender’s office. The public
defender gets a fixed salary and has to take X number of cases — former
public defenders tell me more than 200 mid-range felony cases or the
equivalent (for example, more than 400 misdemeanor cases) per year. The appointed private attorney, on the other
hand, typically gets paid $40.00 per hour. (This
isn’t always the case — but that is a topic for another post.)
If the Governor gets his way and expands the public defender
bureaucracy, then “The increased capacity means private attorneys would be relied on less[.]” That saves taxpayer money and also guarantees more convictions. How? Because with a caseload of 200 – 400 cases
per year, an overworked public defender has no choice but to grind more of his
or her cases through the plea-bargain machinery instead of going to trial. (For a more thorough
discussion of how an “impoverished defense bar” and “high plea rates” conspire
to “generate convictions in bulk, often without meaningful scrutiny of whether
those convictions are supported by evidence[,]” see Alexandra Natapoff’s article simply titled Misdemeanors. And for an example of how some public
defender attorneys have fought back against this system, see Erik Eckholm’s article Citing Workload, Public Lawyers Reject New Cases.)
So there you have it: state bars working for “the public” at
the expense of their memberships, and public defender bureaucracies expanding
to save taxpayer money at the expense of their clients. But what’s the solution? Simple.
First, do away with the mandatory bar, making state bar membership
voluntary. (Hat tip to the Irreverent Lawyer for finding that article.) And second, go back to the pre-public defender era and provide indigent defendants with counsel via reduced hourly-rate private bar appointments.
In the meantime, if anyone can think of two more glaring
conflicts of interest in the legal profession, I’m all ears.
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