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Trials are war, and I bill accordingly

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My first few years as my own boss, starting in 1998, were immediately filled with joy over achieving my longtime dream of having no boss but myself. A corollary to being one’s own boss is that I have no salary safety net. I am the only one responsible for obtaining clients, serving them fully, recruiting and cultivating my wonderful staff, paying myself and my staff, and administering my law firm.

late civil rights and civil liberties lawyer Joe Rauh said that other lawyers made all the money, and that he and his compatriots had all the fun. It is actually possible for a lawyer to do well as s/he does good. For one thing, when a lawyer puts clients ahead of money, s/he is destined to make more money than when doing otherwise. For another thing, when one loves his or her work, s/he will be more successful at that work, and will accordingly earn more income. In Joe Rauh’s case, I imagine that he obtained some substantial funds under laws that require payment of attorneys’ fees to prevailing civil rights litigants.

My early ideal in law school was to strike it rich in the lottery, and to have a law firm doing only pro bono work. When I told that to a colleague after we had both recently taken the bar exam, he warned me that he had found a serious hurdle to my dream, because that was his dream, as well.

It was a big thrill for me to serve indigent defendants during my five years as a Maryland Public Defender lawyer (1991-96), even though mixed in with my thoroughly poor clients were those receiving plenty of financial support from friends or spouses, but qualifying for indigent defense because they had no income and little assets themselves. However, I had to grasp hard to stay on that cloud nine when shortly after starting as a public defender lawyer, all employees of the agency were told to sign an acknowledgment that we knew we all were subject to random drug testing (which never came about with me, enabling me not to have to know the consequences of refusing such a violation of my privacy), and targeted drug testing when suspected of illegal drug use.

Moreover, public defender incomes are earned from tax dollars, and tax dollars, by definition, are always collected by the coercion of the criminal and civil law liabilities for not paying taxes. Ironically, those prosecuted for not paying their taxes that help pay public defender salaries might end up being defended by public defender lawyers.

I know the substantial human and financial resources needed to be successful in trial litigation. I know the sacrifices of reduced time with my family as I prepare for jury trials, during jury trial days when I must also get additional work done outside of the courtroom, and often during regular work days, which usually include court appearances for trials and pretrial matters. Those who do not wish to work long hours should think twice about being trial lawyers, let alone trial lawyers who are their own bosses. Unless I am going to do work every hour of the day — which weakens a lawyer’s effectiveness by interfering with the important counterbalance of rest, diet, exercise, and enjoying free time — I am going to bill fully for my full service.

In the past, I often felt great dissonance about earning a living defending in an unjust criminal justice system. I have addressed this discomfort and how to transcend it, although no complete solution exists.

Trials are war. War is not fair. A criminal defense lawyer should never approach the battlefield without being fully armed, and knowing how and when to use each weapon. War requires substantial human and financial resources. When a lawyer goes to trial pro bono or low bono, it amounts to the lawyer’s digging into his or her own bank account to finance the trial battle.

For me to be effective in trial battle, I must overcome any discomfort of earning a living defending against an unjust criminal justice system, and instead be fully comfortable on the litigation battlefield, with my battle weapons and in my battle armor. If my fees are too much of a struggle for plenty of people to pay, there always will be lawyers who bill less. For me, it boils down to the following:

Criminal defense lawyers fight against the resources and power of prosecutors and cops. Unlike me, prosecutors and cops even have the legal authority to recruit snitches and to access restricted databases for investigating potential jurors. I bill accordingly — and fairly, also recognizing that the marketplace sometimes leads me to bill less than I otherwise might have billed —  for a full battle, not a half battle.

To offset the substantial financial burden on criminal defendants, we need an effective indigent defense system, and pro bono and low bono contributions from private law firm lawyers.

Nonetheless, a lawyer cannot live on love alone. Few battles and wars are won without substantial human resources, and finances, starting with such basics as my paying my rent, staff, and business expenses before I get to pay myself.

My road to becoming a self-employed criminal defense lawyer took nine years, starting with two years doing litigation and regulatory work with a Washington, D.C., corporate law firm, followed by five years as a public defender lawyer, followed by two years with a civil trial law firm. Had I not been as devoted as I was, and remain, to reaching this current path, I would have been less likely to reach it. It is too simplistic and insufficient for me to say — as I have heard some other colleagues say — that I have paid my dues and that I justify my fees as getting my dues repaid. Instead, I recognize that I am most powerful and effective for my clients when I am focused on battling for them, rather than being concerned about how I will pay my bills; find time to sleep, eat and exercise right; and find time to spend with my wonderful family.