For those that are unfamiliar, lawyers are required to devote some amount of their time to working pro bono, that is, for free. Most firms have either requirements, suggestions, or incentives to encourage their attorneys to work on pro bono projects. Some even employ a few pro bono attorneys full time. Most of this pro bono work, it seems, is focused on civil matters. And while the need for legal services in civil law far outstrips the availability and affordability of lawyers, I found the lack of pro bono time dedicated to criminal law intriguing. It is no secret that the quality and quantity of defense lawyers is a problem. Nevertheless, at an individual level lawyers seem more ready to take on civil work than criminal.
There are plenty of reasons this might be the case. First off, civil lawyers are likely more comfortable dealing with civil practice. The rules are more familiar, as are some of the issues. However, the variation in practice areas in civil law is vast. A patent attorney likely knows very little about how to draft a will, how to handle a divorce proceeding, or what constitutes a violation of civil rights based on his daily practice. Second, civil lawsuits are not creatures that often require undivided attention. They can be put on the backburner, and court backlog means that many issues, if they have a hearing at all, will not have one any time soon after they are filed. This fits in well with a busy private practice, where an attorney cannot simply drop everything and be out for trial for two weeks, or running around interviewing witnesses. However, there is another, more human element that I think plays a role.
Law is a service industry. Without the people, there would be nothing for us to fight about. Lawyers are professionally loyal to their clients, but the reality is that lawyers become invested in the success or failure of the client’s claim. Furthermore, lawyers immerse themselves in the most intimate and most minute details of their client’s lives, at least to the extent that those details may bear on the case at issue. When the client is a person, and not a corporation, those details can be quite revealing; they give the lawyer a glimpse into the client’s life. Some glimpses are funny; others are sad. Some are downright infuriating. But none are invisible, and most are not readily forgettable. A good lawyer invests a little bit of himself in the client, and in doing so is able to advocate more strongly. In turn, the lawyer internalizes a little bit of the victory or defeat.
In the big civil litigation world (where there is a lot of money to be made), people are mostly just fighting over who gets money from who. While there are some real sob stories, and sometimes a great deal of money at stake, the issues mostly boil down to who is going to have to write a check and who gets to cash one.
Criminal law does not boil down to money. Criminal proceedings boil down
to decisions on punishment, confinement, and deprivation of freedom. They have a permanent quality to them that an adverse civil judgment does not. Furthermore, victims and criminals that might be the subject of a suit where free counsel is needed are not likely to be from the segments of society that most civil lawyers inhabit. Their lives and stories are often sad, violent, and disturbing. Every element of an accused’s life is fodder for the sentencing phase, and consequently a good attorney must delve into what are dark, scary corners of the worst of personal lives. It requires travelling far outside a typical attorney’s comfort zone. Finally, there is the fact that many (I would venture to say a vast majority) of the accused are not innocent in our standard moral usage of the word, even though they may not be legally guilty of the crime charged, or “not as guilty” as the prosecution would have it. Criminal defense requires that you defend an accused, no matter how guilty he may be, or what other horrible things he may have done or may do in the future. And, like in civil work, a good attorney must invest in the success or failure of his client.
Talking to civil lawyers about criminal work has led me to believe that these emotional factors play a larger role than we give them credit for in the decisions by some of the most competent attorneys to avoid what has become a sort of legal underworld. Clients are human, and so are the attorneys. It is difficult not to internalize the experiences of the client to some extent, and when those experiences are nothing short of horrific there is an understandable aversion to them. Furthermore, the stakes are morally higher. If an attorney loses a civil suit, the client may have to start over financially, or may have a setback. The client might lose a house, or even custody of a child. Losing a criminal case, especially a felony case, raises those stakes. The client might be confined to a prison cell for some of all of his life. Even if he avoids prison, he may never find gainful employment because of a felon label. In the most extreme cases, he may die. The responsibility for those consequences is shared to some extent by the attorney, and that is a hard pill to swallow. And while I don’t mean to equate the experience of the convict with the experience of his attorney, I think most attorneys internalize some of that suffering, or at least feel responsible for it.
The most common answer I receive for why an attorney does not practice criminal law is that “I just couldn’t do it. It’s too sad.” There is a common sentiment that there are no real winners—the victims are still victims. They have already lost. And while a prosecutor might “win” by putting away a truly horrible, remorseless degenerate, the reality is that most criminals are not purely evil. A tangled mass of unfortunate circumstances and bad decisions, many of which never appear in the record, result in criminal behavior. I am not saying that excuses it. Putting them behind bars might be the best thing to do, but it often does not feel to anyone like it was a truly good thing. The opportunity to really solve the problem is long past by the time an arrest and indictment have occurred. The loss-loss prospect of most criminal situations counsels a self-preserving attorney with any sort of conscience away from the morass that is a criminal proceeding.
Simply put, for as inhuman, insensitive, and blood-suckingly soulless as we view lawyers to be, empathy may be precisely what makes them averse to working where they might do the most good.