This is a general question although it references a fictional character.
In the TV Show “Better Call Saul”, the character Kim Wexler does some pro bono work as a public defender, even though her day job is as a litigation lawyer in a commercial law firm. This seems incredible to me because the roles are so different that I can’t see how she could possibly be competent to advise and represent people in criminal cases.
In a US context, is this realistic?
They are definitely two different beasts, but there is no reason why one person cannot learn both.
The issue with criminal defense is that most jurisdictions are in triage mode. They pay indigent defense counsel so poorly that they are desperate for anyone with a law degree to step in. That’s not to say that public defenders are poor representatives. Many of them will work tirelessly for you.
Doing some criminal cases pro bono (if you’re a litigator) probably isn’t a problem. When I was a public defender we had a professor (not criminal law) at the local law school join us for some pro bono work for awhile. We called him “Rusty,” but he did a fine job and had more time and energy for his clients than most of us with crushing case loads.
The trial stuff would be similar to other trials, (picking a jury, putting on witnesses, cross examination, getting evidence admitted, jury instructions) but the body of law for things like suppression motions would all have to be learned. Negotiating plea deals would be something you’d need some help with too. Like the OP mentioned, how to you advise a client when you’re not experienced on how these cases play out?
If you’re not a litigator with actual courtroom experience, (and had never been one) I think you’d probably be in over your head.
Short answer to this question. Yes, it actually happens. Probably with widely varying results.
A. Privileges and limitations.
The Commission shall not implement policies that alter the following privileges and responsibilities of certified specialists and other lawyers.i. Scope of practice.
No standard shall be approved which shall in any way limit the right of a certified specialist to practice in all fields of law. A lawyer, alone or in association with any other lawyer, shall have the right to practice in all fields of law in which the lawyer can competently do so, even though the lawyer is certified as a specialist in a particular field of law.ii. Practice of non-specialist.
No lawyer shall be required to be certified as a specialist in order to practice in the field of law covered by that specialty. A lawyer, alone or in association with any other lawyer, shall have the right to practice in any field of law in which the lawyer can competently do so, even though the lawyer is not certified as a specialist in that field.
Kim Wexler actually spent a considerable amount of time observing procedure in the criminal court in question before being pressed into service, and is clearly a competent lawyer who would have taken Introductory Criminal Law and Basic Constitutional Law and likely excelled at it, so she has the fundamental basis to practice criminal law. From a legal standpoint, criminal defense practice is not actually all that complicated compared to contract law or IP insofar that all charges brought by a prosecutor will be statutory with explicitly-defined criteria and criminal procedure is relatively straightforward.
Legal defense is primarily based upon a two pronged approach of finding and presenting exculpatory evidence or testimony, or disputing the admissibility of evidence or testimony with the goal of establishing reasonable doubt or convincing a prosecutor to agree to a plea agreement favorable to the client. All of what you see on television and film about finding special loophole in the statutes or charges being “dismissed on a technicality” because of some procedural issue are mostly nonsense; when someone “gets off on a technicality” it is usually because an arresting officer or investigator made a serious mistake that compromised the chain of evidence or made a fundamental violation of the suspect’s Fourth Amendment rights.
Despite memorable moments in legal history such as “The glove don’t fit!”, the majority of criminal prosecutions have an essentially foregone outcome because absent of other influences no competent prosecutor is going to bring forward a case that they don’t think has sufficient evidence to convince a jury. The role of the defense attorney in such cases is not to secure a not guilty verdict but rather to shepherd the client through the legal process of interviews and hearings, minimizing their legal exposure and negotiate the best possible plea agreement. In Wexler’s case, it appears that most of her clients are indigent and poorly educated, and most of her effort is actually just getting them to be presentable in court and marginally informed about how to behave toward the judge rather than any complex legal wrangling.
Most of the big law firms offer pro bono support (looks good for the firm, and expected for associates hoping to make the short-list for partner) so ‘corporate’ lawyers (an expansive term for a wide variety of practice) often practice criminal law ‘on the side’ for some period of their career; this is primarily reviewing or drafting appeals and other legal challenges rather than primary legal defense in a courtroom setting but again these are things any competent lawyer should be able to pick up.
Stranger
Indeed. One of the earlier episodes of Better Call Saul illustrated this pretty well with Jimmy following the prosecutor around and they would bark offers at each other.
Another good thing for a rookie to do is to pick up the phone and call other experienced attorneys. Many will help. It is also good to know what the “real” penalties are for crimes instead of the statutory ones. For example, in my state, first offense DUI is potentially punishable by six months in jail. I have yet to hear of a single person get anything close to that for his or her first offense. I have never heard of anyone getting more than five days for a first offense.
Typically, if the DUI wasn’t too flagrant, you can talk a prosecutor down to reckless driving or some such thing. You can have the case dismissed after alcohol counseling. You get to know individual prosecutors and what can push their buttons to side with your client.
Being a criminal defense attorney is more like being a used car salesman than a lawyer. Trials are exceedingly rare and arguable issues come up a little less rare. When trials come around you are finally like “Yes, I get to be a lawyer now!”
Which I sorta presume is the reason that the profession split in Commonwealth nations to have separate lawyers who argue cases in court (barristers) compared to the majority who deal with the everyday stuff (solicitors).
When I was a young associate at a large law firm, there were a few partners I worked for who took pro bono indigent felony cases from the local federal courts (they were part of the CJA panel). I worked on a few of those cases.
A federal felony? (Even like a felon-in-possession, and especially something like fraud). They weren’t really all that different than our civil cases (and especially not our “government investigations” /“white collar” cases). We had some advantages (limitless resources) and some disadvantages (lack of subject matter expertise), but I think our clients were well-served.
But we certainly couldn’t have worked part-time in a public defenders office; different beast.
I am in a similar situation to Kim Wrexler in that I have a commercial law practice, but undertake criminal and family law practice as pro bono, though,Though unlike Kimmie, I did serve (briefly) as a prosecutor.
The answer is absolutely. Almost all lawyers will be able to understand criminal law and procedure since that is required in law school, as a basic course…unlike saw Commerical/corporate law which is at best an optional topic.
Kim’s practice seems to be advising companies (or ONE company in her case) and that tends to give you a good grounding in many diverse areas of law. To take an example, one of the Companys I represent. One day they may be a labour law case, they have a dispute with a union, which is now in Court. Next day, contractual dispute. Later that day, a Tax notice. A Tx notice based on some property they just rented out, so land law, rent and possibly Zoning issues. Another day a vendor defrauded them and ran off, so now they want a criminal case so complaint to the prosecutor is filed. A few weeks later, the Prosecutor declines to press charges saying its a civil dispute, and you challenge that in Court, well we have Admin law, Criminal law and a bit of Constitutional law mixed in.
Point being Ms Wrexler will have a lot of experience working in different areas of law.
Thanks everyone, I find these answers very illuminating.
I can’t help but wonder if it’s different in the US than in Ireland. We have two kinds of lawyers here (solicitors and barristers) and I don’t think solicitors are allowed to represent defendants in court.
In my company (not a legal firm, a utility company) we have lawyers with various roles. There are contract lawyers, litigation lawyers, property lawyers, people in corporate affairs who look after competition law, regulatory compliance or whatever. I find it hard to imagine that the (extremely competent) contract lawyer I work with would be able to turn his hand to representing criminal defendants but I could be wrong. I should ask him next time.
I’ve been in court (here). Most people aren’t represented in the lower court, and when they are represented their lawyer (my lawyer) doesn’t have much to say. I don’t think that a random contract lawyer would be any good as a barrister in a serious case, but 90% of the work is just interviewing the client, and keeping the client quiet in court, and 9 times out of 10 the actual court work is a single sentence/paragraph addressed to the judge.
If your contracts lawyer did 3 months in a general solicitors office before getting a full licence and moving into a contracts office, then they probably remember enough to tell you how to plead, when to stand and when to sit and when to keep your mouth shut.