A blow to a strong, independent criminal bar

See Photo:  Sam Spade (Humphrey Bogart), suspected of killing his partner, is confronted by police in John Huston’s iconic 1941 film noir, The Maltese Falcon.

About two decades ago, Philadelphia defense attorney Andrew Gay assumed the chair of the Criminal Justice Section of the Philadelphia Bar Association.   At his first meeting as chair. Mr. Gay spoke of the need for a strong, independent criminal bar.

That independent institution is mortally threatened as Philadelphia is moving to a new way of providing defense for indigent persons accused of crimes.

For decades, Philadelphia defendants too poor to afford lawyers have been represented by the Defender Association.  Where there is a conflict—more than one person is accused of participating in the same incident, or the Defender Association already represents the victim or witness in another case—-a private attorney is appointed to represent the accused.

Over the decades, there has developed a corps of private defense attorneys who accept court appointed cases at low fees.  A court appointed attorney who argues an appeal before the Superior Court is paid $50 for his time in court.  A law firm might bill a client five to 10 times that rate for similar representation.   

Private attorneys take appointments for many reasons.  Unless they are fortunate enough to be hired out of law school by the District Attorney or the Defender Association, court appointments are the way to get into criminal law.  Other reasons for taking court appointments include getting courtroom experience, building a practice, dedication to justice, and the challenge, fun and excitement of it all.

When a case ends with a bad result, the court appointed attorney is often blamed.  They are written off as bad lawyers, who take the cases because they can’t attract clients.   Frequently, these lawyers can’t recruit high-profile private clients, but they are still good in court.  Often the bad results are caused by inadequate funding for investigators and expert witnesses.

All this will change as the City of Philadelphia is moving to a “second defender system.”   Under this plan, a private law firm or nonprofit agency would handle the cases where the Defender Association has a conflict.  Presumably, private counsel could be appointed where three defense attorneys are needed for a case.  

The City of Philadelphia has proposed the change to save money.  The Philadelphia Bar Association has expressed positive interest, but has not yet endorsed the change, in the belief that the second defender system will follow nationally accepted standards, have adequate funding, better training, and better support services.

Every reform has it’s down side.   The second defender will weaken the private criminal bar in Philadelphia.   Traditionally, attorneys wishing to get started in criminal law worked in the District Attorney’s office, the Defender Association or took court appointments.  

With the second defender, one of the avenues to criminal law practice will be closed.  There will less work for the lawyers who now take court appointments and fewer opportunities for entry into the specialty.

Democracy and justice require lawyers to protect persons who are falsely accused.  Criminal defense lawyers uphold standards of justice for everyone.

In 1941, when Sam Spade needed legal advice, he had Sid Wise to keep him out of trouble.   In 2041, will there be a Sid Wise if you are suspected of a crime you did not commit?