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Yes, Virginia, There is a Difference Among Lawyers

It is a mistake for those whose liberty is at risk to assume that all lawyers are the same, can provide the same quality of assistance, have the same scholarship undergirding their work, and are similarly motivated to protect people from an increasingly rapacious, pernicious, and insensitive government.

The redoubtable Justice Gardner once penned sage insight regarding some people's distrust of the public defender over less-than-mediocre private lawyers, and those insights similarly apply to the comparative strengths of private attorneys, that is that judges can “only ... watch in silent horror as the defendant's family, having hocked the family jewels, hire a lawyer for him, sometimes a marginal misfit who is allowed to represent him only because of some ghastly mistake on the part of the Bar Examiners….”

Fighting things competently, aggressively, and effectively, I will generally not speak first about what I need when there is a group of lawyers meeting with the judge and prosecutors in chambers, because I don't want others to ride on my coattails about what I demand. So, the other day, I was in chambers, watching a gaggle of lawyers lined up in front of the judge like supplicants at the altar of Rehnquist-mania, milquetoastingly pleading with the judge to give their clients 6 or 10 days jail as a condition of probation for first time drunk diving. The Legislature does not require any custody at all for those given probation for first time drunk driving, and these clowns had taken thousands of dollars to beg for 6-10 days, which defendants could get themselves if they represented themselves at arraignment!

But the attorneys went into chambers to con their clients into believing they had accomplished something for them to justify their fees.

At the end of that disgraceful spectacle, when I was alone with only a DA in chambers with the judge, I inquired “what the hell did I just see?” The judge smiled and said “Mike, it's not up to me to tell lawyers how to represent their clients.” It was shameful and disgraceful, and that sort of stuff explains why people have little respect for lawyers.

So, if you or a loved one is in trouble, don't presume that everyone with a Bar card and business cards will supply the same service. Make sure the person you are hiring is not “a marginal misfit who is allowed to represent him only because of some ghastly mistake on the part of the Bar Examiners.” Does your lawyer merely attend seminars, or is he invited to lecture at seminars as I am; does he merely belong to the State Bar, or is he invited to lecture at the State Bar as I am; does he spend his free time playing golf, or does he spend it studying and reading law as I do; does he look forward to retirement, or is he committed to practicing his liberty-protecting craft until the Constitution is restored such as I am; does he consider the practice of law merely a remunerative job, or is it to him/her a calling and mission, as it is to me; does he use canned and stock pleadings prepared by others, or does he research and write everything he presents to courts, as I do?

Attorneys are not fungible.

Don't get suckered by fancy clothes and flashy cars and opulent offices; they are often a preface to shoddy legal work and shaky commitments. I have seen fancy, expensive lawyers advise their clients that certain things cannot be won, cannot be made better, and cannot be accomplished, while standing in unrealized earshot of me after I have obtained evidence suppressions and/or dismissals on the same sorts of matters. I have accordingly been employed to testify in hearings about what the reasonably competent attorney should have accomplished in matters where they sold their clients down the river, because I am recognized to know whereof I speak on attorney competence.

Some lawyers would rather be chums with judges and prosecutors than to stand with their clients against the gusts of faction that are trying to blow them over the edge and into the abyss. Some lawyers have the attitude [which they will occasionally confess to other lawyers and judges] that they will interact with the client only on one case, whereas they will be dealing with prosecutors and judges over and over and over again, so they need to keep the latter groups happy at the expense of the former.

The legal profession touts itself as being a learned profession, but learnedness is a diminishing commodity where caprice dethrones the Constitution all too regularly. I was assailed by a judge just the other day who scolded me about giving a post-hearing argument in writing, mainly because it would require the judge to read and study, and it would embarrass his government lawyer chum into being less able to carry their burden. I shrink not from judicial scoldings, because my duty is to my client, and I abhor bullies, whether sporting badges or robes.

Many lawyers will take your money but will then put pressure on you to back down from the fight that the Constitution and Framers enable and expect you to make. Lawyers like me, a dwindling breed, put pressure on government to back down, because, unchecked, government will consume the whole and eviscerate liberty.

We sometimes forget that criminal defense, especially these days, is war, with the remorseless Hun at the gate. So, you can choose the Neville Chamberlain approach, or the Winston Churchill approach, as the contest nears.

If you or a loved one is in trouble, don't be so naïve as to believe that all lawyers are the same in their zeal and effectiveness to protect your liberty interests. And that means that once you have decided on the lawyer you want, don't dial another one merely because you have not received a phone call back from the one of your choice as quickly as you would like. The Revolution was not won in a day; be patient in waiting for help from one of the few who lives and breathes the spirit of that Revolution as part of his very being.

Michael Kennedy

Admitted to Bar, State of California, 1981 Education: Widener University, Chester, Pennsylvania (B.A., 1970) Southwestern University School of Law, Los Angeles, California (J.D., Scale, 1981) Harvard Law School, Program of Instruction for Lawyers, Cambridge, 1987


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