Question

Blumberg refers to the practice of justice as a confidence game because the prosecutor and the defense attorney conspire to appear as something they are not – adversaries in a do-or-die situation. Do you agree with Blumberg? Why or why not? Discuss your position.

Answer 1

Yes I agree with him.

Abraham S. Blumberg’s major thesis is that criminal-defense lawyers are turned from their duties to the client by the system to get their clients to plead guilty. This is a fair characterization overall, but not universally. Most criminal-defense lawyers put the client first—before personal and professional relationships and “clients”—to some extent.

Those at the “lesser” end of that spectrum are clearly derelict in their duties; those at the “greater” end are paragons of Sixth Amendment virtue.1 Most criminal-defense lawyers are neither derelict nor paragons, but somewhere in between. There are few who could not do a better job of subjugating all else to the client’s interests.

So how can the defendant, desperate to get out of trouble, find a lawyer who will do the best possible job of putting the client’s interests first?

Blumberg calls the practice of law a “confidence game.” There is a difference between a confidence game and a run-of-the-mill swindle. In a confidence game, the mark is led to believe that he is doing something shady. Most bad lawyer advertising is a run-of-the-mill swindle; “we’ll bribe the judge” would be a confidence game. “I am a former prosecutor,” with its hint that the relationships formed as a prosecutor might be used to give the accused some advantage, is a confidence game.

So the best piece of advice for the client who wants not to be the victim of a criminal-defense confidence game is not to expect anything shady. The lawyer who intimates that his relationship with the prosecutor will get a better result should, like the lawyer who intimates that he can bribe the judge, be avoided at all costs. As I’ve noted before, when the lawyer’s long-term relationship with the prosecutor is placed in tension with her short-term relationship with the client, it is not the former that will suffer. Blumberg describes the inherent conflict between the interests of the client and the interests of the lawyer:

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