I always thought the white collar guys were a more gentlemanly cast of lawyers. They certainly look the part: Expensive suits, fancy shoes, and brief cases that all but announce: "Power, power, power." Most of my legal career has been spent in the tweedy trenches defending more obvious crimes, such as murder, rape and narcotics offenses. Hell, I used to consider bank robbery a white collar crime.
But I've been defending folks accused of white collar crimes increasingly in recent years. I even bought a couple of new suits and a new pair of shoes not long ago. And I've learned, to my surprise, that the lawyers aren't more gentlemanly at the white collar bar. Indeed, I've come to expect they are less so.
In the past month I've been approached by a people in a great deal of trouble with the United States Government. The clients are looking down the barrel of mail fraud, wire fraud and false statement charges. These aren't the eye-popping sorts of offenses that typically make headlines. Rarely does DNA evidence matter in such case; and almost always there are no guns. But the clients are every bit as terrified as those facing other criminal charges. Laws that are written in so broad and vague a manner as to make almost everything a crime transform confident leaders into cowering defendants.
The other day, I sat with someone discussing their situation. The matter of a fee arose. I quoted a fee sufficient to do the work. The client was impassive, and then recited the fees proposed by some of the brand-name players in the white collar bar. To my relief, I was competitive.
I was curious in both cases about how the clients had gone about finding a lawyer. Why had they come to see me? They mentioned other lawyers who sent them to me. I made a silent note to thank the referring lawyers next time I saw them.
And how did you come to see the other lawyers?, I asked. Their answers surprised me: These lawyers had called the clients directly to offer their services. In another case, a lawyer had sent promotional material to a business partner of a potential client. Wow, I thought, the well-heeled really do live different lives. The murder bar has far more class.
The ethics of lawyering recognize that clients are vulnerable people. Needing a lawyer is almost never a good thing. The relationship between lawyer and client should be one of trust and respect. Because the client places his or her liberty in the hands of a criminal defense lawyer, the lawyer's hands should be as clean as possible. The law frowns on lawyers who use runners who drum up business; it also frowns on soliciting clients by making cold calls. Yet, I am told, the practice of soliciting work in such a manner is routine. I was stunned to learn this.
I know the economy is tough just now. Everyone is having a hard time paying their bills. Still, folks keep getting arrested and are in need of counsel. It is understandable that lawyers will compete for a fee. But when the leaders of the white collar bar start diving for dollars, something is wrong. When it comes to lawyering, my sense has always been that good lawyers wait for their phone to ring; you simply do not initiate contact with a prospective client, ever. If that means you don't get invited to some dances, so be it. Better to sit watching than be accused of being a gate-crasher at a wake.
UPDATE: Sentencing Has Been Postponed Until November 5
Mickey Sherman heads to court today. There is nothing unusual about that. He is one of Connecticut's best known criminal defense lawyers. But when he goes to court today, he will going to face his own sentencing. I'm betting on a jail sentence for Sherman.
Sherman plead guilty earlier this year to two misdemeanor counts of failure to pay federal taxes. It seems that Mr. Sherman did not pay federal taxes in 2001 and 2002, despite earning more than a million dollars in income during that period. The 63-year-old Greenwich lawyer played footsie with the federal government about payment of these taxes, at one point persuading the government to remove a tax lien from his home, and then trying to shield the home from further liens by transferring title to another entity. The government was not amused. Sherman has now paid almost all of the amount owed for 2001 and 2002.
Today's sentencing is scheduled to take place in the courtroom of United States District Judge Janet Hall. She is a tough, but fair-minded jurist. Sherman's recommended sentence under the federal sentencing guidelines is low enough for her to consider giving him a walk, but I predict a trip a federal prison farm for Sherman. It is not simply that he fell behind on his taxes; when the government conveyed a willingess to work with him to play catch-up, Sherman jerked it around. He reportedly owes another $700,000 in back taxes for the period 2004 to 2008, together with nearly $150.000 more in penalties and interest. Taxes may be a form of governmental theft, but it is a form of thievery to which we all must submit.
This will not spell the end of Sherman's legal career, although he may well be suspended for a year or so. Any lawyer convicted of a crime faces a mandatory presentment to the state Superior Court for discipline. It is unlikely that Sherman will get a pass. But he will be back at the bar in no time, and for good reason. He still needs to pay a bundle of taxes to the feds. He can't make the kind of money he needs to earn doing freebies on the television talk shows.
Just how Sherman's legal difficulties effect the case of State v. Marash Gojcaj is an open question. Sherman represents Gojcaj in Danbury, about 45-minutes away from Bridgeport, where Sherman will be sentenced. As of last Friday, a juru of 12 and one alternate had been selected in this case. Jury selection for the remaining alternates will resume on Tuesday. Gojcaj faces trial for the crime of murder in a case attracting considerable attention in the greater New York region.
A lawyer convicted of a crime presents a special challenge to a trial court trying to assure that a defendant gets a fair trial. Today's sentencing of Sherman will be statewide news. Has the Gojcaj jury been questioned about what impact, if any, Sherman's tax plea will have on their consideration of the state's case? Will the jurors have to be questioned if Sherman is sentenced to a year or so in prison?
Years ago, in a celebrated Connecticut case, a Waterbury lawyer stood convicted of murdering his wife. While his case was on appeal, the lawyer kept working, and tried a criminal case for a defendant. Our Supreme Court held in that case that given the notoriety of the crime, the high-profile of the lawyer and the sensitivity of the case the lawyer was trying, prejudice was presumed. The defendant, who was convicted by the way, got a new trial. Although Sherman's case is not perfectly analogous, Mr. Gojcaj does have a chip in his pocket as trial begins that most defendants do not possess: If convicted, he can claim his high-flying lawyer's sentencing on the eve of his own trial both distracted Sherman and potentially poisoned the jury.
I am, frankly, suprised the trial court in the Gojcaj case decided to press on with jury selection before Sherman was sentenced. It seems like an unnecessary risk.
In any case, whatever happens today in Bridgeport, Sherman won't see the inside of a prison cell any time soon. It typically takes about 60 to 90 days for the Bureau of Prison to find a bed for a defendant. Sherman will be headed home, and back to court tomorrow. I'm no fan of Mickey's, but I wish him good luck today. Prison rarely does anyone any good.