How Would You Feel About Switching Sides of the Advocacy Aisle?

Question of the Week

How Would You Feel About Switching Sides of the Advocacy Aisle?

Posted Nov 8, 2007, 11:05 am CDT
By Reginald Davis

This week ABAJournal.com noted that Sandra Day O’Connor—among other things—recommends that prosecutors and public defenders be dumped in the same office and advocate for the government or the defendant depending on the case.

So we wondered...

How would you feel about switching roles—from public defender to prosecutor, defense to plaintiff, etc?

What's the positive and negative if such musical legal advocacy chairs become routine?

Answer in the comments section below.

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Posted by Nancy - 9 months, 4 weeks, 11 hours, 49 minutes ago

I have very mixed feelings about this.
While I think it’s important for prosecutors and defenders to understand the other side’s role, making them interchangeable stikes me as seeing lawyers as fungible.
Plus it seems that people’s temperaments lead them towards different kinds of practice - civil versus criminal, prosecution versus defense, litigation versus transactional.
But I do not practice criminal law, so I am interested to see what those who do have to say.
Posted by Paul R. Thomson, Jr. - 9 months, 4 weeks, 9 hours, 23 minutes ago

I have had the good fortune to have spent considerable time both as a criminal defense lawyer and a federal prosecutor. As lawyers we seek justice. Neither side has a monopoly on that virtue. Too much time on one side or the other I beleive is unhealth for the individual and the system. I applaud the idea.
Posted by William W. Newbill - 9 months, 4 weeks, 9 hours, 19 minutes ago

I’d like to see this done and often. The concern many of us continue to have about prosecutors is that some offices and some professionals, certainly a minority, seem all to willing to bend the rules in order to win. This deprieves defendants of the right to information they’re entitled to, etc.

Aside from the obvious fact that Americans lock up an absurdly high number of people compared to the actual civilized world, there are other ethical considerations.

We need more prosecutors who see their role as ‘doing justice,” not just winning. A good example of how things go horribly wrong is right here in the Dallas, Texas area. We’ve had a record number of DNA exonerations of so-called “rapists.” These are men who have spent years in prison and who were supposedly identified by eye witnesses. Of course, police misconduct during investigations can often start a chain of events that leads prosecutors to believe they have the right person.

How many innocent people are on death row or in prison for cimres they did not commit? We know from DNA exonerations that the answer is a lot of people, a very high percentage, perhaps as high as 20 - 30 percent. That’s unacceptable and it could be improved by getting prosecutors out of their narrow “win at all costs” mentality.

Thankfully, the new DA in Dallas, Mr. Watkins, a Democrat who actually cares about justice wants to do the right thing. Unfortunately, all to many prosecutors refuse to cooperate because they know the chances of being proven wrong would be bad publicity.

We should have mandatory DNA testing on all serious crimes with both sides getting the results before a trial is even scheduled. And yes, making prosecutors switch sides and gain some understanding of the horrors of the innocent who are in prison and wrongfully convicted might make them a more careful.
Posted by Robin Doyle - 9 months, 4 weeks, 8 hours, 59 minutes ago

As a former criminal defense attorney, I was often asked how I could represent someone I knew was “guilty.” Of course the answer has to do with the different roles of the participants in our system of adversary justice. If we believe in that system then counsel should be able to represent either side competently and well. Problems of implementation will be minor in the greater scheme of things. This is a good idea.
Posted by Jeffrey A. Schwartz - 9 months, 4 weeks, 8 hours, 50 minutes ago

This would lead to attorneys with no criminal defense experience representing criminals, a terrible idea and probably a Fifth Amendment violation. Wait, I forgot--that’s how forced pro bono works already.

Both ideas-idiotic.
Posted by Kathleen Bachus - 9 months, 4 weeks, 8 hours, 47 minutes ago

I think it is essential that anyone dealing with the possible locking up or putting to death of a human being be as well rounded as possible. The more anyone understands about the strengths and weaknesses of the case, the more likely justice will be done. Judges, especially, should have experience as both prosecutor and defense.
Posted by Jim Hennings - 9 months, 4 weeks, 8 hours, 37 minutes ago

Having done both prosecution and defense (although mostly defense) there is some merit in the idea to produce a more balanced view of doing justice. Of course the obnoxious attorneys will just be obnoxious for both sides. Most attorneys would benefit, but not if the system was a case at a time, but for an extended period of at least six months. Most of the work is not in court, but as part of an office doing justice.

The prime advantage could be to make clear that the pay for the attorneys should be equivalent rather than the wide disparity that now exists (Over 30% in the case of my defender office).
Posted by Kristin - 9 months, 4 weeks, 8 hours, 32 minutes ago

What a horrible idea. I’m a public defender and would never even remotely consider being a prosecutor. To be a prosecutor means to have the “enforcer” mentality. I do see that many of my clients are guilty, and often require some sort of “punishment” - but I would NEVER want to be the “enforcer.” Especially since “punishment” is often sitting in a crowded, dirty jail twiddling one’s thumbs, or spending time with the wrong crowd, so to speak. Our criminal justice system deals so little actual justice. And if prosecutors, and those with the prosectuor mentality, were required to defend people, I think there would be even less justice. If this were the way our system worked, I would never have become a lawyer. I would have just given up on our society. dramatic, but true…
Posted by Former JAG - 9 months, 4 weeks, 8 hours, 21 minutes ago

I think it would be unworkable to do this as suggested by the question, dumping prosecutors and defense counsel into one office. However, spending periods of time on opposite sides would, I think, have a number of benefits. I experienced this while a lawyer in the Marine Corps, where I spent a year as a defense counsel and two years as a prosecutor--a fairly common experience for military lawyers. Although bases generally have a single legal services department, the prosecutors and defense counsel are in separate offices (often on different floors) with separate chains of command. I felt that my experience as a defense counsel helped my objectivity in evaluating cases and my desire to be evenhanded in my approach when I switched to prosecution. I felt this enhanced the fairness of the system and I found that lawyers who had not spent time on the other side--whether they had spent all of their time as a prosecutor or a defense counsel--tended to be far less objective. And, in my opinion, made for less effective advocates.
Posted by Dan - 9 months, 4 weeks, 7 hours, 50 minutes ago

I’m a tranasctional lawyer, not a litigator. However, I believe this would “level the playing field” in criminal law. It would give defendants and the govt. an equal chance for competent representation, and it would make lawyers more even-handed, knowing that they might be chosen in any given case to represent either the govt. or a defendant. I understand that this is the English system.
Posted by Lori - 9 months, 4 weeks, 7 hours, 42 minutes ago

That is a great idea. . .as much as I dislike doing plaintiffs’ work . . it only makes me a better defense attorney.
Posted by John T. Barrett - 9 months, 4 weeks, 7 hours, 26 minutes ago

I am a criminal defense attorney and like the idea. I’m sure that part of my receptivity is that the prosecutors in my district are professionals and acting that way would certainly work. Some concerns: My independent nature could create problems, regardless of who Chief was. Don’t support death penalty, could not prosecute case seeking death penalty. Practicing in something of a college town, I see a lot of underage drinking and simple possession of marijuana cases. (Contrary to what appears to be the opinion of the general public and what I expect you know, making something against the law does not stop it.) I can easily envision myself handling case after case of that nature and finally dismissing them all on the condition that the defendants not get caught next time.
Posted by Stef - 9 months, 4 weeks, 6 hours, 14 minutes ago

As a criminal defense attorney, I find that the best prosecutors have experience doing our job. I also think that prosecutors should be required to spend some considerable time visiting the jails, as we do, to see the environment that they recommend for so many people.
Posted by L - 9 months, 4 weeks, 4 hours, 49 minutes ago

I think that this might discourage some qualified folks from even getting into the criminal law field. Personally, I have always felt that I could do prosecution work, but not defense (I don’t actually do either, by choice), because the possibility that I could help someone who was, in fact, guilty NOT be convicted is much too depressing for me. I could also see the possibility that others would feel that they would not be able to work prosecutions because they would be afraid of the possibility of helping wrongly convict an innocent party. People who felt strongly about one side or the other might just decide not to go into the criminal area at all if they weren’t allowed to choose sides.
Posted by skg - 9 months, 4 weeks, 4 hours, 4 minutes ago

Family law attorneys do this all the time. I have two cases, one where I represent the father and one where I represent the mother. In both cases, the mother has successfully sought to have provisions in temporary custody ageements limiting the father’s mother’s access to the children. Also in both cases, the mother has filed for protective orders against the father with some basis in fact but also possibly to gain an advantage in other aspects of the case. Fortunately these actions are in different counties, so I shouldn’t have to make opposite arguments on these issues to the same judge!
Posted by Elizabeth Unger Carlyle - 9 months, 4 weeks, 3 hours, 27 minutes ago

Having switched from criminal defense to criminal prosecution and back, I can report that this was a positive experience for me. I can now “think like a prosecutor” when I need to, and sometimes gain a bit of credibility with actual prosecutors when they become aware that I prosecuted for seven years. When I switched from defense to prosecution, I found that I was able to avoid discounting defendants, which I think made me more fair.
Posted by Gary Avery - 9 months, 4 weeks, 1 hour, 21 minutes ago

I studied under two of the best - Irv Younger and Howard Oleck - and both used a system in which, when you arrived for class with an assigned case, you never knew which side you would be expected to argue. Their point was that any good attorney prepares the other side in order to avoid surprise. Having prosecuted for 20 years, I think it’s a wonderful idea.
Posted by NAK - 9 months, 4 weeks, 21 minutes ago

I work in the area of IP litigation, and I do feel that it is very useful to sometimes represent patent holders and sometimes represent accused infringers. Some of our people are doing almost all defense work, and I fear that they will come to the conclusion that there is no such thing as a valid, infringed patent.
But at the same time, I can’t see dumping prosecutors and public defenders together willy nilly. When people’s lives and liberty are at stake, experience and professionalism are paramount.
Posted by Michael Bryan - 9 months, 3 weeks, 6 days, 23 hours, 45 minutes ago

The devil is in the details. There are obviously many ethical conflicts and straight-up inefficiencies in doing some sort of Yuletide lord of misrule flop between prosecutor and defense offices. It just wouldn’t work.

However, there is merit to the idea of perhaps assigning a single case to defenders to prosecute in association with an experienced prosecutor, and giving one case to defend to a prosecutor who is associated with an experienced defender. That would give both sides a perspective on the work of the other that could prove valuable to the attorneys involved, and result in better representation and a more collegial practice environment for all.
Posted by Michael Bryan - 9 months, 3 weeks, 6 days, 23 hours, 43 minutes ago

Oh, and of course, the clients would have to be fully advised and approve of the arrangement for their representation. That would provide a formidable barrier, as I really can’t see many clients willing to stake their life or freedom on such an arrangement, no matter how educational it might be. So, in the end, the real limiter would be the supply of willing clients, I think, not the supply of willing attorneys.
Posted by Robert J. Scott - 9 months, 3 weeks, 6 days, 9 hours, 4 minutes ago

I believe that in England, private barristers do represent both defendants and the crown. I am not sure of the financial arrangements; nor am sure of how possible conflicts within a firm are handled under English ethics rules.
Posted by Larry - 9 months, 3 weeks, 6 days, 6 hours, 26 minutes ago

I think the idea would be very confusing for the public. While lawyers are familiar with their ethical duties, many non-lawyers are not.

A member of the general public counts on a prosecutor to put criminals behind bars. That person may lose a little faith in the prosecutor’s dedication to this task if all of a sudden he sees him in a different role - that of trying to get an accused “off”.

Futhermore, an accused may be a little aprehensive having a lawyer defend him who just last month put his friend in prison for life.

I am also curious as to what sort of cases would prompt a lawyer to take one side as opposed to the other.
Posted by David Abella - 9 months, 3 weeks, 5 days, 6 hours, 27 minutes ago

As a first year law student I want to explore the world of opportunities that the legal profession presents. That being said I have recently felt turned off to criminal law because I perceive it to be a very polarized practice. As a student, I would love to have the opportunity to practice on both sides of the bench. However, as I have spoken with practicing Public Defenders or Assistant District Attorneys, I have been dismissed as being overly idealistic or simply naïve.

The response I get as I probe for information is “You are either with us or them.” And, although joining one side will not disqualify you from switching sides, it has been made clear to me that it would be frowned upon. I find this to be a very unfortunate message to be sending to law students. This reminds me of my days as an intern on Capitol Hill: Republicans vs. Democrats.

I’d like to see a criminal justice program that allowed (or even required) law students to spend one summer or semester interning in the District Attorney’s Office and another in the Public Defender’s Office; or a summer program that allowed a student to split their time in each office. I believe we would create more LEADERS (not just attorneys) with a better sense of what criminal justice entails.

After scrolling through comments on this discussion board it seems that many practitioners find this “unworkable” for them. To those, I would ask: What does our system stand to lose by thinking outside the box? I know that justice is a value shared by both prosecutors and defense attorneys. One should never compromise their values, but has to be willing to consider new ideas in an effort to improve the system that embodies their values. (dabella@berkeley.edu)
Posted by LER - 9 months, 3 weeks, 2 days, 2 hours, 14 minutes ago

In England, a barrister can argue for a criminal defendant for one triai and then represent the Crown Prosecution Service in another trial. I believe that it results in less zealous advocacy of criminal defendants because the barristers do not want to alienate the Crown Prosecution Service and possibly lose a major source of their income (Rumpole notwithstanding).
Posted by Nate - 9 months, 3 weeks, 12 hours, 2 minutes ago

As someone already said, the devil is in the details. I practice labor and employment defense and in my counseling work I routinely present the plaintiff’s or potential plaintiff’s arguments to my clients so there’s little chance I would become so myopic as to think the other side never has a good case. However, on balance, it would be a difficult change for me to make. The defense side is a natural philosophical fit for me, although I could make the switch if I had to.

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