Recession and the Criminal Law Practice

The first question always posed to me seconds after learning that I am a criminal defence lawyer is “How can you defend those people?” or some variation of that classic accusatory inquiry. Recently however, this query is finding tight competition at the edges of inquiring lips with the question, “How’s the recession treating your criminal law practice, Ed?”

The answer to the first question, while nuanced and important, is one I would hope readers of a mature legal blog such as this one, would already know and respect. The answer to the second question is somewhat more difficult to articulate though it is of fundamental importance to those of us who make a living plying our trade in this nation’s criminal courtrooms (or those who someday aspire to do the same). The assumption that seems to underlie the question by most who have posed it to me is that recessions are in fact a boon to the criminal lawyer. After all, tough economic times are surely a breeding ground for thieves and fraudsters while even the most honest person might run afoul of downloading some child porn given enough hours surfing the internet for a new job after being fired. There is a certain simple logic to the suggestion that as the economy tanks, the ranks of criminals swells but I would caution all my Bay Street M&A brethren not to willingly abandon their corner offices in search of a shingle down the street from the local provincial courthouse just yet.

Anecdotally, I can tell you that business (at least at my firm) appears to continue unabated. We have neither noted an upsurge nor downtick in new client retainers. In this economy, just maintaining one’s existing business stream would likely be seen by many lawyers to be a boon. However, it is important for the criminal law practitioner not to presume that she works in one of the world’s only recession-proof industries. To properly understand my cautious concern, one needs to examine how it is that we defence lawyers get paid.

While it may seem trite to say, it is often forgotten that an increase in the crime rate does not alone enrich the coffers of your local criminal lawyer. Before a criminal lawyer rushes off to buy that new boat for the cottage (and name it Recession), he needs to be sure that the criminal clients he’s attracting are that rarest of breed – an individual facing criminal charges who can actually afford to pay professional legal fees. In a world where job security is scarcer than pleasure yachts day-cruising off the coast of Somalia, finding a fraudster who had the good sense to save some coin for his lawyer can prove difficult to say the least. While the ranks of those who drink and drive may be swelling in the current recession, many of those new alcoholics are drinking to temporarily dull the shame of having lost their jobs. Not exactly the ideal candidate to come waltzing into your office with a fat retainer cheque.

“But wait!” you cry. “Surely Legal Aid will pick up the scores of recession-induced criminals?” As anyone with any experience billing out a legal aid file knows, providing legal services for a rate that my apprentice plumber would politely decline is a tough way to build a practice at the best of times. In an era where the future of government largesse seems greatly in doubt, I for one will not be staking my RRSP on a steady flow of legal aid dollars to those newly seeking legal representation. Legal Aid Ontario (this being the body that I, as a Toronto lawyer, have the most familiarity with) has been teetering on and off near the brink of collapse for years now. Should the recession put a statistically significant increased strain on its coffers in the coming months, don’t expect the necessary influx of government money to come flowing in.

So, if you ask me again “How’s the recession treating your criminal law practice, Ed?” My answer would be “So far so good. But my accountant still wishes I was a bankruptcy lawyer…or better yet, an orthodontist.”

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