Abraham Lincoln often gets credit for the line, but in 1814 clergyman Henry Kett’s collection of proverbs in The Flowers of Wit included, “I hesitate not to pronounce that every man who is his own lawyer has a fool for client.”
More than two centuries later, it’s still true. But don’t tell Stephen DiCarmine, former executive director of the now-defunct Dewey & LeBoeuf. He doesn’t believe it. Recently, he appeared before Acting Justice Robert Stolz and explained that he wants to fire his attorney and represent himself.
Last year, three weeks of deliberation following a three-month trial produced a defense verdict on some counts and a deadlocked jury on the remaining charges against DiCarmine, former firm chairman Steven Davis, and former chief financial officer Joel Sanders. Davis then entered into a deferred prosecution agreement and Justice Stolz dismissed additional counts. Retrial on the remaining charges against DiCarmine and Sanders is set for September.
“The consequences are very severe in this case,” Justice Stolz told DiCarmine. “You could go to state prison if convicted.”
DiCarmine thinks he knows better. A graduate of California Western School of Law in 1983, he told the judge that he had discussed the issue with several lawyer friends. Their reactions: “Bad idea.”
But DiCarmine heard what he wanted to hear. At least, that’s what he told the judge: “They said if anyone can do it, you can do it.”
The truth is that when incarceration is a potential outcome, no one can do it. And no one should try. Gideon v. Wainwright’s guarantee of a right to counsel in criminal cases exists for a reason. And it doesn’t matter if the defendant is a lawyer.
Justice Stolz warned DiCarmine that he might think he knows what the case is all about because he’s been through it once. “But I assure you,” he urged, “it will be a different jury. It will be a different presentation from the People.”
An Unfortunate Moment
DiCarmine’s current lawyer, Austin Campriello, did a masterful job at the first trial. For good reason, he’s among the most highly respected criminal defense lawyers in New York. Campriello told the court that although his client’s finances were a factor, the motivating reason for DiCarmine’s request related to defense strategy.
DiCarmine then offered an unfortunate comment that unfairly tarred other big firms.
“I’ve run a law firm,” DiCarmine said. “When the client is not paying the bill, the services that are being rendered are not necessarily the same as if he were being paid.”
Nonsense. He displayed a remarkable ignorance of what the lawyers in his firm were actually doing while he was “running” it. Directly, he insulted all former Dewey & LeBoeuf attorneys who worked on pro bono matters. Indirectly, he put a cloud over the noble efforts of big firm lawyers who provide millions of dollars in free legal services to clients every year. Implicit in his remarks are widespread violations of ethical rules to advocate on behalf of all clients with the same seal. Those rules apply to all lawyers.
Justice Stolz properly put DiCarmine in his place, saying that Campriello would work to the best of his professional capacity, regardless of DiCarmine’s financial situation. He also told DiCarmine to think long and hard about his pro se request before the next hearing on May 27.
DiCarmine seeks to jettison a great lawyer for someone who, apparently, has been in a courtroom only as a witness or a defendant — that is, himself. It reminds me of the joke that one of my mentors told about the importance of using experienced trial lawyers in important cases.
“A patient goes to a doctor with a serious medical condition for which there is an elaborate surgical cure,” the joke begins. “The doctor describes in great detail how the procedure will go — start to finish. The patient is impressed, but has one more question: ‘How many of these operations have you performed?’ the patient asks. ‘Oh, none,’ says the doctor, ‘But I’ve watch a lot of them.'”
Revise the scenario slightly so that the doctor has observed the procedure only once — and is going to perform it on himself. Now you have a sense of DiCarmine’s plan.