The abolition of cash bail will have an effect on the private criminal defense bar.

I saw that the new district attorney in Philadelphia has listed abolishing cash bail as one of his goals. I have also seen other reports. How will this affect lawyers?

The question is a good one. Although there are many pros and cons for cash bail, it is all negative if it's abolished for the solo practitioner, the small firms or individual lawyers who have a substantial Pennsylvania state criminal practice. Anyone who is practicing law knows how difficult it is—particularly for solo practitioners and small firms—because of past economic crisis and because of the fact that many people don't have funds to retain lawyers anymore, at least in substantial amounts.

Although for those who don't practice criminal law it might not seem obvious, but for those who do practice criminal law, bail was often the way to preserve or protect attorney fees. The client would sign over their bail piece to the attorney, who then, at the end of the case, would collect the funds to pay for the agreed upon legal fee. That provided some financial security for the lawyer.

Having said that, does that create a conflict of interest between the criminal trial lawyer and the defendant? Is it doing business with a criminal defendant when one has to give the Rule of Professional Conduct 1.8(a) letter about doing business, seeking the advice of independent counsel, etc.? But, this practice has gone on for generations. Technically, one could argue it does create a conflict and might trigger Rule 1.8(a), but that's not how it's been handled for at least three generations of members of the bar that this writer has observed. The bottom line is, it provides a way for a lawyer to secure or protect his legal fee so he can be paid.

Also, the need to get someone out on bail often is the trigger to go out and hire private counsel. With changes in bail, that also could impact on whether people go out and hire attorneys. At least in Philadelphia County, if one doesn't have private counsel, they are appointed counsel. There are financial standards, but at least from the opinion of many private practitioners, the financial requirements are ignored in the breach. The availability of court-appointed counsel trumps the rigid enforcement of financial requirements. Sophisticated criminal defendants know to wait to see who is appointed or which public defender gets assigned their case before deciding whether to hire private counsel.

The bottom line is that the abolition of cash bail will have a significant effect on the private criminal defense bar. Whether that's a valid consideration when the issues of liberty, freedom and a fair system is an open question. But, at least for those who are considering abolishing cash bail, the effect on private practices should at least be considered and discussed.

A strong private criminal defense bar is a very important and needed part of the practice of law. The private criminal defense attorneys are often the experienced attorneys who make up and support a strong independent bar. These are the lawyers, both young and old, who are involved in the court system on a daily basis, and who have the trial skills, the independence, and the courage to take on cases and challenge and raise important constitutional issues. But, like everything else, lawyers need clients that have monies or the ability to pay legal fees.

When I started practicing criminal law in the early 1970s, there was a fairly strong criminal defense bar of about 300 to 400 lawyers. This was not a transient bar where at any given time there might be 100 to 200 lawyers who then after a year or two disappear and don't do criminal law anymore. These were lawyers whose primary practice was criminal law and they had practiced for a number of years.

Over the years, the private criminal bar has been diminished not only due to financial concerns, but also the increased use of public defenders and court-appointed counsel and, as noted, the failure to really enforce the financial standards. It is easier to appoint counsel and get a case done than to wait until someone hires counsel or represents themselves, even though the client has the financial ability to do so. This failure to force clients who are financially able has greatly hurt the private criminal bar.

As a result, in Philadelphia County, there is probably only between 30 to 40 lawyers who are in for the long haul of handling regular criminal defense cases. At any given time, there may be other lawyers, but these are young attorneys just handling cases in the short term until they find a better job or are hired by a firm, etc.

It's important to have a strong private criminal defense bar. The public defender's, particularly in Philadelphia County, are excellent. Some of these lawyers are the best criminal lawyers around. But, there is the need for independence and to be away from the government paycheck that, at times, is important for the independence of the bar and the strength of the legal profession. However good lawyers are in the public sector, there is a certain independence and courage to go out on one's own to make a living and that independence and courage translates into how case are handled and battles are fought.

Obviously, the practice of law is changing and changes are good at times. But, changes can have unintended consequences. At least everyone should have a clear understanding of the effect of abolishing cash bail on the legal profession. To lose or undermine what is left of the criminal defense bar would be a great tragedy for the legal profession.

A judge should not, once they become a judge, act in a partisan political fashion.

There's been many recent comments and discussion in articles about the judiciary and whether the judiciary is too political. What does that really mean and has the judiciary become too partisan?

The judiciary has to be fair and independent. One should not go and become a judge if there is an agenda. The agenda should only be that of being fair and just to the litigants, the laws and to the constitution. Obviously, that's a perfect world and people do get on the bench who have philosophical differences.

There's been a lot of discussion about Republicans and Democrats on the U.S. Supreme Court, particularly in the last two years when there was a delay in appointing one presidential appointment candidate and then an immediate appointment of a different party's presidential candidate after the election. The delay and then appointment was clearly political in nature and did some real damage to the public's perception of a fair and independent judiciary.

The age of politics and the judiciary was discussed in a very good book titled, “Justice Robert H. Jackson's Unpublished Opinion in Brown v. Board” by David M. O'Brien. The book was recently published and is an excellent book to read and recommended for any constitution lawyer and well-recommended for any state or federal judge.

The book contains an interesting discussion about politics and the judiciary since these were questions that bothered Justice Robert Jackson during his tenure on the U.S. Supreme Court from 1941 to his untimely death in 1954. The question raised was whether judges should make the law as opposed to enforcing the law, i.e. an activist judiciary or a passive judiciary. The book references on page 18, former Justice Felix Frankfurter's famous quote, “I used to say to my students that legislatures make law wholesale, judge's retail.”

The author noted Justice Frankfurter's statement that, “The issue is not whether Judges make law, but when, how and how much.” The author then noted even Justice Antonin Scalia, although noting he was a strong advocate of original intent or original textualism had to acknowledge as follows: “I am not so naïve (nor do I think our forebears were), as to be unaware that judges in a real sense make law. But, they make it as judges make it which is to say as though they were finding it … discerning what the law is, rather than decreeing what it is today changed to or what it will tomorrow be.”

The author then talked about Justice Robert Jackson and noted his concurring opinion in the case where the Supreme Court, in an opinion by Justice Hugo Black, blocked President Harry S. Truman from seizing the steel mills in the interest of national security.

Justice Jackson in his famous quote about original intent noted as follows: “Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, might be divined from material almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.”

Justice Jackson then referenced extensive scholarly research over almost 200 years with different interpretations and essentially canceling each other out. Justice Jackson found claims for strict constructionism or literalism to be misleading.

“In a pragmatic and prudential fashion, he emphasized that governing does not and cannot conform to judicial definitions of the power of any of its branches based on isolated causes or even single Articles torn from context. While the constitution defuses power the better to secure liberty, it also contemplates the practice will integrate the dispersed powers into a workable government.”

Justice Jackson, according to this excellent book, noted, “The court has a crucial political function in reconciling and competing constitution values.”

Justice Jackson is quoted as follows: “In a society in which rapid changes tend to upset all equilibrium, the court without exceeding its own limited powers, must strive to maintain the great systems of balances upon which our free government is based. Whether these balances and check are essential to liberty elsewhere in the world in beside the point; they are indispensable to the society we know.”

The author references that Justice Jackson noted the following, “Furthermore, he was especially frank about how thin is the line that separates law and politics. In the Godkin lectures as well as his unpublished opinion in Brown, he elaborated by quoting Justice Benjamin Cardozo about the differences between sitting on the New York Court of Appeals and on the U.S. Supreme Court. The New York Court of Appeals is a great common law court; its problems are lawyer's problems. But the Supreme Court is occupied chiefly with statutory construction—which no man can make interesting-and with politics. Justice Cardozo, according to Jackson, acknowledged that the court was a political institution, not in the sense of partisanship, but in the sense of policy-making.” The author noted that Justice Jackson acknowledged limitations of lawsuits and legal procedures for making public policy, “while at the same time embracing the inevitability of exercising such power in deciding constitutional controversies.”

In his Godkin lectures, Justice Jackson appeared to note constitutional law is “not at all a science, but applied politics.” This actually was a quote he liked from Justice Frankfurter. Then Justice Jackson noted the following: “Only those heedless of legal history can deny that in construing the constitution the Supreme Court from time to time makes new constitutional law or alters the law that has been made. And it is idle to say that this is merely the ordinary process of interpretation.”

Obviously, one should read this excellent book by O'Brien because it goes into far more detail and depth. But, the point is that politics has been given a bad name when it's applied to the judiciary. A judge should not, once they become a judge, act in a partisan political fashion. But, political thought is far broader than just am I a Republican or am I a Democrat or am I an Independent. That seems to be forgotten in the current debates about the Supreme Court and whether it is a partisan or political court.

The bottom line is politics in the proper setting, as noted by Justice Jackson and O'Brien in his excellent book, has a role in the judiciary and cannot be ignored. Once that view is accepted an understood by judges, the decisions will be more rational and understandable and also reflect the modern pragmatic needs of society.

Therefore, to answer the question, judges should not be partisan, but politics can and should be—at least in constitutional interpretations—a consideration in its broadest sense.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa. 19381.