I have been thinking about Orange County and the growth of my practice, including what I think is the road to success and how it can be achieved
In the beginning, it was rough, but if one is lucky enough to be in the right place at the right time and is able to capitalize on the circumstances, one can do very well. When I first started in practice with Ralph Dixon, I was not overwhelmed with cases. Actually, what with business and personal family expenses, if I did not start getting some good paying cases, I might have had to either go back into the LA DA’s Office or maybe stay in Orange County and join up with the local prosecutor’s office. There was not enormous competition between criminal lawyers as there were about 6 or 7 rather good ones and plenty of business to go around. From my observations as a prosecutor, I could not figure out why some really good criminal defense attorneys in LA, and I came across over the years all of them, why they would not join a government office, either as a public defender or prosecutor, and get a decent salary with your retirement and a pretty good pension plan, but they did. From my view as a DA, I say Joe Rosen, who was appointed on conflict cases and paid out of Court funds, was the lawyer I would have personally hired if I was ever in trouble. I had several cases against him, but one was memorable, not for the facts, but for the lesson I learned in the case. It was a run of the mill burglary case, the crime and the defendant’s admission to the LAPD detectives, but would not plead guilty, so therefore got a jury trial. So, I was put on the case with the victim testifying to the break-in, and the items stolen. (none recovered, and then the police investigator testifying as to the defendant’s statement connecting him with the crime, just standard operating procedure.) The cross exam by Joe Rosen, first attacking the so-called admission, developing that there were earlier statements, still about the same as the one testifyed to earlier, but Joe persisted and, guess what, it turned out there were earlier statements by the defendant completely denying his guilt in every way. Then the defense established in its case that the defendant was hammered with threats as to what would happen to him if he did not admit the crime. Verdict- not guilty, and afterwards, I asked Joe what possessed you to keep digging into the subject of the admission, when each time, and there were about three or four corroborating admissions until the last one, and the response taught me something I will never forget, which was basically “when you are in deep doody, it doesn’t matter if the crap is just over your head or whether you are six feet deep, you have nothing to lose,so if you continue, you might be able to ferret out something good.” Earlier in the last blog, I mentioned it is almost axiomatic one should not ask a question unless one knows the answer, but no rule is hard and fast, so if you have nothing to lose, you might as well go forth and see if there is anything that may help a dead-bang losing case.
So, in the beginning, I was hoping to get referrals from civil lawyers and develop a good practice. What I noted as a prosecutor, was that the criminal defense lawyers that were good and also financially successful were the ones who got their clients through referrals from civil lawyers who did not want to touch criminal cases. So, how do you do that in a new place where you are relatively unknown to the civil lawyer bar or firms Like John Dillenger, the famous bank robber? Go where the money is. That is one of the things I did. To start, I rented from the largest civil firm in Orange County at the time, and did receive a few references, but the bulk of their referrals went to a long time local criminal defense lawyer. Well, one day, one of the civil firm’s important clients was in jail based on a DUI arrest, and the lawyer who got the bulk of the referrals, (and those cases were very lucrative,) was unreachable; I think he was in Las Vegas, gambling, so I was called, got the guy out of jail with a phone call, and thereafter, got the bulk of the firm’s referrals, which propelled me to a successful practice. The moral is to be available, or if you are out of the area, still be reachable and have someone go over for you. Also, to get to know the bulk of the civil lawyers, get active in the State Bar Association as well as the local bar such as the Orange County Bar Association. As it turned out, though my motive in the beginning was to get business, I soon loved it and became what is known as a “Bar Junkie.”
I started out in the Administration of Justice in the local bar and actually eventually became a member of the local bar association’s Board of Governors. Worked hard for the organization in various ways, and also there was a separate organization called the “Orange County Bar Foundation,” of which I eventually became chairman of the Board. That organization sponsored a program called “Head Start,” taking over referrals from the Juvenile Court of young offenders and try to start the kids in the right direction and keep them from becoming involved in more serious criminal offenses, There was a full staff hired to accomplish the task, and, for the most part, it was very successful. At the time, I was Chairman. I managed to corral partners in the very large civil firms, and they could get things done. Ran golf tournaments and other types of activities to finance the project. As far as I know, the Foundation is still running full throttle, and is sill very successful. Then there was the State Bar.
At the time, each local bar association had a loose confederation and would meet once a year at what was known as “The Conference of Delegates,” where a group local Bar would be delegates at the State Convention, known as the State Bar Conference, alongside with the State Bar, a separate entity that governs and licenses all attorneys. At the convention, the local bar associations, through their delegates, recommend to the Board of Governors of the State Bar resolutions covering various fields of law. In that regard, I am proud to say, I drafted and argued a resolution which dramatically changed the law involving possession of illegal drugs, marijuana, cocaine, etc. At the time possession of just a little bit of marijuana was a felony punishable by state prison. Marijuana was known as “The Devil’s Drug,” and a first time offender generally got probation, but would have to serve 90 days in jail as one of the conditions. Well, after being placed on a special committee to look into the subject, and after learning about the drug, I changed my original thinking and recommended the local bar association approve a resolution I drafted to divert a defendant charged with simple possession out of the Criminal Justice System to the mental health system, and, if successfully completed an education class on the subject, and remaining free of arrests for 6 months, the case would be dismissed and the subject could say they have never been arrested or convicted of the charge, and the arrest was converted to a detention. I presented the resolution to the Conference of Delegates, spoke on what it meant and why it should be approved, and it was, and then the State Bar Association presented the proposed statute to the legislature, and Marshall’s proposal and recommendation was enacted into law and is used today known as Penal Code Section 1000 et seq. I am proud of my efforts, and nobody really knows today that I was the origin of the diversion programs contained in the modern-day penal code originally enacted in 1972, over 40 years ago
Think of all the young adults who no longer face the stigma of being known as a felon because of my work!
Another State Bar Activity I was intimately involved in was Specialization. As a prosecutor I first got the idea that the practice of law was becoming more and more complicated and believed that, like the medical profession, there should be lawyers who could hold themselves out as specialists in various fields, such as civil trials, domestic relations, probate and trusts, tax attorneys, etc. Well, the State Bar started many years ago a pilot program naming tax, probate and trusts, domestic relations and criminal law. A board of directors was created to run the overall project, with each proposed specialty having what is known as a committee of the specialty, such as “The Criminal Law Specialization Committee” and so forth. In Criminal Law, several of us were “grandfathered” in as specialists by submitting our background and getting approved by the Board, I being one of them. (I might add at this time not all really good and qualified attorneys wanted to be known as a specialist, one reason being they would be held to a higher standard of care and expose themselves to a higher risk of malpractice. I respect, but do not agree with, that concept.) Anyway, after several years, the pilot program was put to the State Bar Board of Governors to make the program permanent. At the time, I was the chairman of the criminal Law commission and my term was about to expire. So, the Board continued with me as chair for another term in order to push it through. There were a couple of State Bar Board members who opposed the program, believing if you are a lawyer, you can practice in any field of law. I knew the two very well, as we were all members of the American Board of Trial advocates known as ABOTA, but that made no difference. So when a hearing came up and the issue was raised that the criminal specialty lawyers did not have to take an examination, I countered with we will take the damned exam and it passed, but I and other grey-haired older advocates sat down with our typewriters and with over 30 years from my last test, I took the exam and passed. I termed out and Peter Keane, former assistant SF Public Defender and then either a professor or Dean of Golden Gate Law School, took over as Chairman of the Criminal Law Commission and I was a specialist for over 40 years, certified as such by the State Bar and proud of it.
So with all my contacts locally and statewide, I did very well in private practice, handling a multitude of cases, from misdemeanors to murder.
More to come
Marshall
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