Virginia's former Attorney General Ken Cuccinelli has launched "Virginia Self Defense Law: Defending Those Who Defend Themselves", a law firm that describes its services as, "If you have a retainer agreement with Virginia Self Defense Law PLC and you have a self-defense or law enforcement harassment situation, arising out of the use of your firearm, in which you or a family member end up being a named defendant in a Criminal, Civil, or administrative proceeding Virginia Self Defense Law PLC’s experienced trial ready attorneys will step in and defend you for no additional legal fees!"
My state legislator said yesterday on his Facebook page, Patrick Hope for Congress:
"I am absolutely appalled to see the news that former VA Attorney General Ken Cuccinelli has founded a new law firm to specialize in defending people who commit crimes with guns. His website even highlighted George Zimmerman as the kind of defendant they could help. Even worse, the firm is soliciting payments of around $10 a month as a retainer should their client commit a crime with a gun.
At a minimum this type of behavior is unethical for an attorney to be paid in anticipation of a crime- especially one with guns. I believe we can outlaw this in the U.S. Congress by passing a bill that would prohibit such arrangements in criminal cases.
Tony Soprano might appreciate this type of legal offering, but we need to outlaw this type of solicitation before it encourages more people like George Zimmerman to commit a crime with a gun.
Several Virginia State Bar Legal Ethics Opinions, culminating in the comprehensive Opinion 1606, allow non-refundable "retainers" to guarantee future availability for unknown future legal work, but say they are refundable 'advance" payments if they are for a specific job that is already planned. However, the nonrefundable retainers allowed by those opinions were only for "availability," and there were further charges for the actual legal work. With Virginia Self Defense Law there are not any further charges. The closest thing to that in Opinion 1606 is a "retainer" which is later credited toward the actual fees, and 1606 says that that must be treated as an "advance fee", which must be refundable, and not a "retainer". But what Virginia Self-Defense Law's retainer really is like is "prepaid legal", which is not covered in 1606 and was not common in this area in 1994, when 1606 was issued. But it is very common now. There is one Virginia State Bar Legal Ethics Opinion that mentions a prepaid legal services arrangement, but it focuses on a few specific questions that arose in it that were not related to prepayment, and does not even question the overall propriety of the arrangement. (LEO 1453).
I'm sensitive about this kind of thing, as a former campus ACLU chapter president. And because when I was growing up, my father and law partner defended people from all kinds of constitutional ourtrages, in criminal, civil and administrative litigation. And as a family law attorney, who sees every day the effects of the ruinous cost of private legal representation, not only for lower-class, but even middle-class people. And as a member of the Council of the Virginia State Bar, where we are preparing to tackle that very problem, and hoping that the Bar can be part of the solution to it, not part of the problem. Too often, court rules and sometimes even ethics rules have made affordable legal representation impossible for most people.
Comments on Delegate Hope's post include:
- "Patrick, chill out."
- "I don't see anything wrong with someone who defends himself or his family using a firearm to be able to have help proving his case in court, rather than being assumed he is a criminal and not being able to defend himself in court. Why would you not want someone to have his day in court and try and prove his innocence rather than assuming he is guilty because he used a gun?"
- "How could you possibly think that a retainer is unethical? Most criminal attorneys and many business attorneys offer them. Retainers have been around for about as long as the profession."
- "How the hell did this end up on my Facebook page?"