Article Review 2

The Practice of as Confidence Game: Organizational Cooptation of a Profession

Author(s): Abraham S. Blumberg

Source: & Society Review, Vol. 1, No. 2 (Jun., 1967), pp. 15-40

Published by: Wiley on behalf of the and Society Association

Stable URL: https://www.jstor.org/stable/3052933

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THE PRACTICE OF LAW AS

CONFIDENCE GAME

Organizational Cooptation of a Profession

ABRAHAM S. BLUMBERG

State University of New York at Stony Brook

A RECURRING THEME in the growing dialogue between sociology and
law has been the great need for a joint effort of the two disciplines to
illuminate urgent social and legal issues. Having uttered fervent public
pronouncements in this vein, however, the respective practitioners often
go their separate ways. Academic spokesmen for the legal profession are
somewhat critical of sociologists of law because of what they perceive
as the sociologist’s preoccupation with the application of theory and
methodology to the examination of legal phenomena, without regard to
the solution of legal problems. Further, it is felt that “.. . contemporary
writing in the sociology of law . . . betrays the existence of painfully
unsophisticated notions about the day-to-day operations of courts, legis-
latures and law offices.”l Regardless of the merit of such criticism,

EDITOR’S NOTE: In an essay contest sponsored by the Institute on Amer-
ican Freedoms for graduate students in sociology, this article (submitted
under the title of: Covert Contingencies in the Right to the Assistance
of Counsel) won first prize, in the amount of $1,000, in February 1967.
AUTHOR’S NOTE: The article is a revised version of a paper read at the
meetings of the American Sociological Association, Miami Beach, Florida,
August 30, 1966.

1. H. W. Jones, A View From the Bridge, and Society: Supplement to
Summer, 1965 Issue of SOCIAL PROBLEMS 42 (1965). See G. Geis, , Crimi-
nology, and Criminal , 7 SOCIAL PROBLEMS 40-47 (1959); N. S. Timasheff, Growth
and Scope of of , in MODERN SOCIOLOGICAL THEORY IN CONTINUITY AND

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LAW AND SOCIETY REVIEW

scant attention-apart from explorations of the legal profession itself-
has been given to the sociological examination of legal institutions, or
their supporting ideological assumptions. Thus, for example, very little
sociological effort is expended to ascertain the validity and viability of
important court decisions, which may rest on wholly erroneous assump-
tions about the contextual realities of social structure. A particular
decision may rest upon a legally impeccable rationale; at the same time
it may be rendered nugatory or self-defeating by contingencies imposed
by aspects of social reality of which the lawmakers are themselves
unaware.

Within this context, I wish to question the impact of three recent
landmark decisions of the United States Supreme Court; each hailed
as destined to effect profound changes in the future of criminal law
administration and enforcement in America. The first of these, Gideon
v. Wainwright, 372 U.S. 335 (1963) required states and localities hence-
forth to furnish counsel in the case of indigent persons charged with
a felony.2 The Gideon ruling left several major issues unsettled, among
them the vital question: What is the precise point in time at which
a suspect is entitled to counsel?3 The answer came relatively quickly

CHANGE 424-49 (H. Becker & A. Boskoff, eds. 1957), for further evaluation of the
strained relations between sociology and law.

2. This decision represented the climax of a line of cases which had begun to
chip away at the notion that the Sixth Amendment of the Constitution (right to
assistance of counsel) applied only to the federal government, and could not be held
to run against the states through the Fourteenth Amendment. An exhaustive historical
analysis of the Fourteenth Amendment and the Bill of Rights will be found in C.
Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original
Understanding, 2 STAN. L. REV. 5-139 (1949). Since the Gideon decision, there is
already evidence that its effect will ultimately extend to indigent persons charged
with misdemeanors-and perhaps ultimately even traffic cases and other minor offenses.
For a popular account of this important development in connection with the right to
assistance of counsel, see A. LEWIS, GIDEON’S TRUMPET (1964). For a scholarly his-
torical analysis of the right to counsel see W. M. BEANEY, THE RIGHT TO COUNSEL IN
AMERICAN COURTS (1955). For a more recent comprehensive review and discussion of
the right to counsel and its development, see Note, Counsel at Interrogation, 73 YALE
L.J. 1000-57 (1964).

With the passage of the Criminal Justice Act of 1964, indigent accused persons in
the federal courts will be defended by federally paid legal counsel. For a general dis-
cussion of the nature and extent of public and private legal aid in the United States
prior to the Gideon case, see E. A. BROWNELL, LEGAL AID IN THE UNITED STATES (1961);
also R. B. VON MEHREN, et al., EQUAL JUSTICE FOR THE ACCUSED (1959).

3. In the case of federal defendants the issue is clear. In Mallory v. United States,
354 U.S. 449 (1957), the Supreme Court unequivocally indicated that a person under
federal arrest must be taken “without any unnecessary delay” before a U.S. commissioner

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THE PRACTICE OF LAW AS CONFIDENCE GAME

in Escobedo v. Illinois, 378 U.S. 478 (1964), which has aroused a storm
of controversy. Danny Escobedo confessed to the murder of his brother-
in-law after the police had refused to permit retained counsel to see
him, although his lawyer was present in the station house and asked
to confer with his client. In a 5-4 decision, the court asserted that coun-
sel must be permitted when the process of police investigative effort
shifts from merely investigatory to that of accusatory: “when its focus
is on the accused and its purpose is to elicit a confession-our adversary
system begins to operate, and, under the circumstances here, the accused
must be permitted to consult with his lawyer.”

As a consequence, Escobedo’s confession was rendered inadmissible.
The decision triggered a national debate among police, district attorneys,
judges, lawyers, and other law enforcement officials, which continues
unabated, as to the value and propriety of confessions in criminal cases.4
On June 13, 1966, the Supreme Court in a 5-4 decision underscored the
principle enunciated in Escobedo in the case of Miranda v. Arizona.5
Police interrogation of any suspect in custody, without his consent,
unless a defense attorney is present, is prohibited by the self-incrimina-
tion provision of the Fifth Amendment. Regardless of the relative merit
of the various shades of opinion about the role of counsel in criminal
cases, the issues generated thereby will be in part resolved as additional

where he will receive information as to his rights to remain silent and to assistance of
counsel which will be furnished, in the event he is indigent, under the Criminal Justice
Act of 1964. For a most interesting and richly documented work in connection with
the general area of the Bill of Rights, see C. R. SOWLE, POLICE POWER AND INDIVIDUAL
FREEDOM (1962).

4. See N.Y. Times, Nov. 20, 1965, p. 1, for Justice Nathan R. Sobel’s statement to
the effect that based on his study of 1,000 indictments in Brooklyn, N.Y. from February-
April, 1965, fewer than 10% involved confessions. Sobel’s detailed analysis will be
found in six articles which appeared in the New York Journal, beginning Novem-
ber 15, 1965, through November 21, 1965, titled The Exclusionary Rules in the of
Confessions: A Legal Perspective-A Practical Perspective. Most law enforcement
officials believe that the majority of convictions in criminal cases are based upon con-
fessions obtained by police. For example, the District Attorney of New York County
(a jurisdiction which has the largest volume of cases in the United States), Frank S.
Hogan, reports that confessions are crucial and indicates “if a suspect is entitled to
have a lawyer during preliminary questioning . . . any lawyer worth his fee will tell
him to keep his mouth shut”, N.Y. Times, Dec. 2, 1965, p. 1. Concise discussions of
the issue are to be found in D. Robinson, Jr., Massiah, Escobedo and Rationales For
the Exclusion of Confessions, 56 J. CRIM. L. C. & P.S. 412-31 (1965); D. C. Dowling,
Escobedo and Beyond: The Need for a Fourteenth Amendment Code of Criminal Pro-
cedure, 56 J. CRIM. L. C. & P.S. 143-57 (1965).

5. Miranda v. Arizona, 384 U.S. 436 (1966).

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LAW AND SOCmITY REVIEW

cases move toward decision in the Supreme Court in the near future.
They are of peripheral interest and not of immediate concern in this
paper. However, the Gideon, Escobedo, and Miranda cases pose inter-
esting general questions. In all three decisions, the Supreme Court
reiterates the traditional legal conception of a defense lawyer based
on the ideological perception of a criminal case as an adversary, com-
bative proceeding, in which counsel for the defense assiduously musters
all the admittedly limited resources at his command to defend the ac-
cused.6 The fundamental question remains to be answered: Does the
Supreme Court’s conception of the role of counsel in a criminal case
square with social reality?

The task of this paper is to furnish some preliminary evidence toward
the illumination of that question. Little empirical understanding of
the function of defense counsel exists; only some ideologically oriented
generalizations and commitments. This paper is based upon observations
made by the writer during many years of legal practice in the criminal
courts of a large metropolitan area. No claim is made as to its method-
ological rigor, although it does reflect a conscious and sustained effort
for participant observation.

COURT STRUCrURE DEFINES ROLE OF DEFENSE LAWYER

The overwhelming majority of convictions in criminal cases (usually
over 90 per cent) are not the product of a combative, trial-by-jury
process at all, but instead merely involve the sentencing of the indi-
vidual after a negotiated, bargained-for plea of guilty has been entered.7

6. Even under optimal circumstances a criminal case is a very much one-sided
affair, the parties to the “contest” being decidedly unequal in strength and resources.
See A. S. Goldstein, The State and the Accused: Balance of Advantage in Criminal
Procedure, 69 YALE L.J. 1149-99 (1960).

7. F. J. DAVIS et al., SOCIETY AND THE LAW: NEW MEANINGS FOR AN OLD PRO-
FESSION 301 (1962); L. ORFIELD, CRIMINAL PROCEDURE FROM ARREST TO APPEAL 297
(1947).

D. J. Newman, Pleading Guilty for Considerations: A Study of Bargain Justice,
46 J. CRIM. L. C. & P.S. 780-90 (1954). Newman’s data covered only one year, 1954,
in a midwestern community, however, it is in general confirmed by my own data drawn
from a far more populous area, and from what is one of the major criminal courts in
the country, for a period of fifteen years from 1950 to 1964 inclusive. The English ex-
perience tends also to confirm American data, see N. WALKER, CRIME AND PUNISHMENT
IN BRITAIN: AN ANALYSIS OF THE PENAL SYSTEM (1965). See also D. J. NEWMAN,
CONVICTION: THE DETERMINATION OF GUILT OR INNOCENCE WITHOUT TRIAL (1966),

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THE PRACTICE OF LAW AS CONFIDENCE GAME

Although more recently the overzealous role of police and prosecutors
in producing pretrial confessions and admissions has achieved a good
deal of notoriety, scant attention has been paid to the organizational
structure and personnel of the criminal court itself. Indeed, the ex-
tremely high conviction rate produced without the features of an
adversary trial in our courts would tend to suggest that the “trial”
becomes a perfunctory reiteration and validation of the pretrial inter-
rogation and investigation.8

The institutional setting of the court defines a role for the defense
counsel in a criminal case radically different from the one traditionally
depicted.9 Sociologists and others have focused their attention on the
deprivations and social disabilities of such variables as race, ethnicity,
and social class as being the source of an accused person’s defeat in a
criminal court. Largely overlooked is the variable of the court organi-
zation itself, which possesses a thrust, purpose, and direction of its own.
It is grounded in pragmatic values, bureaucratic priorities, and adminis-
trative instruments. These exalt maximum production and the particu-
laristic career designs of organizational incumbents, whose occupational
and career commitments tend to generate a set of priorities. These pri-
orities exert a higher claim than the stated ideological goals of “due
process of law,” and are often inconsistent with them.

Organizational goals and discipline impose a set of demands and
conditions of practice on the respective professions in the criminal
court, to which they respond by abandoning their ideological and pro-
fessional commitments to the accused client, in the service of these higher
claims of the court organization. All court personnel, including the

for a comprehensive legalistic study of the guilty plea sponsored by the American Bar
Foundation. The criminal court as a social system, an analysis of “bargaining” and
its functions in the criminal court’s organizational structure, are examined in my forth-
coming book, THE CRIMINAL COURT: A SOCIOLOGICAL PERSPECTIVE, to be published by
Quadrangle Books, Chicago.

8. G. FEIFER, JUSTICE IN Moscow (1965). The Soviet trial has been termed “an
appeal from the pretrial investigation” and Feifer notes that the Soviet “trial” is simply
a recapitulation of the data collected by the pretrial investigator. The notions of a
trial being a “tabula rasa” and presumptions of innocence are wholly alien to Soviet
notions of justice…. “the closer the investigation resembles the finished script, the
better . . .” Id. at 86.

9. For a concise statement of the constitutional and economic aspects of the right
to legal assistance, see M. G. PAULSEN, EQUAL JUSTICE FOR THE POOR MAN (1964); for
a brief traditional description of the legal profession see P. A. Freund, The Legal
Profession, Daedalus 689-700 (1963).

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LAW AND SOCIETY REVIEW

accused’s own lawyer, tend to be coopted to become agent-mediators’0
who help the accused redefine his situation and restructure his per-
ceptions concomitant with a plea of guilty.

Of all the occupational roles in the court the only private individual
who is officially recognized as having a special status and concomitant
obligations is the lawyer. His legal status is that of “an officer of the
court” and he is held to a standard of ethical performance and duty
to his client as well as to the court. This obligation is thought to be
far higher than that expected of ordinary individuals occupying the
various occupational statuses in the court community. However, law-
yers, whether privately retained or of the legal-aid, public defender
variety, have close and continuing relations with the prosecuting office
and the court itself through discreet relations with the judges via
their law secretaries or “confidential” assistants. Indeed, lines of com-
munication, influence and contact with those offices, as well as with
the Office of the Clerk of the court, Probation Division, and with the
press, are essential to present and prospective requirements of criminal
law practice. Similarly, the subtle involvement of the press and other
mass media in the court’s organizational network is not readily dis-
cernible to the casual observer. Accused persons come and go in the
court system schema, but the structure and its occupational incumbents
remain to carry on their respective career, occupational and organiza-
tional enterprises. The individual stridencies, tensions, and conflicts a
given accused person’s case may present to all the participants are
overcome, because the formal and informal relations of all the groups
in the court setting require it. The probability of continued future
relations and interaction must be preserved at all costs.

This is particularly true of the “lawyer regulars” i.e., those defense
lawyers, who by virtue of their continuous appearances in behalf of
defendants, tend to represent the bulk of a criminal court’s non-indigent
case workload, and those lawyers who are not “regulars,” who appear
almost casually in behalf of an occasional client. Some of the “lawyer
regulars” are highly visible as one moves about the major urban centers
of the nation, their offices line the back streets of the courthouses, at
times sharing space with bondsmen. Their political “visibility” in terms
of local club house ties, reaching into the judge’s chambers and prose-

10. I use the concept in the general sense that Erving Goffman employed it in his
ASYLUMS: ESSAYS ON THE SOCIAL SITUATION OF MENTAL PATIENTS AND OTHER INMATES
(1961).

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THE PRACTICE OF LAW AS CONFIDENCE GAME

cutor’s office, are also deemed essential to successful practitioners.
Previous research has indicated that the “lawyer regulars” make no
effort to conceal their dependence upon police, bondsmen, jail personnel.
Nor do they conceal the necessity for maintaining intimate relations
with all levels of personnel in the court setting as a means of obtaining,
maintaining, and building their practice. These informal relations are
the sine qua non not only of retaining a practice, but also in the nego-
tiation of pleas and sentences.”

The client, then, is a secondary figure in the court system as in
certain other bureaucratic settings.l2 He becomes a means to other ends
of the organization’s incumbents. He may present doubts, contingencies,
and pressures which challenge existing informal arrangements or disrupt
them; but these tend to be resolved in favor of the continuance of the
organization and its relations as before. There is a greater community
of interest among all the principal organizational structures and their
incumbents than exists elsewhere in other settings. The accused’s lawyer
has far greater professional, economic, intellectual and other ties to
the various elements of the court system than he does to his own client.
In short, the court is a closed community.

This is more than just the case of the usual “secrets” of bureaucracy
which are fanatically defended from an outside view. Even all elements
of the press are zealously determined to report on that which will not
offend the board of judges, the prosecutor, probation, legal-aid, or other
officials, in return for privileges and courtesies granted in the past and
to be granted in the future. Rather than any view of the matter in
terms of some variation of a “conspiracy” hypothesis, the simple expla-
nation is one of an ongoing system handling delicate tensions, managing
the trauma produced by law enforcement and administration, and re-

11. A. L. Wood, Informal Relations in the Practice of Criminal , 62 AM. J.
Soc. 48-55 (1956); J. E. CARLIN, LAWYERS ON THEIR OWN 105-09 (1962); R. GOLDFARB,
RANSOM-A CRITIQUE OF THE AMERICAN BAIL SYSTEM 114-15 (1965). In connection
with relatively recent data as to recruitment to the legal profession, and variables in-
volved in the type of practice engaged in, will be found in J. Ladinsky, Careers of
yers, Practice, and Legal Institutions, 28 AM. Soc. REV. 47-54 (1963). See
also S. WARKOV & J. ZELAN, LAWYERS IN THE MAKING (1965).

12. There is a real question to be raised as to whether in certain organizational
settings, a complete reversal of the bureaucratic-ideal has not occurred. That is, it
would seem, in some instances the organization appears to exist to serve the needs of
its various occupational incumbents, rather than its clients. A. ETZIONI, MODERN ORGAN-
IZATIONS 94-104 (1964).

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LAW AND SOCIETY REVIEW

quiring almost pathological distrust of “outsiders” bordering on group
paranoia.

The hostile attitude toward “outsiders” is in large measure engen-
dered by a defensiveness itself produced by the inherent deficiencies
of assembly line justice, so characteristic of our major criminal courts.
Intolerably large caseloads of defendants which must be disposed of in
an organizational context of limited resources and personnel, potentially
subject the participants in the court community to harsh scrutiny from
appellate courts, and other public and private sources of condemnation.
As a consequence, an almost irreconcilable conflict is posed in terms
of intense pressures to process large numbers of cases on the one hand,
and the stringent ideological and legal requirements of “due process
of law,” on the other hand. A rather tenuous resolution of the dilemma
has emerged in the shape of a large variety of bureaucratically ordained
and controlled “work crimes,” short cuts, deviations, and outright rule
violations adopted as court practice in order to meet production norms.
Fearfully anticipating criticism on ethical as well as legal grounds, all
the significant participants in the court’s social structure are bound
into an organized system of complicity. This consists of a work arrange-
ment in which the patterned, covert, informal breaches, and evasions
of “due process” are institutionalized, but are, nevertheless, denied to
exist.

These institutionalized evasions will be found to occur to some

degree, in all criminal courts. Their nature, scope and complexity are
largely determined by the size of the court, and the character of the
community in which it is located, e.g., whether it is a large, urban
institution, or a relatively small rural county court. In addition, idio-
syncratic, local conditions may contribute to a unique flavor in the
character and quality of the criminal law’s administration in a par-
ticular community. However, in most instances a variety of stratagems
are employed-some subtle, some crude, in effectively disposing of what
are often too large caseloads. A wide variety of coercive devices are
employed against an accused-client, couched in a depersonalized, instru-
mental, bureaucratic version of due process of law, and which are in
reality a perfunctory obeisance to the ideology of due process. These
include some very explicit pressures which are exerted in some measure
by all court personnel, including judges, to plead guilty and avoid
trial. In many instances the sanction of a potentially harsh sentence is
utilized as the visible alternative to pleading guilty, in the case of

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THE PRACrICE OF LAW AS CONFIDENCE GAME

recalcitrants. Probation and psychiatric reports are “tailored” to organi-
zational needs, or are at least responsive to the court organization’s
requirements for the refurbishment of a defendant’s social biography,
consonant with his new status. A resourceful judge can, through his
subtle domination of the proceedings, impose his will on the final out-
come of a trial. Stenographers and clerks, in their function as record
keepers, are on occasion pressed into service in support of a judicial
need to “rewrite” the record of a courtroom event. Bail practices are
usually employed for purposes other than simply assuring a defendant’s
presence on the date of a hearing in connection with his case. Too
often, the discretionary power as to bail is part of the arsenal of weapons
available to collapse the resistance of an accused person. The foregoing
is a most cursory examination of some of the more prominent “short
cuts” available to any court organization. There are numerous other
procedural strategies constituting due process deviations, which tend
to become the work style artifacts of a court’s personnel. Thus, only
court “regulars” who are “bound in” are really accepted; others are
treated routinely and in almost a coldly correct manner.

The defense attorneys, therefore, whether of the legal-aid, public
defender variety, or privately retained, although operating in terms of
pressures specific to their respective role and organizational obligations,
ultimately are concerned with strategies which tend to lead to a plea.
It is the rational, impersonal elements involving economies of time,
labor, expense and a superior commitment of the defense counsel to
these rationalistic values of maximum production13 of court organization
that prevail, in his relationship with a client. The lawyer “regulars” are
frequently former staff members of the prosecutor’s office and utilize
the prestige, know-how and contacts of their former affiliation as part

13. Three relatively recent items reported in the New York Times, tend to under-
score this point as it has manifested itself in one of the major criminal courts. In one
instance the Bronx County Bar Association condemned “mass assembly-line justice,”
which “was rushing defendants into pleas of guilty and into convictions, in violation
of their legal rights.” N.Y. Times, March 10, 1965, p. 51. Another item, appearing
somewhat later that year reports a judge criticizing his own court system (the New
York Criminal Court), that “pressure to set statistical records in disposing of cases
had hurt the administration of justice.” N.Y. Times, Nov. 4, 1965, p. 49. A third, and
most unusual recent public discussion in the press was a statement by a leading New
York appellate judge decrying “instant justice” which is employed to reduce court
calendar congestion “. . . converting our courthouses into counting houses . . ., as in
most big cities where the volume of business tends to overpower court facilities.” N.Y.
Times, Feb. 5, 1966, p. 58.

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LAW AND SOCIETY REVIEW

of their stock in trade. Close and continuing relations between the
lawyer “regular” and his former colleagues in the prosecutor’s office
generally overshadow the relationship between the regular and his
client. The continuing colleagueship of supposedly adversary counsel
rests on real professional and organizational needs of a quid pro quo,
which goes beyond the limits of an accommodation or modus vivendi
one might ordinarily expect under the circumstances of an otherwise
seemingly adversary relationship. Indeed, the adversary features which
are manifest are for the most part muted and exist even in their at-
tenuated form largely for external consumption. The principals, lawyer
and assistant district attorney, rely upon one another’s cooperation for
their continued professional existence, and so the bargaining between
them tends usually to be “reasonable” rather than fierce.

FEE COLLECTION AND FIXING

The real key to understanding the role of defense counsel in a crimi-
nal case is to be found in the area of the fixing of the fee to be charged
and its collection. The problem of fixing and collecting the fee tends
to influence to a significant degree the criminal court process itself, and
not just the relationship of the lawyer and his client. In essence, a
lawyer-client “confidence game” is played. A true confidence game is
unlike the case of the emperor’s new clothes wherein that monarch’s
nakedness was a …