Chapter 4

LOOKING FOR A LAWYER (AND WHY YOU SHOULD DO IT SOONER, NOT LATER)

Kenneth A. Runes with Erik L. Smith and Ellen M. Baumann

"In ten years, we're gonna have one million lawyers...how much can a poor nation stand?"

Tom Paxton, 1985

Weíve all heard the jokes, the acrimony and the folk songs (see above). Even Don Henley of the Eagles (quoting Shakespeare) has advocated to "kill all the lawyers." But as of 2003, we do indeed have about one million lawyers in the U.S., one of every 275 people. With all due respect to the Bard and the Eagles, anyone telling you how disposable lawyers are has never had the right lawyer when he or she needed one.

WHY DOES A MIDWIFE NEED A LAWYER (BRINGING A GUN TO THE GUNFIGHT)?

Why does a midwife need a lawyer? This book is dedicated to midwives who have been prosecuted or persecuted by the state, the county, and sometimes their own clients for, among other things, being a midwife. The people doing the prosecuting were either state's attorneys, state agencies with their own attorneys on payroll, or clients who often managed to hire attorneys on a contingent fee basis (known in some places as a contingency fee; more on that later). If a midwife is arrested, there may not be a prosecutor at the police station, but there sure will be one for the state at the first court date. And the Judge who holds the midwife's fate in his or her hands? Ninety-nine percent of the time or more, that Judge was (and is) a lawyer first and has a law degree.

Want another reason that a midwife needs a lawyer? Look at the previous section of this book, describing the legal system. Lawyers go to school for at least seven years, take a grueling bar exam (which not everybody passes), then go out into the "real world" to learn how to research, argue without ticking off a judge, and apply classroom knowledge to courtroom situations. This book helps the midwife understand the system and not be shocked the first time she gets a search warrant or cease and desist order. It will not leave the midwife knowledgeable enough to represent herself. A midwife should feel no more comfortable representing herself than a lawyer would feel doing a midwife's job (besides, most of them hate the sight of blood). The rule of thumb is this: if they have a lawyer, so should you. After all, it's your freedom and your professional life that is at stake. And about your moral qualms about lawyers (if you have any)? Just remember, the state has no qualms about using lawyers to take away what you hold dear.



WHY MIDWIVES NEED LAWYERS SOONER, NOT LATER

Consider the following scenario: at 7:00 a.m. or earlier, the sheriff and/or police come knocking on the door of a good and competent midwife (GCM) with a search or arrest warrant. The charge(s) may include:
-Practicing medicine without a license
-Practicing (nurse) midwifery without a license
-Reckless endangerment
-Endangerment of a child
-Possession of a controlled substance (Rhogam, Pitocin, Oxygen)
-Involuntary manslaughter or involuntary manslaughter of an unborn child
-Consumer fraud (for allegedly holding yourself out as a doctor or certified nurse midwife)
-Violating a cease and desist order (of whichever agency licenses nurses)
-Other possible charges to follow, some felonies, some misdemeanors

In the GCM's office/bedroom/refrigerator/basement, the police can/will find several thousand dollars worth of midwifery equipment, Rhogam, Pitocin, oxygen tanks, etc., and several years' worth of client records, including all records for her current clients. All of the above are confiscated as possible evidence, leaving the GCM unable to practice until the stuff is returned, and unable to contact most/all of her clients to reschedule appointments or to say "by the way, the police may be calling you."

Our midwife is arrested, transported to jail, fingerprinted and read her Miranda rights, including one that basically says, "You have a right to have an attorney present during questioning. If you cannot afford an attorney, one will be appointed for you." She is advised that she is being held until she can post bail/bond (a condition of which may be not practicing as a midwife pending the outcome of trial) and that she is allowed to make one phone call.

Who does the good and competent midwife call? Probably the smartest bet is to call a friend or significant other to advise that she is in jail and to begin attempts to contact the lawyer and to bail her out (see Chapter 3 for a discussion of how bail works). But keep in mind that if the midwife doesn't reach a lawyer with that one phone call, her supporters will be spending time and money trying to find a lawyer while also trying to spring her from jail. Unless she lives near St. Petersburg, Florida, her chances of finding a lawyer ad targeting midwives are about one in a bazillion.

No, our good and competent midwife needed to find the right lawyer before the authorities executed the search warrant, a lawyer whose card she could keep in her purse for "that day." Hopefully that lawyer could tell the midwife what to do, or not do, before the lawyer gets to the police station, and might even talk to GCM about where to store her stuff before the guys with the search warrant arrive. But if a midwife calls a lawyer cold and says, "I've been arrested and all of my records and equipment have been seized," then that lawyer's job has gotten far more difficult and his/her price gone way up.

We know what many of you will say. "Why should I get a lawyer and spend the money when I may never need one?" For your answer, look again at our dedication, and ask yourselves which of those midwives figured out in advance that they would need a lawyer (answer: not many). The rest of them were immediately put on the defensive tactically, emotionally and financially when the state came to call. And in places where the state agencies believe midwifery is illegal except by Certified Nurse Midwives, the chances the state will knock on the door (or break it down) are high.

Even if the state is not actively trying to eradicate direct entry midwifery, it is very easy for a midwife to sneak onto the radar screen. This topic has been addressed more fully in Chapter 1 ("Why You Aren't Safe"), but here are some common ways that a quiet midwife can be "outed":
-a baby dies or is born with serious birth defects (regardless of whether the midwife caused it)
-an otherwise happy family's insurance claim is denied and they get mad
-the midwife signs a birth certificate
-the midwife advertises on the Internet or in the phone book
-the midwife gives an interview to local media, on radio or TV
-mother and baby are appropriately transported during a birth and -the family is unhappy they didn't have a home birth and/or -hospital staff is outraged and calls authorities
-mother is appropriately risked out of the midwifery practice and gets ticked off



INVOKING THE FIFTH AMENDMENT; WHY SILENCE IS INDEED GOLDEN

Before we ask you any questions, you must understand your rights. You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish. If you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer. Do you understand these rights?

Warnings to persons under arrest required by Miranda v. Arizona (1966), also repeated occasionally on TV reality show "COPS".

Miranda was the Supreme Court's way of making sure that law enforcement honored suspects' Fifth Amendment right to be free from self-incrimination. Miranda was actually the second step on the path to protecting suspects' rights; in 1964, the Supreme Court ruled in Malloy vs. Hogan for the first time that the Fifth Amendment applied to the states. Until that time, there had been (in the eyes of many) a problem with confessions being "persuaded" out of suspects while in state or local custody. Why is the Fifth Amendment important to you, the midwife?

  1. Because it is the state's job to prove the guilt of a defendant beyond a reasonable doubt
  2. Because it's against the law for a prosecutor to argue that if a defendant remained silent, it shows they are guilty
  3. Because there's no earthly reason for you to make the prosecutor's or cops' jobs easier
  4. Because there's no earthly reason for you to make your lawyer's job tougher

It will be very tempting for a midwife under arrest to want to "explain" what "really" happened to the police and/or the prosecutor, in the naive hope that the authorities will realize the error of their ways and drop the charges. This temptation must be resisted because:

  1. The people who do the interviewing at the early stages of a police investigation probably donít have the authority to drop the charges even if they have been persuaded
  2. In the process of explaining what "really" happened, the midwife may actually be admitting to elements of the crime she is being charged with
  3. Itís best to leave legal arguments to the lawyer who makes such arguments for a living

If you remain silent until you have a lawyer, you and the lawyer can talk about his advice on how to answer questions, the lawyer can be present during the interview with the police or sheriff, and the lawyer can decide when the interview is over. And you and your lawyer can always decide after consulting that you are going to give up your right to remain silent, but at least you will have made an informed decision, one that you and the lawyer will have prepared for.

Can the right to remain silent be invoked in civil or administrative proceedings? Probably. The rule of thumb is that if you would be exposing yourself to possible prosecution by answering the question, the Fifth Amendment applies. A civil court judge (for example where the midwife is sued for malpractice) or a hearing officer for a nursing board (for example where a midwife is accused of practicing nurse midwifery without a license) can order that a question be answered (even though the Fifth Amendment has been invoked), and that is a VERY good time to have the advice of a lawyer.

In the same vein, don't ever give your consent to any search of your property, office, car, etc., whether or not law enforcement has a search warrant. While it is likely that the search will happen without your consent, you will have at least preserved one of the criminal defense lawyer's favorite arguments, that the search (and the warrant if there was one) was without probable cause and therefore violated the Fourth Amendment (search and seizure), meaning that all evidence discovered in the search must be excluded from evidence at trial. There are many exceptions to the requirement of probable cause and they are confusing even to some lawyers. But if the search is done with the defendant's consent, that argument is generally out the window.



WHATíS A LAWYER?

A lawyer has gone to college for at least two degrees, a bachelor in almost anything and a Juris Doctor (J.D., "doctor of laws"). Law school typically lasts three years, after which graduates select one or more states in which they wish to practice. They take an intensive bar review course and then the bar exam for the state(s) they chose. The exam takes from one to three days and usually includes testing on lawyer ethics. The results can take up to several months to receive, with pass rates typically around 65% (some higher, some lower). Those that pass the bar receive licenses to practice law in that state only; if a lawyer wants to practice in more than one state, he/she must pass the bar in each state.

Lawyers' first jobs vary widely, from being associates (i.e. underlings) in medium to large firms to working as prosecutors or public defenders. Rarely does a new attorney hang out his or her own shingle; the bar exam is simply a foundation. The newly minted lawyer still needs a lot of experience in the law and business before going solo. People become lawyers for three basic reasons:

a) To make a good living;
b) To have power, prestige and/or influence, to be a force for good; and
c) Because it looked interesting on TV or when they saw their relatives practicing it.



WHY WOULD A LAWYER CARE ABOUT MIDWIFERY?

The reasons that a lawyer would take on a midwifery case mirror nicely the reasons why a person becomes a lawyer:

a) The lawyer believes the case will be profitable. Most lawyers will take a case if you are willing to pay the quoted fee (generally either hourly or flat fee; more on that below). There are exceptions where the lawyer feels that you don't have a good faith argument to support your position or when the lawyer has a conflict of interest because of somebody else the lawyer already represents. But by and large, if a client can pay and the lawyer feels he or she has the skill and know-how to do the work, the lawyer will take the case.

b) The lawyer believes in the rightness of your position or at least in your right to be represented. In our experience, most lawyers who get involved in midwifery cases and issues do so because they believe that home birth with a direct entry midwife is a safe option for most families which should not be eliminated by the states. They may well also believe that the states tend to over-govern and to interfere in issues best left to the family, or that the assault on direct entry midwifery is more about financial turf than public safety. Or they may just feel that a single midwife should not be run over by a government entity with more money at its disposal.

That said, even if a lawyer believes in your case, he or she will still probably need to get paid for the work they do. For reasons why it's tough to find a lawyer to do pro bono work, read on.

c) The work could be fun and could result in publicity or more clients. Itís not as cynical as it sounds; sometimes lawyers will take on cases just because it may get their names and faces in the public eye, resulting in free advertising. It's a double-edged sword, of course, because the lawyer aligns himself publicly with a midwife and midwifery, probably losing the potential business of anyone who is passionately on the other side of the debate (like most doctors and the insurance companies that insure them). But many lawyers create a niche as champions of the underdog because underdogs read papers and watch television, and eventually they remember the lawyer's name and dial the phone.

Is representing midwives fun? It certainly can be, because midwifery cases involve important questions about law and morality, the role of government, the right to privacy, and other issues that inspire passion and thought on both sides of the argument. Try getting that in a bankruptcy case or a real estate closing.



HOW TO FIND A LAWYER WHO KNOWS AND/OR CARES ABOUT MIDWIFERY

OK, so there is one lawyer for every 275 Americans. So you probably know one or know somebody who knows one. But how many lawyers know what a direct entry midwife is? I can assure you that seven of every ten lawyers, upon being told that you are a midwife, will presume that you are a certified nurse midwife.

Instead, let's try to guess how few lawyers know about direct-entry midwifery. Our best guess is that for every midwife included in the dedication to this book, there are two or three lawyers (on average) who represented her. Assuming for the sake of argument that a different lawyer represents/represented each midwife (a poor assumption, but we'll go with it), there may be two hundred lawyers in the U.S. who have ever represented a midwife in civil, criminal or administrative litigation and much less than a hundred who have ever represented a midwife in courts of appeals. That's easily less than ten in most states, and some of those lawyers are dead.

What's our point? Finding a lawyer who knows about midwifery is going to take some time if it's even possible. When a midwife is in jail or out on bond is no time to start the search. The alternative is to find a lawyer who's willing to be educated on the subject, and that will take considerably more time. START NOW.

Looking for a lawyer - we said start now (and a ten dollar bet you can't win)!

Elsewhere in this book you will find a list of resources, including knowledgeable attorneys who have agreed to be available for contact on midwifery-related issues. It is always better to contact a lawyer familiar with the laws (i.e. licensed) in your home state, but if these lawyers can't help you, they may know somebody who can. Some other avenues to find a lawyer are:

  1. Word of mouth/other midwives
  2. Attorney referrals
  3. Online lawyer databases
  4. Bar Association referrals
  5. Legal aid and law school clinics
  6. Public ads/yellow pages

Word of mouth/other midwives - The most reliable way to find a good attorney is by word of mouth, preferably from other midwives. Other midwives can tell you about attorneys who have represented them or others well, and about attorneys who have not represented them so well. Midwifery organizations like the Midwives Alliance of North America (MANA), Citizens for Midwifery (CfM) and local midwifery advocacy groups may also be able to provide names of lawyers familiar with the subject matter. If those avenues prove unsuccessful, getting an attorney to refer you to another attorney is the next preferred method.

Attorney referrals - The people who know the qualities of attorneys best are other attorneys. The first step is to determine what kind of attorney you need, criminal, administrative or civil and then find one. A midwife trying to find an attorney before disaster strikes will want to make connections with at least one attorney who can practice criminal law and one who can practice administrative law (if you're lucky, one attorney who can do both). Again, word of mouth is a good way to find one. The goal is to get the attorney to refer you to other attorneys who may best fit your needs. Attorneys are very willing to refer, as maintaining loyalty with other attorneys and good will with the public are good for business. Sometimes the referring attorney gets a fee from the lawyer to whom he refers clients. With very limited exceptions, your confidentiality privileges apply to all referring attorneys and to all lawyers you consult (more on this later). If by chance, a lawyer has a conflict of interest because he represents the other side, the lawyer has a duty to tell you up front. If an attorney has a conflict of interest, he or she should either decline the case outright or give you the names and numbers of other lawyers who might be appropriate. Those attorneys may refer you to yet other lawyers, and so on. If you cannot find an attorney through this process, you can consult online or hard copy lawyer databases.

Online lawyer databases - A good online database for finding lawyers is Martindale-Hubbell. At that site, lawyers are listed according to their general area of practice. So if you are looking for a lawyer experienced in criminal, administrative or civil litigation in your area, you can punch in a zip code or area code and that area of practice, and names and numbers of lawyers should appear.

Here's how: direct your browser to www.martindale.com. The site has a lawyer search feature on the home page. Click on the tabs: "location/area of practice." Fill in the first field by selecting "lawyers only." Then fill in the geographical information fields, and submit. A list of attorneys will come up. Read the descriptions under their names and print out a list, briefly prioritize, and start calling. If you find an attorney who is a former prosecutor, consider her a priority. Sheís bound to have some pretty good insight, and will either help you herself or know good attorneys to call. Maybe she has prosecuted a midwife before. That could be perfect. Who knows better about how to deal with and avoid prosecution and investigation than a former prosecutor? But in interviewing any attorney, you must make sure they donít have an anti-midwifery bias (more on that later). In any case, the idea is to get lawyers to start networking for you. If you were referred to the lawyer, always tell the lawyer the name of the previous lawyer who referred you (or that you heard about the lawyer online, from Martindale-Hubbell, etc.). If the attorney suggests you set up an appointment, consider going to it. In the meantime, continue calling other lawyers.

Another good online database for lawyers is www.findlaw.com. A word to the wise about such databases: these are paid advertising, and thus you only know the information about the lawyer that the lawyer has provided. Also keep in mind that if a lawyer has not paid to be included in that database, they won't be found there.

If you lack Internet access, most public libraries and almost all law libraries should have a hard copy of the Martindale Hubbell directory, a multi-volume set. Law libraries are typically located in courthouses and at law schools. If you lack convenient access to a courthouse or law library, ask an attorney you know if you can borrow their copy.

Bar association referrals - Most state and county bar associations have attorney referral services also. Most bar associations are private organizations with voluntary membership, although some states require membership in the state bar association. Most lawyers belong to the local bar association and a membership in the state bar association and/or national bar association is not uncommon (American Bar Association, National Lawyer's Guild). Getting a referral from a bar association is less effective than using online databases because:
a) lawyers are only part of the bar association if they have paid the fee to join;
b) often the association charges a separate fee to the lawyer for being part of the referral service so lawyers are only part of the bar association referral service if they have paid the fee to join;
c) bar associations refer on very general criteria and, we suspect, a more random basis to avoid favoritism.

Start with your local county bar association, if the county has one. If not, consider the bar association in the next closest counties. If local associations don't exist or don't work, try the state and national organizations. Call information for the phone number if you have to.

Legal aid and law school clinics - Legal aid clinics are much more likely to be found in major metropolitan areas, while law school clinics are found at many if not most accredited law schools. Legal aid clinics receive government and public funding and suffer from the same problems as public defenders; there is an unending supply of low-income people in need of their services, so their lawyers tend to be overworked and underpaid. In addition, legal aid clinics often limit their services to criminal defense, divorce, custody, child support matters, etc. and may shy away from civil rights or constitutional law disputes. Also, it is less likely that a lawyer at legal aid will be familiar with midwifery issues.

The law school clinics have some advantages in that they have a large supply of willing laborers (law students) and an inclination to take on novel or different kinds of cases for their educational value. Law school clinics are a good way for the law school to give to the community, but their primary purpose is to provide law students with a case and environment in which they can learn more about legal argument, legal research, public policy and other high-minded topics. While a legal aid clinic might turn away a midwifery case because they don't have experience in that area, law school clinics might take such a case just because it is different, i.e. an opportunity to teach law students how to think on their feet and analyze like lawyers. The teacher(s) of the clinic are attorneys who are responsible for teaching and supervising the law students.

Public ads/yellow pages - Please note that this is the last option on our list. Remember our midwife looking for a lawyer from jail? The sad reality is that if she is looking for an ad in the local phone book that mentions midwives or midwifery, she's not going to find it. We were so sure of that, in June of 2003, we issued a blanket bet that we'd pay ten dollars to anyone who could give us a copy of a lawyer's phone book advertisement that contained either of those words. Just our luck that Suzanne Suarez, Esq., of the Sunshine State (who said she mentioned midwifery in her phone book ad) was in the audience; we lost ten bucks, but the point was made. A phone book is about as useful in a midwife's search for a lawyer as a screen door in a submarine. Anyone who disagrees with us can try to win the bet; it will be open for at least another thirty years.

A word about appointed lawyers

Remember that it is a judge who will decide whether you cannot afford an attorney. If you do qualify (generally because you are unemployed, indigent, on public assistance or below the poverty line), you will be appointed either a public defender (an employee of the government) or a private attorney who has agreed to work at a reduced hourly rate. Public defenders in general tend to be overworked and underpaid. The likelihood that a court-appointed lawyer of either type will have a clue about midwifery issues is remote at best. If there is any way to accomplish it, retaining your own private attorney is preferable. But remember that if you get a court-appointed lawyer to begin with, you can in most cases switch over to a private lawyer later.

A final word of caution - if and when a lawyer comes to the jail or police station to talk to the midwife, she should be very, VERY careful that the lawyer works for her and not for the State's Attorney. This confirmation is easy to accomplish by asking, "Are you MY lawyer? Can I have your business card?"

Narrowing the search - tips for interviewing lawyers and for maintaining the relationship

When you first talk to a lawyer or even leave a message for one, be sure to say the "magic words". Tell them that you are a new client, the area of law you are inquiring about and how you came to get their name (referral from , phone book, Internet, etc.). This information will get you a quicker call back because lawyers are always looking for new clients and because they want to know how business is coming to them (when you pay $40,000 annually for phone book ads, you want to know whether anybody is reading those ads).

Just like the lawyer interviews the client to see if the lawyer wants the case, the client must interview the lawyer to find out if the client wants that lawyer. Some critical things to ask:

Have you ever dealt with a midwifery case before? A reasonable question, no? You want to know whether you will have to educate this lawyer on what a midwife is, what a CNM is, etc.

What do you know about midwifery and midwifery organizations? Even a lawyer who has not dealt with midwifery cases directly may have some experience as a corporate lawyer with local and national midwifery organizations. If they can't do the job themselves, they may understand enough about midwifery issues to steer you to the right lawyer.

Have you ever defended somebody on a felony charge before? Many criminal defense attorneys will defend misdemeanors but not felonies. The charges a midwife faces may well be felonies, implying more serious consequences and different court procedures.

How many jury trials have you done? Since the midwife has a right to a jury trial, she needs to know whether this lawyer is confident and able to do a jury trial. It involves different skills with regard to handling evidence, making arguments the jury can understand, being a reasonably good actor, not alienating the jury by being too argumentative, and so on. Also, a lawyer experienced with jury trials may be able to provide an educated guess as to whether a jury will be sympathetic to a midwife; perhaps a bench trial (judge and no jury) is a better idea. Please note that a ton of jury experience is not required, but enough so that the lawyer is clearly familiar with and comfortable with the process.

Have you represented defendants before the grand jury? Rules of procedure are also very different between a trial and a grand jury, and between grand juries in different states.

Do you represent any clients who would be unhappy that you are defending a midwife? Like doctors, nurses, CNMs, medical malpractice insurance carriers, etc. What the midwife is trying to find out with this question is whether there are any other obligations the lawyer has which will limit how hard the lawyer will fight on this case. If the lawyer has a conflict of interest that will interfere with his or her ability to zealously represent the midwife, the lawyer should definitely refer out the case or decline it, but itís still a good question to ask.

Do you have any philosophical objections to midwifery, and will they get in the way of representing me? Better to know this now; you may be able to argue the point(s) with the lawyer and find out whether their mind is open or closed to new arguments.

Have you represented anybody before this state agency? Defending somebody before a nursing board is a much less formal affair than criminal court or a malpractice lawsuit. You need to make sure that the lawyer knows how to play ball in that arena, and you may also find out whether the lawyer is well known (for better or worse) in that agency.

Do you take cases to trial or do you only make deals? If the midwife wants to use the legal system to make a point about her right to practice, the clients' right to her services, the safety of midwifery, the unfairness of the law, etc., she needs to align herself with an attorney who can and will make arguments instead of advocating to make a plea deal. The midwife must inform the lawyer from the very beginning that she wants to use the legal system to establish the legality and parameters of direct entry midwifery. This is especially important where a case may be lost in the trial court and/or the state agency, because courts of appeals will generally only listen to arguments that have been "preserved" in the lower court or agency. In short, almost any argument your lawyer does not make on your behalf in the lower court is abandoned forever.

Do you do work in the state Courts of Appeals or Federal Court? Only a small fraction of lawyers do appeal work, a discipline that is mostly paperwork with a smidge of oral argument. It's a scary kind of practice, because if a lawyer makes a mistake in the Appeals Court, it may be discussed in a published opinion that will be available to read for the next thousand years. Most attorneys can practice in Federal District and Appeals Courts, but only half or less actually practice there regularly. Once again, the rules of procedure are very different in Appeals Courts and Federal Court, and Judges can be very unforgiving to a lawyer who doesn't know the rules.

Have you defended malpractice actions or actions for injunctions? These are things that happen to midwives in civil trial courts. Does the lawyer spend time in the court(s) where these hearings are likely to occur? Is the lawyer experienced in defending either type of case? If the lawyer has defended malpractice cases, has it been for doctors or CNMs?

If you don't do criminal/civil/administrative/appellate law, can you help me find somebody who does? Only the most arrogant lawyers think they can do it all, and a good lawyer will tell you the areas they are good at and the ones they prefer to refer out. If the lawyer has a good referral network, they will be more able to communicate and cooperate with other lawyers involved in your situation.

Whose case is this, yours or mine? There's a right answer to this question; with limited exceptions, the lawyer's job is to give the client information to make a decision and to abide by the client's decision. The lawyer controls decisions of legal strategy and can decide not to make an argument that has no legal basis, but in most instances, the lawyer is ethically bound to do what the client directs. That said, nobody needs a lawyer who's going to make the journey unwillingly; if they feel that the client's approach to the case is a bad or risky idea, that should be discussed sooner rather than later.

Are you willing to be educated about midwifery by me or other lawyers? Sometimes the right lawyer is created, not found. But you must find out whether the lawyer is willing to learn what midwifery is, why it is not medicine or nurse-midwifery, why it is not dangerous for low-risk women and the public policy arguments for why it must survive. If the lawyer is willing to be educated, he/she may well charge you an hourly rate for the time it takes, and that can add up quickly (sometimes making a more knowledgeable lawyer a cheaper proposition). But you are better off with somebody willing to learn and be indoctrinated than with somebody who has his or her mind made up against you.

Can I get a hold of you in the middle of the night when I get busted? Remember, you have the right to an attorney's presence during questioning, but that means that you will likely have to wait until the lawyer arrives if you are arrested. You should connect with a criminal defense attorney who will be available as soon as possible and where you need them.

What should I do while I am waiting for you to arrive at my interrogation? You've heard our opinion; stay silent. But make sure that the lawyer tells you what he/she expects. If you cannot or do not follow the lawyer's directions, they may decline to represent you or ask the Court for leave to withdraw (i.e. to quit being your lawyer).

What should I do if police or sheriffs try to search my house? You've heard our opinion; whether or not they have a warrant, don't consent. They will probably conduct the search anyway, but you don't want to give up your legal argument that it was an illegal search. But ask the lawyer what they recommend. Filing and arguing a Motion to Suppress Evidence is very time-consuming and therefore expensive.

Can I talk to the media? Can my supporters? Will you? Not every lawyer is gung-ho to get the papers involved; in fact, most would rather not. Here are a few reasons:

  1. Talking to the media is time-consuming and distracting
  2. The media have a nasty tendency to misquote or twist words to get a sexier headline
  3. If the media thinks your quote is boring (or takes longer than twenty seconds), they won't use it anyway
  4. Anything the midwife says to the press may be admissible against her in court
  5. Using the media risks ticking off the Judge and/or contaminating the jury pool

Another rule of thumb applies: don't make the lawyer's job tougher without consulting them first. This applies with equal force to the actions of midwifery supporters; the defendant should never tell her supporters it's OK to stage protests, write letters to the editor, give interviews, and communicate with the Judge or the like. The right response is "Ask my lawyer, because he/she will have to deal with any negative effects."

How confidential is what we say in the lawyer's office? It's good to confirm with the lawyer where confidentiality ends, but it's true that with limited exceptions, almost everything you tell a lawyer is confidential. What the midwife says to just about anyone else except her husband is not confidential, and usually there is no confidentiality when a third person (or more) is present for a conversation. One critical exception; if you tell a lawyer that you are going to commit a serious crime in the future (including a fraud on the court), the lawyer will probably have an ethical obligation to reveal it.

Can I afford you? The discussion of how much lawyers charge and how fee arrangements are structured is just ahead.

Other considerations... Like many things, the right lawyer is something you likely recognize when you encounter it. Does the lawyer make eye contact? Do they express themselves well? Do they seem to listen? Do you feel like your right to ask questions is respected or that they think it's a waste of time? Does the office appear organized? Does the lawyer appear professional? Is the staff pleasant? Have you heard good or bad things about the lawyer in the community? What does your gut tell you? If it doesn't feel right, keep interviewing; that's part of the advantage of looking for a lawyer before your bail hearing.

Lawyers' fee structures and why they cost so much

No lawyer really works for himself. Employees (often called "associates" and "non-equity partners") work for owners (referred to as "partners", "shareholders" or "equity partners") in private firms, while state's attorneys, most city prosecutors, and U.S. Attorneys General work for the taxpayers. But partners in law firms are beholden to their partners and to the clients who pay the bills, thereby keeping them in business. Private law firms charge a lot for their services (two hundred dollars an hour in most markets is not uncommon) in part because the cost of doing business is high, and in lesser part because lawyers are trying to make as much money as other lawyers. Lawyers with more experience or a more complex area of law may charge significantly more per hour, but all lawyer fees reflect the same basic reality: because a lawyer cannot guarantee results, in most cases the lawyer can only charge for their time and expertise. The most common ways that lawyers charge can be boiled down to:

Hourly rates - The prevailing hourly rate will depend on where the midwife lives, being generally more expensive in metropolitan areas, less in suburbs and even less in rural areas. In many firms, time of partners is billed at a higher hourly rate than associates, who are in turn billed out at a higher rate than support staff. When a lawyer offers to work at an hourly rate, a retainer will usually be required before work begins. The retainer is a deposit that will most likely be exhausted in time; then the lawyer will continue to bill on an hourly rate or may ask for another retainer. But a lawyer with a higher billing rate may be a better bargain because he or she may be more experienced and thus take fewer hours to get the job done.

Flat fees, maximum and minimum - A maximum flat fee is one where the lawyer agrees to do the work at an hourly rate, but with an agreement in advance that the fees will not exceed a certain level. For example, the lawyer may say, "I'll work hourly but cap my fees at $10,000". A minimum flat fee is one where the lawyer agrees to charge hourly but will receive at least a certain amount in fees even if that many hours were not worked. For example, the lawyer may say, "I'll charge hourly, but under no circumstances will we take less than $2000 for attorneys' fees." The ethics rules of some states do not permit flat fee minimum arrangements. In criminal defense, it is not unusual to set fees at a specific dollar amount per court date.

Contingency and contingency offset - Contingency (also known as "contingent fee" or contingency fee") is a percentage arrangement; the lawyer gets a percentage (between 30% and 40%, generally) of the money that their client wins and nothing if their client loses. Contingency offset is a slight variation on contingency, where the lawyer charges a minimum fee up front, then deducts that amount from the percentage of attorneys fees at the end of the case. If the client loses, the only attorneys' fees are the funds paid at the beginning. Most midwives are never offered a contingent fee arrangement, and for obvious reasons; when a midwife is charged criminally, is sued for malpractice or is the subject of a proceeding to discipline her license, there are no funds to divide at the end of the case. Therefore the lawyer must use one of the other methods of setting fees or risk not getting paid.

Alternative fee arrangements - It never hurts to explore with the lawyer some other approaches to the fee, including a payment plan or charging a reduced hourly rate. If the lawyer believes that the reduced rate is the difference between getting hired and not, they will likely consider it. It may be worth discussing a lower hourly rate to be paid by the midwife until a Legal Defense Fund has enough money in it to pick up the slack (more on Legal Defense Funds below).

Costs - Costs are separate from attorneys' fees, and are usually passed on to the client. The costs include charges for court filing fees, paying court reporters, purchasing deposition transcripts, photocopying, expert witness fees and a variety of other out-of-pocket costs. Most states require that the client be ultimately responsible for the costs. Some lawyers will agree to pay the costs in advance and bill the client, while other lawyers make the client pay for costs as they are incurred.

While the amount of attorney's fees varies widely depending on where you live and what type of case it is, it is not uncommon for the bill for felony defense to be between $5,000 and $25,000 and as high as several hundred thousand dollars. Defense of an administrative proceeding (assuming a fee of $200 per hour) can easily generate $10,000 to $40,000 in fees, while defense of a malpractice case can be even more, depending on how many hours the lawyer has to work and how many days the trial is. Appeal work is the most time consuming; 200 hours of legal work is not out of the question on an appeal, and many lawyers charge their highest hourly rates (typical is $250-$350 an hour) when doing appeal work.

One Illinois midwife who has defended criminal charges, civil court proceedings seeking an injunction against her and various appeals has estimated that her legal bills exceed $250,000.

Looking at the numbers in the last two paragraphs, it becomes clear why it is hard to find a lawyer to take a case pro bono (i.e. without charge). No associate in their right mind would agree to sacrifice tens of thousands of dollars of the employer's potential income; he or she would be unemployed before long (and it's a very tight job market for lawyers). A small firm could easily go out of business if it opted to let a pro bono case take over vast amounts of office time. The lawyer's landlord doesn't care about how much good the lawyer is doing unless the lawyer's rent is paid.

Presumably most midwives are not sitting on $10,000 or more for the arrival of a rainy day. And it's self-evident that it is much more expensive to fight for principle in court than to enter into a deal (generally an unfavorable one) with the prosecutor. That's why legal defense funds are worth considering.



LEGAL DEFENSE FUNDS Ė SAVING FOR A RAINY DAY

Midwives and midwifery supporters in every state legally hostile to direct entry midwifery (most states) should establish a legal defense fund. Getting sufficient contributions requires we convince midwifery advocates of one of this bookís main messages: that criminal and other prosecutions are not just possible, but probable. LDF advocates include anyone wanting to preserve the option of homebirth for our friends, families, and citizens.

We are not unmindful of those that say that money should be poured into lobbying for new legislation, and we are sympathetic to the need for legislation which legitimizes and recognizes the right to practice for direct entry midwives. But fighting in the courts and fighting for legislation are not and cannot be seen as mutually exclusive; every time that a midwife is driven out of practice or out of the state by a prosecution, the client base and the profession suffer, birth options shrink and we get even closer to the elimination of direct entry midwifery in this country.

When you mention to a lawyer the possibility that he or she may be paid from a legal defense fund, many will be skeptical. They may never have worked with an LDF before or may not know how much public support exists for direct-entry midwifery. Part of your job in interviewing a lawyer is to educate him or her that the case is likely to be followed by midwifery supporters nationally and locally and that many are likely to contribute to the Fund. If you don't convince the lawyer that they are likely to get paid, they are much less likely to offer their services.

There are tax implications galore in the setting up and maintaining of legal defense funds and funds for legislative lobbying efforts, and those topics are well beyond the scope of this book. Suffice it to say that some arrangements are protected from tax, some are not, and the rules for keeping not-for-profit status are a legal minefield. Perhaps the most practical way to approach this problem is for the midwife to ask a lawyer this additional question:

"Can you help me in setting up a statewide defense fund so that if and when my time comes, you can get paid? If not, can you refer me to somebody who can help?"

Informed consent, lawyer style - the worst-case scenario

As a midwife, you would never guarantee the outcome of a birth or that transport will never be necessary. When you interview a lawyer, you should expect the same level of caution because any lawyer who says "I can make this go away" or "You won't be convicted" is either way too confident or is more of a salesman than a counselor at law. If you hear those kinds of guarantees about the outcome of your case, you need to keep looking.

In this respect, lawyers and midwives are similar; we both are obligated to tell the client the worst possible consequences of their decision, and to live with what the client decides (or to walk away from the client if ethics require). What the midwife must understand is that when a lawyer tells the midwife that she could lose her case, she could go to jail, she could be fined, she could lose her license, she could get a binding ruling that direct-entry midwifery is illegal for everyone in her state, and so on, the lawyer is engaging in informed consent, not scare tactics. Just like when a midwife says that sometimes babies die at home, that's informed consent.

To every midwife who decides to fight in the courts for the future of midwifery in her state, we offer the following observation for the purpose of informed consent:

The consequence of any decision to stand and fight is that one may lose, and lose completely. The consequence of any decision not to fight is to accept defeat before the battle even begins.





Copyright © 2004 by From Calling to Courtroom, Inc.
All rights reserved.