Public Defender to Private Practice: Criminal Defense From Scratch

Kyle McEntee:

We're joined today by Devin Morse, a criminal defense lawyer at a firm in Anchorage, Alaska. In your practice, you specialize in unclassified felonies, the most serious crimes with the most significant sentences. I know one of the most common questions you get from non-lawyers is, how can you represent the people you do? How do you respond to that?

Devin Morse:

I do get that question all the time, and I usually have two answers, a short answer and a long answer. The short answer is, I believe in the Constitution and everyone deserves a defense, and I'm happy to do that.

My long answer is usually going into detail about some of the facts of what cases that I have look like. I think most people hear that I do sex cases or homicide cases, and they think of a sex crime of somebody dragging someone off of the side of the road and violently raping them. That happens. I would still defend that person, but a lot of times it's much more nuanced than that. Sort of explaining what some of the fact patterns that I see all the time look like and then what the sentencing ranges of those fact patterns are, especially now in today's climate, usually is pretty eye-opening to people. But most of the time, sort of humanizing what my clients are going through and giving them the realities of what some of these charges look like is pretty eye-opening to people. I also tell them that my job is to be the person that is there for someone in the worst day of their life and walk them through a system that is incredibly difficult to navigate and make sure that I do the best job I can doing that.

Kyle McEntee:

So I think what ties your short and long answers together is that there's a difference between factual and legal innocence. Can you talk a little bit about that?

Devin Morse:

Yeah, absolutely. So factual and legal innocence are very, very different. You can commit a crime and be actually guilty of doing something in the eyes of a layperson. And if the police officers and the district attorneys don't do their job to prove that beyond a reasonable doubt, or if they do things to violate your constitutional rights, you are not legally guilty of that crime. And we see things like that happen all the time where maybe the person is factually guilty of something, but police officers are human. They get tunnel vision. District attorneys are overworked. They don't put time and effort into things. And if they don't do their job, you can't convict someone of a crime.

You need to have serious investigations. You need to make sure you follow the law, and that doesn't happen all the time. And I'm here to point all of those things out and make sure it does happen.

It's my job to make sure that if someone is convicted, it is because they are legally guilty. Now, my job is to make sure that someone isn't convicted, but that does happen. And when it does happen, our hope is that it is because we have made sure that we have gone down every path necessary to make sure that the investigation happened the way that it should and that all of their rights were upheld.

Kyle McEntee:

These are really complex, sensitive situations. Your clients have those complex, sensitive stories that they're sharing with you about how they got to that place where they need to hire you as their criminal defense lawyer. Is finding a way to relate to each client important?

Devin Morse:

It is definitely an intimate job in the sense of getting to know people and sort of seeing them at their worst and dealing with them going through such a difficult time. Now that we're in private practice, I was a public defender where I took every single case that came to me. But now in private practice, we have the ability to sort of pick and choose a little bit more as to what clients that we take.

And when I say that, I just mean in making sure that we are able to develop a relationship with the client that we have because you want someone to trust you. You want someone to recognize that you're fighting for them. A lot of times we have people come in and want to just sit down and try to convince us that they are innocent. And we like to take a step back and say, that's not really what our job is. We want to make sure that you trust us in the relationship that we have with you as a client and as an attorney. But you know, realistically in the kind of cases that we have and technology that's out there, just the other day I got, they're called Celebrate here, which are phone dumps of someone's entire life.

So I am meeting a client and then 30 days later when I get discovery, I am reading their entire life on a phone and seeing all of these things. I am seeing pictures of their bodies, sometimes of their genitals. I am seeing every little window into a horrible time in their life. And so you have to develop that kind of relationship with a person and feel like you can trust them. And that goes both ways. There have been times where I've met with clients now that I just say, I'm not the right attorney for this. You're going to have a much better relationship with someone else. And as a firm in general, there have been times where we've passed clients to one of the other partners because we've made the determination that either this person needs a female based on their case or they need a male or our personalities just don't fit to where we'll be able to give you the best representation. So we have those kinds of conversations all the time now. When I was a public defender, it was a little bit different. It was everyone that came in the door is going to be your client and you're going to try to give them the best representation possible. Sometimes that's sort of difficult to do when you have personality clashes, but you work through that.

Kyle McEntee:

Yeah, I think there's something to building trust with a client when you get that phone dump and you get to know everything about them, their deepest darkest challenges or what their mundane parts of their life are like. But at the same time, that could be really threatening to someone and make it maybe harder for them to trust you because they're like, hey, how do you know all of this? They know that you have their phone, but don't necessarily know that you actually did read every text message and you did see what they said that one time.

Devin Morse:

Oh yeah, they always know. I mean, I have a lot of conversations with people about that and I have not experienced clients feeling either threatened or really embarrassed, things like that. I think mainly just because they have nobody else to talk to. One of the first things we say is the only person you can talk to is me about this. You cannot talk to anyone else. And that makes people crazy in general because they want to talk to everyone about what's going on.

And so I think most of the time people are really thankful to have someone that is able to sort of dig into this experience that isn't a police officer and that they can sort of explain what was happening to. So I haven't really experienced people being nervous about that. I can say that there have been a lot of awkward and maybe sensitive conversations, especially in sex cases where there are a lot of photos coming in and having a conversation with your younger female attorney when you're very aware that she's just seen a bunch of pictures. That can be sort of awkward, but people get over that real quick when they realize that they have somebody that's fighting for them. But it's not a normal job, right? Like most of the time a lot of lawyers aren't being crass, looking at dick pics every day. Like I do that.

Kyle McEntee:

So, can you talk a little bit more about that initial intake conversation? We've talked a little bit about building trust and I'm sure you're also communicating what the process is going to be like. How do you approach that?

Devin Morse:

So I think that is one of the most important aspects of developing that relationship and figuring out if you want to have the client and also determining the relationship moving forward. I do a very sort of intensive, I'd say consultation slash intake. It's interesting now being in private practice, a lot of times we are contacted by either family members or an interested party, someone who is going to be paying for things.

We always bring the actual client in and sit down and meet with them in person. The first thing that I do is usually explain attorney-client privilege and that they can tell me whatever they want to tell me and I can't tell anyone else. And then I also start off by explaining to them that I am not here to judge guilt or innocence.

Like I said before, a lot of times people want to come in and show me that they're a good person or show me that this is not in their character or explain those kinds of things. And so I like to sort of take a step back and explain the process to them that that's not what our job is and that we're only looking at this small period of time. And then I usually do the hard thing, which is walking them through, you know, what the actual charges mean in the sense of what the elements that need to be shown are and what the sentencing ranges are.

I think a lot of times, most of our clients, a lot of people charged with unclassified felonies are not familiar with the criminal justice system. A lot of people don't have any criminal history, have never been arrested before, and then they find themselves in these situations. And so they will have a lot more faith in the system than they should, and they don't recognize how serious the charges are.

And unfortunately, a lot of our job is sort of preparing people for what this actually looks like. So going through the fact that these charges, the sentencing ranges 30 years to 99 years right off the bat so that they recognize how serious it is, is a big thing that we do. And then we just sort of walk them through what the administrative side of everything is in the sense of this is going to take a lot of time and it's not quick and easy.

And explaining your side of the story to the DA on a phone call is usually not going to get your case dismissed. And sort of giving them the realities of what working inside of a system is. We've got a prosecutor, we've got a judge, we have a huge backlog in this state. It is not going to be fast. And then usually at the end of that, I just ask them if they have questions and let them sort of talk to me. Most people don't feel comfortable talking to other people, and they have a lot of questions just about usually things that I wouldn't think of.

They vent quite a bit. And then I explain to them sort of how our relationship will work is the final aspect of our intake, which usually involves things like write things down and send them to me so that I can answer in writing. Because you're going to be so overwhelmed and so stressed out about this whole process. You're going to forget everything that I've said to you. So having an ongoing list of what we've gone over is going to save you time and money. And just walking them through what the next step will look like.

You know, a lot of in the criminal world, there are a lot of things that happen in every single case. So most of the time we go through our next step is a bail hearing. Then we have discovery that comes in. Then we review it. Then we write motions. And then we decide what we're going to do. So a lot of sort of procedural steps, but also handholding in the beginning. There have been many times that we've gone through consultations like that. And at the end of it said, we may not vibe here.

I also tell people often that they should contact a bunch of different attorneys and find someone that they feel most comfortable with, especially in really big cases. We're talking hundreds of thousands of dollars for a defense. They need to find an attorney that they feel the most comfortable with. And I'm not interested in selling myself to a client. And if they do, they come back. If they find somebody that they like more, we're happy for them.

Kyle McEntee:

And so that initial intake conversation, then it's before the engagement letter.

Devin Morse:

Yeah. I mean, we will do sort of initial consultation where we have some attorney client privilege, I would say. I always tell the clients that I don't want them to get into the facts of the case. But I do that even once they have retained us because I don't want to know their side of the case until I've reviewed discovery so that we can go over that and see what the state side of things are because of ethical duties that we have. Sometimes it's better for me not to hear my client's side of the story until we have reviewed everything. But yeah, we want to know. Even in the initial consultation, we want to know sort of the gist of things. And nowadays in Alaska, our system, we can pull charging documents. We can pull usually some sort of statement of what's going on. So it's not fully confidential, the information that they're giving us.

Kyle McEntee:

So you talked about one of the things you tell them is that you are not there to judge their guilt or innocence. And that really speaks to that systemic role in the justice system that you see yourself playing. But that doesn't mean you don't judge them in other ways, right? You're not fully backing out of having emotions about what you're reading or hearing.

Devin Morse:

Oh, no. I mean, I'm a human. Of course, I have emotions and opinions and all sorts of things like that. And I'm very good at separating those. But yeah, of course, there are times that I see things and have initial reactions. I think it's really important to consider that side of thing and sort of stay human when you see cases because while I am good at separating those things, you want to get a sense of what a jury is going to think sort of immediately.

They're not going to see the litigation that happens behind the scenes. That all occurs before you get to trial. So your sort of gut instinct on the facts of a case is usually good because that's what a jury is going to think too.

Kyle McEntee:

All the more reason for you to not get the facts as your client sees it too early.

Devin Morse:

Yeah, definitely. A lot of trial work, which is different than the motion practice side of things, but a lot of the trial work is sort of putting on a performance. I tell clients this all the time that from day one, the first thing I am thinking is, how is this going to play in front of a jury? What is my narrative going to be? What is my defense going to be? And included in that is, what does my client look like? How is he going to come off or she? And how do we shape the evidence that the state has to make the narrative that I want to control work in a way that a jury is going to either find convincing or at least listen to?

Kyle McEntee:

One of the things that I keyed in on what you were saying was the client's expectations and making sure you set them appropriately. And I do think some clients probably hear you talk about zealous advocacy and think that means you will do anything for me. How do you have that conversation of I actually am an important part of this system and I actually am bound by ethical rules of professional responsibility. I am not everything to you, but I am the best you have.

Devin Morse:

You can kind of tell right off the bat what kind of client you're going to have. And sometimes during that initial conversation, I tell them that the client is able to make three decisions. And one of them is deciding whether or not to testify. One is deciding whether or not to go to trial. And the other is deciding whether or not to plead guilty to something. And they can make whatever decision they want on all three of those. And I will always represent them even if I disagree with those decisions. We will fight as hard as we possibly can. And I explained that, right? There could be a great deal on the table that I say, we really should take this. And if they tell me, no, I want to go to trial, we're going to go to trial and we're going to fight at trial. And I'm going to have no qualms with them making that decision. But I am not going to file a bunch of motions that I ethically cannot file. I'm not going to try and call the alleged victim and threaten her. I've heard everything you can possibly think of.

So for some people, I will immediately set that expectation because they'll come in with all of these ideas. And a lot of it is more sort of that I notice now is more character evidence for them. They want to put on all of their friends and family.

They want to call their church members. They want to show that they are not this person. And that's sort of hard for a lot of people to wrap their head around the fact that that is not what we're doing here. When I was a public defender, we had a different sort of clientele. And it was always a fight as to what we could and couldn't file. Alaska has a really big sovereign citizen population.

Kyle McEntee:

Can you explain what that is for people who don't know?

Devin Morse:

Yeah. Sovereign citizens believe that they basically don't live within the law, is the best way to put it. But they like to file UCC motions. They don't believe that you can use their name in court. So they will sue you for copyright infringement. I was sued by a client for $100 million gold bullion for saying his name in court because I infringed on his copyright of his name.

Kyle McEntee:

What does that translate to in dollars?

Devin Morse:

You know, I didn't even know bullion was a thing. I was like, chicken stock? What is that? And it was dismissed, but he wanted a significant amount of money. And so, you know, there are a lot of clients that would want you to file really crazy things in my public defender days, which you just say no. Nowadays, it's a little bit different. We don't see that as often. But for sure, we have conversations all the time about what we will be doing and what we won't be doing. But I think most of the time, when you're at sort of the level that I'm at and the charges that we're dealing with, your clients trust you because they see you in court. They see you fighting for them. I'm always telling them what I'm going to be doing and what my plan is moving forward. So they know that we're filing everything that we should be filing and fighting as hard as we can. But we also have in our retainer that we can withdraw from a case for any reason. And the client can leave us for any reason, too. I mean, at a certain point, sometimes the courts will force us to stay in. But that's never happened. But if it gets to a point where, you know, the representation is not working, we'll leave the case. And that has occurred before.

We've had clients that, you know, have continuously picked up violating conditions of release and done things that we have told them over and over and over to stop doing. And we decide we don't want to represent them anymore.

Kyle McEntee:

What was it like when you fired your first client? I've heard from other lawyers on this show that they're so scared to do it because it's taking money out of your pocket. But once they do it, they feel empowered. Does that resonate with you?

Devin Morse:

Yeah, I think that I spent so long not ever caring about money as a defense attorney because I was just paid a salary that that doesn't fully come into it. I think there's aspects of sort of pride with both parties, the attorney and the client, that you can't make this relationship work. But also, I mean, I have hard conversations with people all the time. Getting rid of a client is by no means the hardest one I've ever had. And usually it's just an explanation of like, we're not the right fit. I've never fired a client. And when I say fired a client, I think it's only happened two times. But we always had other attorneys lined up that they could talk to. We always give them information. Usually at that point, not a lot has happened in the case. So they get their retainer money back and they can move on. And most of the time it is in a situation where they really want to stay with us either. So, you know, it's an attempt to be as cordial as possible and make the decision that it's time to break up.

Kyle McEntee:

So speaking of breakups, you were a public defender for about 10 years. And then eventually you and your co-workers decided it was time to leave and start your own practice. How did you know it was time to move on?

Devin Morse:

Being a public defender is a very, very difficult job. There were a lot of changes that happened at the agency. Probably in the last three years that I was there, we got a new public defender, a bunch of people that had been there for a really, really long time left. There was COVID had happened. There was a lot of turnover. The courts were pushing everyone to trial. So there was a lot of things like that that were going on. I also was just getting older and decided that I either needed to make the decision to be a lifetime public defender or I needed to do something different. Thankfully, the two people that I left with, one, Monique, my partner, she had already left and she was doing contract appellate work. And so she and I talked about it sort of just as a joke for a long time. And then my other partner, Jaffer, and I, we all, all three of us really started talking about things. And we sort of spent a year doing therapy to make sure that we could all work together, starting a business when none of us have done that before, and going from a big agency where you're around a bunch of different people to just being the three of us. We spent a lot of time making sure that it was a good fit. Jaffer and I did a murder trial together. And then we sort of just all left and put out a shingle and it's worked.

I will say the actual reason I knew I needed to leave the public defenders is I had been in just like back-to-back trials, really difficult clients. I was traveling all over the state. At the time, I had a fully traveling calendar. So I was doing cases all over Alaska and spending a lot of time in hotels. And there was an attorney in the office that unfortunately got hit by a car when he was walking to court. He was fine. But I remember hearing that and being like, oh, that would be so nice if I got hit by a car walking to court. And then I was like, might be time to reevaluate what's going on here.

Kyle McEntee:

I like and appreciate the dark humor here.

Devin Morse:

Yeah, which comes from being a public defender.

Kyle McEntee:

So what did the learning curve look like with this transition? You talked about you were starting a business coming from a large public agency that's so different.

Devin Morse:

Yeah, it was. Well, I will say we left with some contract cases from the public defenders. Both Jaffer and I took cases that we had previously had and been working on. So thankfully, there was a little bit of a buffer of money, basically, for us to do things. I left the agency before Jaffer did and spent a lot of time sitting at coffee shops, playing around with QuickBooks and downloading litigation software and doing all of the things that I could think of in that sense to start the business side of things. We thankfully have a great criminal defense community here. So we talked with them quite a bit about what this actually looks like. But realistically, we rented a co-working space. We bought some computers. And then we went to work one day and had a website and told everybody that we could that we were doing this. And people started referring us cases.

The business side of things has been a huge shift. I've never once had a conversation with anyone about money for 10 years. I've never billed. I've never kept time. We didn't have to do any of those things. And so that has been, I would say that I'm probably the worst of it out of the three of us. And thankfully, we all sort of figured out what our strong suits were, just trial and error, and have all sort of taken on different roles in the business.

But we had to set up a 401k, which I don't even know what a 401k is, and do all sorts of things like that that you just don't think about when you walk away. We have to buy health care. So it has been a huge, huge learning curve in that sense.

But practice-wise, cases are all the same. So at least we weren't jumping into not knowing what we were doing. I will say we started doing family law and taking some divorce cases, which is a whole different kind of law.

Kyle McEntee:

But that was after a few years of just criminal work.

Devin Morse:

Yeah. Now we're all doing it. And I've done some adoptions, which are the best thing ever. I wish I could have a full practice of adoptions. And we've done a handful of other little things like that. But the main other practice area that we are getting into is family law, which is different from criminal in the sense of it's not just one incident. It is nonstop incidents. And you can have a client for 18 years, potentially. So that's been a learning curve. But when you come from doing the kind of cases that we've been doing, and you know how to be in trial, and you know how to appear in front of a judge, it's a little bit easier than somebody moving on from being a contracts attorney.

Kyle McEntee:

So you had those initial contracts with the states where it would funnel you some clients. And that was good. That was money in your pocket. You probably didn't have to think about how you were charging for that. It was probably just a prearranged deal, right?

Devin Morse:

Oh, that was just flat. Yeah, flat fee from the state, depending on what.

Kyle McEntee:

Then what happened when you're like, all right, I need to figure out how do I charge clients? There's a handful of options out there for approaches, in particular in the criminal defense space. How did you decide?

Devin Morse:

Yeah, so we talked to, like I said, very small legal community here. And there are about three firms of criminal attorneys that we know, respect, have grown up with, sort of mentored us. So we talked to all of them as to how they do things. And they all gave us the same advice, which was no flat fees, just charge by the hour. So we don't do any type of flat fee stuff. We only take retainers and bill against that.

That's sort of what we've done from day one. We talked to everybody. We talked to civil attorneys and criminal attorneys about how much they were charging to make sure that we weren't charging too little or too much. I'll say that I'm still mind blown that people can afford lawyers and that people pay what we charge because we are very expensive. But they do.

Kyle McEntee:

Well, just to be clear, people can't afford lawyers. There's a major access to justice problem, right?

Devin Morse:

Yes, yes, yes.

Kyle McEntee:

But it is amazing that there are enough people out there to sustain your business of serious crimes in Anchorage, Alaska, not the largest city in the country.

Devin Morse:

When you find out that your kid is looking at spending the rest of their life in jail, you figure it out. And that's another really intense aspect of going into private practice that you don't think about when you're in public practice is, you know, we have people that are cashing out their retirements. We have people that are selling their homes. We have people that are getting money from every single person that they know and probably owing them a debt to afford our representation. And, you know, even when I was a public defender, I'm always going to represent someone to the best of my ability. But it's an added layer of sort of stress when you know that this is not only your client's life that you're dealing with, but it's also a family's livelihood.

And that is something that you need to be very, very cognizant of that I think we are very cognizant of. But it's just a different thing that you don't really think about that, OK, you know, grandma's putting her house up in order to try and save this kid's life. And you've got to do that.

Kyle McEntee:

So another financial aspect of this is structuring your pay and your two partners pay. How did you come to terms with that? Is it what you kill scenario or or what?

Devin Morse:

No. So we talked to a business attorney and made our sort of operating agreement before we started all of this. So, again, talk to a handful of different people about how they did things. What ended up working for us is we're an escort. So we get an equal salary. We all put different amounts into our 401k.

So I guess a little bit different in that sense, but equal salary. And then at the end of every single month, we get distributions. Whatever is left, we keep operating costs and everything like that in our bank account.

But whatever we have remaining, we distribute equally between the partners. We about six or eight months in sort of realized all three of us are in very different situations. I'm single, don't have any kids. My partner that's in Anchorage is married and has type one diabetes and so is paying a ridiculous amount for health insurance, has a young daughter. And then Monique, the other partner, is married. Her husband has health insurance. She has two incomes. So we're all very different financial situations.

And we all had sort of different takes on how much we wanted to work and how much money we sort of wanted to make when we entered into this. And when we got to about six or eight months, we realized that there was definitely a disparity in the sense of how much we were all working. I was bringing in less money than Jaffer was. And so we wanted to make sure that we were in a situation to where there wasn't any resentment. Because at that point, everybody was making the same amount no matter what. So we came up with this sort of bonus structure calculation about hours worked. I should say a caveat.

We do take, Jaffer takes some CJA cases, which are federal appointment cases, to where that's a much lower hourly rate. And then I was spending time learning how to do family law, not taking on the cases. And Monique was still taking some contract appellate cases, sort of pro bono-esque. So we had a lot of things going on in the sense of figuring out the finances. So we came up with a bonus structure about basically how much money came in, hours worked, how much those hours were worth. And then at the end of the year, we do a bonus so that there isn't any of those kinds of things. The likelihood is we're going to start hiring associates. We will have to revamp what all of that looks like once we do that. But right now, we haven't needed to do that. Right now, we're busy enough to where we could for sure bring people on. We're turning down a lot of cases. But making the decision as to how we figure that out is sort of our next step.

Kyle McEntee:

Building this business that you started, it's difficult. It's complex. It's taking you time to do.

The work you do is also heavy and complex and takes years to resolve. What are you doing at the end of the day to unwind and make sure you don't carry the weight of the day's work home with you?

Devin Morse:

I should be doing more. When I was at the Public Defenders, they would do new lawyer training. I was always the person that would do aspects of that, of how to not go crazy.

I would always tell people, use all of your leave. Make sure you go on vacation. Make sure you move your body. Make sure you're not drinking or doing whatever you do too much. I would always preach that. Then I would go home at 5 o'clock, sit on my couch, and pour myself a glass of wine.

So I will say the past however long it's been, two years, have been harder than I expected in that sort of work-life balance-esque. Because you're sitting down in front of a computer or you're in court and you're not moving, but you're so mentally exhausted. You do just want to go sit at home and do nothing.

So I just got a puppy, which has been very helpful, other than the fact that she's incredibly annoying right now. I think staying on routines and doing those kinds of things. I cook a lot. I read. I try and not follow crime. I try and not follow crime podcasts or go down that route, because I think that if that's the only thing that you're doing, it's stressful. And I attempt to travel as much as I can. That's harder when you're in private practice, because you're not getting a salary and your time is money. But getting out of A, Alaska, and B, the courtroom is incredibly important. So I attempt to do that. And I have a lot of friends who are not lawyers that I spend a lot of time with not talking about work. But realistically, I would say I probably don't do the best job of sort of turning off my brain when it comes to this job. It's hard. It's like all-consuming, because it is real people that you know and have a relationship with. And it's their lives that you're dealing with.