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Bar News - January 15, 2014

Criminal Law: From Public Service to Private Practice


Longtime public defenders Ted Lothstein and Richard Guerriero, now in private practice, compare and contrast the legal sectors

Ted Lothstein

Richard Guerriero
Editor’s Note: Since last May, veteran public defenders Ted Lothstein and Richard Guerriero have been partners in private practice, after spending most of their careers in public service. Ted was an attorney with the New Hampshire Public Defender for 10 years. He then worked at the Appellate Defender for four years, before launching a solo practice in 2008. Richard was with NHPD for nearly 20 years, including 12 as litigation director, before joining forces with Ted last spring to create the small firm of Lothstein & Guerriero.

As partners in private practice, after spending most of our careers working in public service jobs, we often reflect on those years and how they compare to practicing law in the private sector. After all, we started work at the NH Public Defender program on the same day, beginning the NHPD’s new public defender training program together in September 1994, and we were even partners for the training exercises on that first day.

Here, we share our respective thoughts on private practice versus public service work, and on moving from a huge institution – NHPD is New Hampshire’s biggest law firm - to a small-firm practice environment.

Translating NHPD Lessons to Private Practice

Lothstein (TL): From the moment of my arrival, I learned at NHPD that we can’t do our best work unless we immerse ourselves in a community of talented and dedicated professionals that promotes and upholds high standards of excellence. Within that community, we can hone our craft and gird each other against the turbulence and pressure and exhilaration and heartbreak of the justice system (sometimes, all of those within the same day). That is what I found at NHPD. When I joined, I was just a year out of law school and had just finished a clerkship with a Justice of the Connecticut Supreme Court. These experiences honed my research, writing and analytical skills, but did not prepare me to be a trial lawyer. NHPD put me through over a month of in-house training, sent me to weeklong trial advocacy courses, and most importantly, provided amazing role models and mentors that have become the closest friends of a lifetime. I had the honor and privilege of trying cases around the state with some of New Hampshire’s best lawyers.

Success in private practice, I have found, comes from continuing to uphold those values - being active in the Bar, attending and presenting CLEs here and around the country, mentoring younger lawyers, brainstorming cases with colleagues, asking others for help and guidance when needed. These are not just “the right things to do” in private practice – these are the things that bring us clients and cause our former clients to return (yes, unfortunately, there are “repeat customers” in criminal defense work). I was fortunate to have been steeped in those values at NHPD.

Guerriero (RG): I got all the same great training and support from NHPD. Ted describes the benefits of the program perfectly and I cannot really add to that. However, my situation was different from Ted’s in that I had been an attorney in private practice in Louisiana. In addition to private criminal defense work, I did a lot of court-appointed work in state and federal court in Louisiana. I also served on the board of directors for the local public defender.

I can’t speak to current practices in Louisiana, but 20 years ago, Louisiana and New Hampshire were different worlds. To offer a few comparisons, in Louisiana it was not unusual to go to trial in a homicide case within a few months after the case started. There was no “open-file discovery,” as there is here, so the only discovery the defense received was affidavits for warrants, expert reports, and anything the prosecution acknowledged might contain exculpatory information. Louisiana also had elected judges, which for me, as an attorney in private practice, put an entirely different “spin” on things. When I got to New Hampshire and NHPD, I was quite happy to find a different state of affairs. At NHPD, and in New Hampshire courts, I got a very quick indoctrination in the “New Hampshire Way,” meaning everything from assenting to reasonable requests, to being open about discovery, to the realization that not all “local” practices are bad. In short, NHPD not only made me a much better lawyer, it made it possible for me to transition from one legal world to the next. If I had tried to go directly into private practice after arriving here from Louisiana, it would not have been a pretty sight.

Running a Business: Who Has Time for That?

RG: Billing. Billing. Billing. The great benefit of being an attorney in public service is that you are able to simply work on your cases without having to run a business that is self-sustaining. To be sure, efficiency and costs play an important role in public service, especially if you have an administrative position, but it is nothing like the focus one has to have in private practice in order to stay afloat. Although I had been in private practice before, I had conveniently blocked out the stress and tedium of the “business” side of things. And I conveniently forgot how much time – unbilled time – is involved in running a business. Fortunately, Ted left NHPD several years before me and developed a great practice model that I was able to step into.

Tools of the Trade

RG: On the other hand, there is a lot more freedom in private practice. I have particularly enjoyed being free to use technology without the barriers that come with a large state institution with limited funding. It makes my life much easier to have the computer I want, with the software I want, the security I want, and the systems I want. I have long had an interest in the tech side of law practice, so to finally be able to have exactly what works best for me is a great relief.

Client Intake

TL: I find that the biggest difference between public service work and private practice is the intake process. An enormous amount of our time is spent fielding calls and meeting prospective clients in what has become a very competitive and sometimes ruthless business. Because of the “bowling alone” phenomena of modern life (social isolation), many prospective clients arrive with no referral from a trusted person and no real concept of how to choose a lawyer. We spend many hours educating them about the criminal justice system and attempting to build trust, and these hours are often uncompensated (e.g., the person cannot afford a lawyer or their objective proves unattainable).

The intake process also provides a source of fulfillment that has no analogue in the life of a litigator working for a public service institution. After five years, I find it no less remarkable or gratifying, to have the frequent experience of meeting a complete stranger in my office, counseling them through what might be the darkest moment of their life, and then being handed a check, an expression of trust that I will never take for granted.

What We Miss About NHPD

RG: The thing I miss most about NHPD is the daily contact with colleagues from around the state, all doing the same work with the same goal. Having had a long exposure to a different indigent defense system and criminal practice in another state, I have to say that no one should take NHPD, or New Hampshire for that matter, for granted. Sometimes daily conflicts lead us to generalize or complain about what we have. When I have those complaints, I try to remind myself that I have been lucky to end up working in the court system here, first in public service and now in private practice.

TL: I miss the friendship, camaraderie and sense of esprit de corps that we had at NHPD. I miss the daily banter around the water cooler or at the local Chinese restaurant – often as funny and as punctuated by biting satire as an episode of The Daily Show – about clients, cases, prosecutors, judges and whoever else might show up from the criminal justice system that week. And finally, I miss the weekly case conference, where we would make fun of each other’s half-baked defense theories – while building a better defense that might actually win!

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