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March 13, 2007

Libby's economic version of the trial penalty

I have often written about the sentencing dimensions of the trial penalty (examples here and here), i.e., the large sentence increases that defendants who opt to exercise their right to trial will often face.  But this Bloomberg news article, which is focused on funds being collected for Lewis Libby's defense, discusses a more economic trial penalty already being suffered by Libby:

Libby's bills, including an expected appeal, will run into the millions, defense lawyers say.  Three top criminal lawyers are spearheading his defense. Lead attorney Ted Wells charges about $800 an hour.

"You would have to be an extraordinarily wealthy person for an ordeal like this not to ruin you financially,'' said Bradford Berenson, a white-collar crime specialist at the Sidley Austin law firm in Washington and a former White House lawyer for President George W. Bush. "An overall estimate of $10 million for this whole mess is not unreasonable.''

Though he spent almost five years working in the White House, Libby, 56, is still wealthy from his days as a private attorney.  A federal ethics form he filed in 2005 after his indictment and resignation shows his investments valued somewhere between $6 million and $18.5 million....

Libby is represented by three main attorneys: Wells of the New York-based Paul, Weiss, Rifkind, Wharton & Garrison firm; William Jeffress of Baker Botts in Washington; and San Francisco attorney John Cline of Jones Day. There have been about a dozen lawyers working on the case and attending the trial.

Wells, in an e-mail, declined to comment on fees for the case. He said the legal team will continue to represent Libby in the appeals process.  Meanwhile, Libby's fundraisers, by necessity, will pick up the pace.  Said Washington defense attorney Victoria Toensing: "Not many people have seven figures sitting around in a bank account, particularly those that have been in government service for a long time.''

It is interesting to speculate, aided by hindsight, what it would of cost Libby to plead guilt months ago.  He certainly would be in a better position for sentencing and economically.  But, of course, I am poorly positioned professionally to complain about a lot of monies being paid to criminal lawyers.  I like to be able to tell my students that not all criminal defense attorneys work for slave wages.

March 13, 2007 at 04:06 PM | Permalink


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There is an even deeper question: would have have done better if he had less money?

1. Would an attorney (or attorneys) from the Federal Defender have been better positioned with regard to criminal procedure in D.D.C. As nice as BIGLAW sounds, even the most well-qualified of large lawfirm attorneys don’t have the day-to-day trial practice that public defenders do. On the other hand, in white collar cases, firm attorneys probably are "better" pre-indictment. But, they obviously failed for Libby (but succeeded for others).

2. If Libby had less cash, would a private attorney from a smaller firm billing time at less money per hour been more likely to advise taking a plea, knowing bills over a certain amount would never be paid.

Posted by: S.couts | Mar 13, 2007 4:16:51 PM

The thing that strikes me is that the trial judge works all year for less than $175,000.00.

Maybe it would have been cheaper to find three (3) federal judges and offered them each a flat $1 million to resign and work on the case through completion.

As a criminal defense attorney I know that even missing one (1) months trial term sometimes makes you a little rusty. At $800.00 an hour I cannot image that Ted Wells has that many trials. Just paying a lot does not get you get better results, but I will say DO NOT be afriad to pay for experts and support. The attorney needs to have a lot of experience and constantly be in trial.

Posted by: MIchael Hadley | Mar 13, 2007 9:12:34 PM

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