Advocating for Criminal Clients
Criminal clients are different than most clients in other practice areas. A criminal defense lawyer like Robert A Dodell Attorney could help stop the client the loss of liberty and loss of livelihood, a daunting proposition for anyone to deal with. With criminal clients, it is crucial to keep them informed about their case as much as possible to avoid panic. At all times during your representation the attorney-client relationship must remain stable, prompt communication will go a long way to maintaining this relationship. If the relationship breaks down it may present malpractice claims or appeal issues in the future.
It is important to remember there is a fine line between zealous representation and taking actions in which would be interpreted as unethical or illegal behavior. Be very aware if you are getting too close to a client personally. Because you should avoid creating personal relationships with criminal clients, it’s not a good idea to socialize or fraternize with them. If you become friendly with criminal clients, they may expect you to do things that are unethical or illegal for their case; your kindness may be mistaken for a willingness to do anything for them. Remember that your client may be actively monitored by law enforcement during the case and as a result, you might be monitored or recorded as well – this tends to occur in larger cases involving drugs or financial fraud. Practice restraint and although it may seem obvious, personal or sexual relationships with criminal clients is a seriously bad idea. While socializing with clients in other practice areas may seem like a part of the job description, criminal clients are different. The utmost professionalism is owed to your client, especially when their life and/or liberty are at stake and personal relationships tend to complicate things in advocacy.
Types of Clients
There are certain types of challenging criminal clients you can expect to come across in your practice. While some clients will pay their bills and recommend you to others, there are some clients you should avoid because they cause more trouble than they are worth. They can all be problematic and the conflict will always be there, the key is not to let the client get away with the associated behaviors:
Scared clients cannot handle the fact that they are in legal trouble. They cannot grasp simple legal processes and you must spend your time consoling them for every court appearance. For scared clients, you have to remind them how to talk to the judge or police officers, court personnel and staff. The fears grows and they are more upset every time you meet in court. As a result of this, they leave all legal decisions to you and you better hope and pray they accept the outcome – or else you will be hearing from them again, soon.
The most common criminal clients are the angry ones. They believe they should not have been arrested, nothing is their fault and they did nothing wrong. Angry clients will blame everyone: judges, the victim(s), professionals, police, etc. and they may even blame you when an undesirable decision is given. It’s best to lower expectations with angry clients, look to surprise them with a good outcome avoiding the inevitable argument or lawsuit over an unexpected verdict. These clients are always angry whether it be in your office, on the phone or at the courthouse.
Dreamers lack an awareness and are not grounded in reality. These criminal clients tend to lean on a conspiracy theory and they will harp that their legal issues are no big deal. The biggest problem with these clients is they have unrealistic expectations about their situation. For example, in a minor drug case a defendant asks his lawyer to subpoena the President because the CIA sold drugs in America (which is clearly irrelevant to a minor drug case) – they will seek subpoenas from several government officials especially the CIA. A medical professional might be needed to examine these types of dreamer clients to see if they are even fit to stand trial. Document everything when working with criminal clients like these, protect yourself from future claims that you were ineffective counsel because you were unwilling to comply with outrageous or illegal requests.
Schemers are the most dangerous and the most likely to get you in trouble with authorities. Schemer clients believe they have a way out of the case. They will want you to help them and they are willing to commit another crime to get out of their current case including witness tampering, unlawfully recording conversations and they will even attempt to record you in order to blackmail you unless they get off. Most of the time they will want you to get involved in criminal activity yourself because they will do anything to get out of trouble. Try to meet these criminal clients in court, avoid meetings at your office.
A suer is easy to spot: if any person who has sued their attorney in any type of case it should be a big red flag and you should be very weary of taking on this client. Usually, these criminal clients will sue their attorney in Small Claims Courts and they love to show off their legal knowledge. These clients are waiting for you to give them bad advice so they can sue. Do not take this client, you will end up in front of a judge and even if the claims are dismissed, it is a major waste of your time and resources. Avoid suers at all costs!
The most litigated area between clients and attorneys is fee disputes. Fee disputes are sadly, extremely common and cannot be prevented. Fee disputes are second only to a failure to return phone calls as the top reasons for bar complaints. Once a fee dispute has been reported the State Bar Association or Ethics Board will want to see the amount of work that you did, how you did the work, and how you billed the client. Therefore the key to surviving a fee dispute with a client is documenting everything! Be organized and keep documents filed properly and easily accessible.
In order to avoid fee disputes, always discuss fees up front before any work has been done. If fees are not outlined ahead of time and you begin working for the client, only a judge can let you off the case and they are unlikely to do so with criminal clients. A good way to approach fees and payment of fees with a criminal client is using a payment plan. You don’t want to work for free but you have an obligation to defend your clients, have them read and sign the payment plan so everyone is on the same page.
Whether to charge hourly or a flat fee will depend highly on the case. If there is a claim of massive financial fraud, charging hourly is likely the best way to be paid; if the case is something you have extensive experience in (i.e. DUI case) and you know what type of work the case consists of, you can charge a flat fee. If you charge an hourly rate, the retainer can be exhausted and more money will need to be added and this should be expressed in your fee agreement. Always let your client know if there are additional fees for experts, copies, mailings, investigators, etc.
Clients have baggage, people in their lives that care about and love them. There is usually a family member(s) that deeply care for and worry about the defendant in a criminal case. They need to be kept up to speed on the criminal client’s case, they are there to help keep your client calm and provide guidance and they may be the one paying the bill. You must seek written permission from your client to speak with this person about the case before filling them in on any details or information about your client’s case. With permission, you should answer these family member’s phone calls, keep them in the loop, have them present in meetings as they may have influence on client decisions that control the outcome of their case. However, just because they are a client’s spouse or parent does not mean you have to talk to them. Remind the non-client client of ethical rules preventing you from discussing the client or case without permission but be professional and polite. Use them as an ally and stay on positive terms, you have the same interests in the end.
Not Returning Phone Calls
The top reason for reported bar complaints from criminal clients is a failure to return phone calls. You should be keeping your criminal client apprised of what is going on in the case at every point. They are most afraid of uncertainty, you should prepare them for what to expect and be honest with them as they deserve your honest evaluation of their case. Send your client a letter confirming issues you agree on and nail down larger issues up front. Sending letters memorializes and documents your communications avoiding potential issues or claims in the future.
Potential Trouble Areas
As discussed above, fee disputes is an area of potential trouble for you or your practice. When the client doesn’t feel that the lawyer is doing anything or isn’t doing enough to help their case. Criminal clients pose trouble for the attorney because you can’t properly defend the case. However, a criminal client’s lies will not hurt you as the criminal defender. Clients that think their lawyers should know everything can potentially cause trouble when they learn you are not all-knowing, you can’t think for the judge or read their minds, you can’t help how the police behaved- you are doing your best and that’s what is required of you. In certain circumstances, it may be a good decision to just fire your criminal client; you must express the reasons you cannot be the attorney on the case. It is rare, but it does happen.
Managing criminal clients can be difficult, but there are good clients out there and you are helping them in a time of crisis. Remain professional, polite and do what you can to get the best possible verdict for your client.
How To Earn CLE Credit on this Topic
For additional information on this topic, Attorney Credits offers a course titled “Criminal Law: Ethically Managing Criminal Clients.”
The course is available for CLE credit in the following states:Arizona (AZ) | California (CA) | New York (NY)