Criminal defense lawyers have an obligation to serve their clients to the best of their abilities. Unfortunately, not all of of them do. Here are the ten mistakes no criminal defense lawyer should ever make:
1. Never over promise and under deliver.
As a criminal defense lawyer, you literally have your client’s lives and freedom in your hands. Just because you think a result should be so doesn’t make it so. If you are not sure of a result don’t tell your client it will happen. Defendant’s that have their freedom, livelihood and possibly their lives in your hands can not emotionally afford to be let down.
2. Don’t make stuff up that you are no sure about.
Whether if be the law or a procedural issue, don’t tell a client something that you are not certain about, and if you aren’t certain about something, tell your client that. In this day and age, clients have access to a zillion online resources and probably have more time to research things than you do. Don’t get caught telling a client something if it isn’t absolutely the case as that is a sure-fire way to lose your client’s trust. “I don’t know but will find out” is always a good answer, unless of course it is a legal or procedural issue you as a criminal defense lawyer should know the answer to.
3. Don’t ignore your clients calls, texts and/or emails.
If you decide to take on a client, you must take on all the excess baggage. More likely than not your client is petrified, not sleeping, possibly drinking and/or taking pills and/or medication to calm their nerves. If your client contacts you with a concern and/or question, you as their lawyer need to respond regardless how annoying the client may be and/or how stupid you might think the question or concern is. You decided to take on the client and the client deserves a response to their queries. Of course you can set up boundaries that unless it’s an absolute emergency they can’t call you at 3 a.m. Or that you have a life and other clients and that, but for emergencies, you are only available during work hours BUT you must, in a timely fashion, respond to their queries. It’s perfectly acceptable to respond “I can’t talk right now but call me at 5 p.m. tonight or tomorrow morning at 9 a.m.,” but simply ignoring your client’s queries in unacceptable and if you can’t or don’t want to respond you should not have taken on that client.
4. Until you really know the case cold, don’t even think of mentioning the words “plea bargain” to your client.
We all know that the system isn’t fair and prosecutors use the threat of excessive prison time in order to get guilty pleas and convictions, regardless of the guilt or innocence of the defendant. Prosecutors have no interest in guilt or innocence they just want convictions by whatever means. However, your client doesn’t know this and the thought of pleading guilty to something he or she may be innocent of is beyond most people’s comprehension and sense of right or wrong. Once you know all the facts and the politics of the case, a plea bargain may be the best option for your client regardless of their guilt of innocence. However, the thought of a plea bargain should not be brought up to your client until enough time has passed for you as their attorney to really understand all the facets of the case, both factual and political, so that you can truly make an informed decision on whether the risks of going to trial and losing outweigh the downsides of a shorter sentence in a plea bargain. As a criminal defense lawyer, your client hired you to go to trial if that’s what he or she wants, so you better have really good explainable, valid reasons before you present the idea of a plea bargain to your client.
5. Don’t presume that your client is not smart enough to understand the law and all the “whys” behind your decision-making process.
Your client deserves to understand every step of your decision-making process, and you should be able to explain it to him/her. Just because your client is a layperson and not a lawyer, or even if your client is a lawyer, they need to understand completely how you got from point A to point B. The law is not physics or rocket science and if you are a good lawyer you should be able to explain your decision-making process in a way and manner that your client can understand. For example, if after really taking the time to study every aspect of the case you have come to the decision that your client should enter into a plea agreement, you better be able to explain your “why” thoroughly in a manner your client can understand. Far too many criminal defense lawyers assume they don’t need to explain the details of their thought process to their clients. Don’t be this kind of criminal defense lawyer.
6. Never ask your client if they did it or if they are guilty.
Although you need to impress on your client that they need to tell you the truth about everything so you won’t get blindsided and can plan the appropriate defense based on all the facts, whether your client is guilty or innocent has nothing to do with your job to use all possible legal and ethical means to put on the best defense possible. I remind us all of the infamous OJ Simpson trial. The “Dream Team” knew they had a mountain of evidence against them so they put the L.A. police department on trial and put on a brilliant and strategic defense that worked. Regardless of whether OJ was guilty or innocent, it was their job to put on the best defense possible.
7. Never tell your client “its not your job to do something”.
Defendants have a litany of problems outside the legal and procedural issues they hired you for. Obviously you can’t solve all the problems they are going through as a defendant but you are probably their major life line. Your client may be dealing with bail, incarceration if there is no bail, an unreasonable pretrial services officer, an unreasonable probation officer, being designated to the wrong prison, being unsafe in prison, not getting adequate medical care while in prison, as well as a myriad of other issues. If you can legally, ethically and strategically help your client with a problem, it is your job to do so. If you just can’t help a client with a problem they are having you not only need to explain to them why you can’t help them, but you need to give them suggestions of how they can find ways to help themselves. That is your job as your client’s criminal defense lawyer, so don’t shirk your responsibilities.
8. If the relationship between you or your client has completely broken down, do your client a favor and ask your client and judge if you can be removed from the case.
Like all relationships in life, sometimes the relationship between you and your client can break down to the point where you simply can not effectively represent them anymore. Many lawyers make the mistake of staying on the case even after the relationship between them and their client has become so dysfunctional they can no longer effectively represent their client. The usual reason lawyers stay on when they should resign is that they do not want to piss off the judge as judge’s to not like when lawyers resign from cases because it prolongs the case while a new lawyer gets up to speed with all the facets of the case. Regardless of how pissed off the judge may get, your duty is to your client not the judge, and you should find your client another appropriate lawyer so that your client can get the best representation possible.
9. Never give your client false expectations about how much their case is going to cost.
Criminal defense work can be very expensive. Plus, its your duty to go to trial if need be. The government has unlimited resources and all the advantages in a criminal defense so it is your duty to be upfront and completely transparent and honest with your potential client as to how much approximately each phase of their defense will cost them. Just as lawyers hate surprises, so do clients, and your potential client deserves to know up front what you will charge them for each phase of their defense so that they can make a fully informed decision as to whether you are the right lawyer for them and whether they can afford all the aspects of a defense.
10. If you were a prosecutor before becoming a criminal defense lawyer, don’t use that as a selling point to your client.
Most prosecutors that go through the revolving door of moving from the prosecutor’s office to the defense side use their years of experience as a prosecutor as a selling point to their clients and prospective clients. The fact is that this is not an advantage and could in fact be a huge disadvantage. If you were to practice defense law in the same district that you were a prosecutor, yes you may know the folks in the prosecutor’s office but that certainly doesn’t make you a good defense lawyer. The two forms of law are completely different. I’m not saying that being a prosecutor first will make you a bad criminal defense lawyer, my point is that it is not enough to give you an innate advantage to brag about to your prospective clients.
If you or someone you know is entangled with the criminal justice system, contact Lawrence Goldfarb Criminal Justice Partners today. Our prison consultants can walk you through essential details you would never otherwise know.