client interview
Criminal Cases
copyright © 2000 Ray Moses
all rights reserved
"The patient has no more right to all of the truth than he has to all of the medicines
in your saddle bag. He should get only so much as is good for him.
Oliver Wendell HolmesGood counselors lack no clients.
Shakespeare (Measure for Measure)Lawyer: A person you hire when you've murdered someone and
you want it explained in the best possible light.
It's better to be a mouse in a cat's mouth than a client in a lawyer's hands.
Spanish ProverbYou don't have to admire your clients in order to defend them from injustice.
The trouble with fighting for human freedom is that one spends most of one's time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed,
and oppression must be stopped at the beginning if it is to be stopped at all.
H.L. Mencken Time is money.
"I know you are anxious to talk about the case and tell me what you know and don't know.
That's natural. But this is not the point in time for that discussion. In the near future,
we'll sit down and go over everything you know about the case. But, for right now,
the main thing I'm concerned about is what evidence the prosecutor might have.
So the only thing I want you to tell me here today is what you think the prosecutor
is going to say you did. What do you think their story is going to be?"
A criminal lawyer ushers her client into the office and points at a huge sailfish
mounted on the wall. She asks, "Do you know why that fish is there, Ralph?"
The client says, "No, ma'am, I don't."
The lawyer explains,"Because he opened his big mouth!
I want you to remember that fish, Ralph, because you'll be hanging on the wall
of the prosecutor's office if you go around opening your mouth about this case.
Do you get the point? Don't talk about your case with anyone except me."
If you haven't spent a lot of pretrial time talking with your client,
don't announce ready for trial - unless you are willing to serve his sentence.
[For information about relationship building in the attorney-client dynamic, read: Interviewing and Counseling Clients in Criminal Cases.]
Contents:
Clients Make Your Job Possible
You are a criminal defense lawyer because accused criminals need and deserve a defense when targeted by the government for prosecution. If there were no clients, there would be no successful defenders. When you are considering interviewing, never forget, it isn't about you. It's about your client!
The Client's Perspective
By nature many trial lawyers are argumentative, egocentric workaholics. (Stats also say that about 15 to 18 percent are also problem drinkers or alcoholics, almost twice the percentage for the general population.) These traits sometimes conflict with the ability to display empathy for clients. Yet, empathy must play a part in the interview process.
As one of your first steps to becoming an effective communicator, put yourself in the client's shoes (1). Think about the process from the client's standpoint. Irrespective of whether s/he committed the crime, there will be tensions. The first thing you should ask yourself as you think about how to conduct an attorney-client interview is: " What would I look for in a lawyer, if, by some wicked twist of fate, I was accused of a crime?" Sit down at your desk and list the traits. [Note: If listing the traits of a good interviewer is too hokey for you, try this exercise in guided imagery: Turn out the lights, close your eyes, and imagine that you are lying on the side of the road, injured, and unable to see or move. Your face feels wet. You taste blood in your mouth. You know that you were just in a major traffic accident. How do you feel? Someone touches your hand. A voice says, " I'm a paramedic. Squeeze my hand if you can hear me." What do you want this paramedic to do and say? What traits do you want this paramedic to have? Caring, skilled, compassionate, knowledgeable, confident, comforting, responsive to your unspoken concerns, interested in saving your particular "sorry-assed" life, etc? Now, transfer yourself into the shoes of a person accused of crime. What traits would you want your lawyer to have? No doubt, some of the very same ones that you would want in the paramedic, plus others like energetic, enthusiastic, take-charge, willing to return phone calls, willing to keep you informed of how your case is going, providing enough detail, responsive to your questions, etc.?] Do you see that the client will always have deep, though unspoken, emotions that will flavor the interview. If your lawyer can't promise you that jail or prison isn't in your future, how would you feel? Why go through the mental gymnastics of trying to figure out what a client would want in a lawyer? You do it in order to shape yourself to respond to the needs of your client - a vital skill for success as a lawyer and one you are not typically taught in law school.
Your client is going to be concerned with whether you can get him out of the jam he's in. S/he wants to know if s/he can trust you. S/he wants to know if you have the skill, experience, and common sense to get the job done. S/he wants feelings of rapport, safety, and realistic hope from the person who will champion her cause in court and in negotiations. Ignore these factors and you risk dealing with a disgruntled client. [Wouldn't we all prefer a "gruntled" client - gruntle meaning put in a good humor.]
Lawyer-Client Confidentiality
Plan how you are going to explain confidentiality (1), (2). Consider the usefulness of giving your client a written explanation of the requirement of lawyer-client confidentiality, as well as explaining it orally.
Notice that the lawyer's duty of confidentiality extends to the first interview, even if the lawyer doesn't take the case or the client decides not to hire the lawyer. Explain to the client that the rules of confidentiality extend to the initial consultation, regardless of whether the client decides to engage your services..
There are two rules that govern the confidentiality of lawyer-client communications, namely, (1) the broader ethical rules of confidentiality, see Ethics, and (2) the more narrow rule of evidence dealing with the attorney-client privilege.[Note: You find the evidentiary definition of the Texas lawyer-client privilege in Rule 503 TRE.]
It's a good idea to advise the client of the confidentiality of communications at the very beginning of the consultation, e.g., "Before we talk about your situation, I need you to know that what we say here is confidential. It's between us and doesn't leave the room. There is a rule of evidence that keeps anyone from forcing me to disclose what you say to me. It's called the attorney-client privilege. There are also rules of ethics that prevent me from telling anyone what we discuss. So, you can talk with me about your case, without worrying that I will repeat what you've told me. Do you understand?"
In most cases it is probably a good idea to also say, " At this point, I need to know enough about the case to start helping you. But, right now, I don't need to know everything you know. For example, I don't need to know, and I don't want to know, if you are guilty or not guilty. What matters to us is what evidence the prosecutors have against you. They have the burden of proving you are guilty. You don't have to prove you are innocent. So, the first thing I will do, if you hire me, is to start finding out what evidence the prosecution has. Then, and only then, do we start figuring out how we can attack their evidence. Do you understand?"
Fees for Your Services
It's been said that only three things work for free - a mule, a tool, and a fool. A dumb saying? Yes. But the message rings true - it takes money to survive in the business world. A private law practice is a business. Your fees allow you to operate your law office and earn a living. (1 - Good Fee Agreements Make Good Clients) You'll typically need to discuss your fees and expenses in your first interview with the paying client. Clients will want to know what the fee will be and how the payment will be structured. With regard to the amount of your fees, you must figure out how much you need to charge clients in order to make the amount that you need to make. Calculating how much you need to earn for each hour of work you expend is not difficult from the standpoint of the math. Simply figure out how much you must gross each year, and divide your billable hours into that amount. You'll have a good idea of what your billable hourly earnings must be. Multiply by the estimated number of hours that the case will take, and you have the estimated cost to the client. Of course, if there are additional anticipated expenses, costs, or fees for investigators, travel, expert witnesses, etc, chargeable to the client you need to explain that such amounts will be added to the fee.
The rules of professional conduct require that the fees you charge be "reasonable." See Rule 1.5 ABA Rules of Professional Conduct. See Ethics. You should not enter into an arrangement for, charge, or collect an illegal or unconscionable fee, i.e., a fee that a competent lawyer would not reasonably believe is reasonable. That's a lot of "reasonables." Several factors are taken into account in determining whether a lawyer's fee is reasonable, i.e., the time and labor involved, the novelty and difficulty of the question involved, the skill required to perform the legal service properly, the likelihood that acceptance of the fee will preclude other employment by the lawyer, the fee customarily charged in the locale for similar legal services, the amount, the results obtained, the time limitations imposed by the circumstances and/or the client, the nature and length of the professional relationship between the attorney and the client, the experience, reputation and ability of the lawyer, and whether the fee is fixed or continent. (Remember, fees in criminal cases cannot be continent upon outcome.) If the client's ability to pay is of relevance to you in setting a fee, you may be interested to know that the estimated sales value, home size, number of bedrooms and baths, and aerial view of many (some 48 million of the 85 million total) single family homes are readily available on the web, if you know the address and zip code. The median error in the figures provided in this web site is estimated to be 7-8%. See Ethics for further information regarding attorney's fees and the Rules of Professional Conduct and advisory ethics opinions applicable in your state.
What about the payment structure? Decide the way you will collect fees. Will the format be in the form of a flat fee or on an hourly basis? Will you require the client to pay an advance payment (not a true "retainer")? Will you have a fee contract or a letter agreement? Plan how you are going to explain fees. Be prepared to describe the time line from the start of the case to its trial disposition. Consider giving the client something in writing, e.g., a handout, that explains the general way you calculate your fees. Tell the client how much you charge, the customary terms of your fee agreement, and how you bill your clients. Make sure your fee agreement, in whatever form, is in writing. [Note: You will find a sample fee agreement on the motions diskette and at the very beginning of the monograph on Pretrial and Trial Forms and Motions. The State Bar of Arizona provides a general cut-and-paste civil law fee agreement (1) with many paragraphs.] It's a good idea to think about fees from the client's perspective. For further information about attorney's fees, see Ethics. For information about time records, see Law Office Management.
May a third party pay the legal fee of your client? The typical answer is yes, provided that the client consents, that it doesn't interfere with the attorney-client relatinship or the lawyer's independent judgment, and that the requirements of client confidentiality are presearved and maintained. See your state in Ethics.
If you want to maintain a mutually satisfying attorney-client relationship, take time to explain your fee to the client in the context of the efforts you will be making in handling the case. This requires an explanation of pretrial investigation, formal and informal discovery, conferences, obtaining expert assistance, selecting a jury, cross and direct, and jury argument. Let the client know the scope of the representation. Make sure the client knows whether your agreement covers disposition in the trial court only and does not cover appeal. Explain whether you charge more for cases involving a trial. How much more, e.g., additional $1500 a day for each day of trial? [Money is what it takes for you to practice law, but, for goodness sake, don't be one of those silk-stocking lawyers who only smile for the photgrapher when she says "fees."]
Setting the Table
There will be constraints on the amount of time that you can devote to initial consultations with potential clients. Decide if you will charge for the initial consultation. Most defenders don't charge for this initial consultation. Decide how much time to block out for each meeting with a client. Once you are engaged, you may want to keep certain meetings unrestricted insofar as time limits.
How do you prepare for the meeting? What is your office layout? Do you have a brochure describing you and your practice? Do you have an "ego wall" adorned with diplomas, awards, plaques, medals, newspaper clippings about trials you have won (In Texas, it's called, "pigs I have stuck."), photos with you and celebrities and or well-known politicians, photos of yourself being awarded a big trophy, photos with you and family and pets, photos of you in your robes when you served as a part-time traffic court judge, photos of you doing risky, adventurous things (Hang gliding, wind-surfing, riding a wild Brahma bull, jumping an 18-wheeler with a motorbike come to mind.)? Have you arranged the office so the client sees your "ego wall" before the client sees you? Is there a place in your interview area that provides privacy and comfortable seating? Do you plan to take notes during the interview? Is there a writing area? These are a few of the considerations that must be addressed well before the actual client interview.
Arrange the your office setting. Don't have the contents of files of other clients within eyeshot of the client. Clear off your desk. Place chairs in the position that will facilitate open unfettered communication. Let your client hear you tell your secretary to "Hold my calls."
Logistics of the Interview
You will need at least four things from your client: trust, information, direction, and a written fee agreement. How do you build trust? How can you conduct yourself so your client has belief in your fidelity and your competence? How do you create an atmosphere in which the client will find some degree of comfort in dealing with you? In short, what can you do and say to establish rapport?
Does your client's experience level with the criminal justice system influence the way you will sculpt your approach? Suppose your client is an ex-con? What assumptions do you make about a person who has been through the system before? What about the client who has done time in jail or prison? Do the ex-convict client's expectations influence your technique? How?
Think about how you will structure your initial interview with a potential client. Would the constituent parts of the typical interview include any of the following:
- Break the ice. The initial interview will typically begin with so-called ice-breaking. You welcome the client and offer her refreshments. Smile. Introduce yourself, using your first name. Shake hands. If s/he calls you by your first name call him by his. If she calls you Mr/Ms, do the same with her. Then you engage in brief personal small talk or chit-chat where you get the client to talk, e.g., ask him if he had any trouble finding the office or finding a place to park, apologize if he's had to wait, get him to give you a bit of personal background about himself. If you don't know why he selected you as a possible lawyer, you may ask him. If someone has referred him to you, you might briefly allude to that person. You determine any time constraints on the length of the interview. You explain the confidentiality of the discussion you are getting ready to have. Explain your practice concerning fees.
- Listen to the client's story. To be an effective interviewer and communicator, you must employ essential listening skills. (1) Try to get a clear picture of the client's goals and concerns. Tell the client that you are not there to judge him and that your job it to try to get him out of the jam he's in, as painlessly as possible. Let the client know that you are giving him control of the interview at this point, e.g., "The way I like to do this is simply to let you tell me what happened to cause the police to charge you. I'll take a few notes. Then, I'll ask you some questions. Then, we'll try to diagnose what we can do to help you. Will that work for you?" Get the client to give you a narrative explanation of the problem that brings him to your office, e.g., "Tell me about your predicament (or situation)." or "Tell me what happened." Listen and observe. If you listen to someone, you are showing respect for that person. Show the client by your physical reactions that you are listening and understanding what s/he is saying. Don't fold your arms. Lean forward as s/he talks. To show him you're listening and to keep him talking, nod your head up and down, and say "Uh huh," or "I see," or "I understand." Echo back what the client said. Look at the client. Eye contact indicates your interest and concern. Take brief notes to help you with follow-up questions. Note taking also expresses your interest. [Are you a good listener? You can find out by testing yourself at Randall's Listening Lab a site that quizzes your listening skill.]
- Cede some control to the client during the beginning portion of the interview.As mentioned, it may be useful to concede control of the interview to the client at the beginning of the storytelling segment of the interview. This allows the client to get his problem "off his chest" by sharing it with you the problem-solver. Most client's appreciate the opportunity to ventilate their frustrations, fears, anger, and anxieties. [Note: The only downside to the client free rein is that s/he may tell you more than you want to know at this early stage.] After you have heard the client's narrative, summarize it back to the client. That way the client knows that you have been listening to his story, and you know you've understood it. If the client has brought anything to the interview (You may have asked him to bring the papers in his case or some exculpatory item of evidence.), look at it. If the item is documentary, you may want to have copies made for your file.
- Avoid feelings and expressions of negativity and defensiveness that will be barriers to communication. Certain types of client behavior will trigger "blinders" that turn us off. Be aware of the behavioral characteristics of clients that grind on your sensibilities. Guard against becoming insensitive to your client. When you defend persons accused of crime, you have to learn to deal with negative vibes that would otherwise bring down a steel curtain between you and that person. Try to find the good in your client. Everyone has some good in them. Find that good person in your client.
- Watch for "red flags." Certain conduct on the part of the client may be a red flag that will presage future difficulties that you may have with the client. Red flags include the client who is in continued denial, i.e., the person who simply refuses to face facts, the argumentative client who wants to quarrel with everything you say, the hostile client who displays a high level of nonspecific or misdirected anger, the obsessed client who is totally preoccupied with the case and often has a thick file of self-generated gibberish about the case, the client who has already spoken with several other lawyers who have not taken the case, the know-it-all client who professes to know more about lawyering than you do, the passive client who appears to be under the thumb of a companion who typically does most of the talking for him, etc.
- Explore and clarify the client's story. Ask for clarification, e.g., "I'm not real clear on (indicate the subject)," Can you tell me a little more about (indicate the subject)?" "What happened when (indicate the event)?" "How will (indicate the event) affect (indicate the area of concern)?" Give the client plenty of time to answer your questions. Ask questions that inquire of only one new fact per question. If you wish to probe, start with open-ended questions, e.g., who, what, when, where, why, and how, and follow that with specific questions. Be cautious about asking too many narrow closed-end (leading) questions that force the client to make admissions. Avoid judgmental cross-examination in the initial interview. (Confronting the client with the holes in his story comes much later in the case, when you are preparing the client for trial. And even then, you may have a colleague do the practice cross-examination to avoid ill feelings between you and your client.) Never patronize your client. Avoid arrogance.
- Explain why you don't need to know everything now. Tell the client that at this stage you purposely don't need to know too many specifics. Explain that what you want from the client is enough information to understand the problem and begin assisting him. Explain that you do need basic information, e.g., bail information, name, age, address, employment, marital status, membership in oreganizations, social security number, names of witnesses, incidents involving police conduct during the arrest stage, e.g., searches and seizures, polce conduct during any questioning at the police station, whether the client gave a written or oral statement to the police, polygraph examinations, psychiatric problems, etc. Tell the client that you are not going to ask him in this initial interview to explain in detail what his involvement may or may have been. ake it clear that you will have plenty of opportunitiesin the very near future for a sit-down, in-depth fact interview with him later. Don't pigeonhole the client's unique story into a stereotypical category. Avoid questions and assumptions that lead the client to believe that you consider his case as bland and unimportant.
- Explain the legal procedure. Obtain further data to understand the client's plight. Paraphrase what the client said and see if the client agrees. Explain the relevant law, including the elements of the offense, potential defenses, and the range of permissible punishment. [Hint: Look the crime and range of potential punishment up in the penal code before the client arrives. You'll need to know the elements of the crime.] Provide the client with a copy of relevant penal provisions from the penal code, e.g., Texas Penal Code, and procedural code, e.g., Texas Code of Criminal Procedure, both of which codes will probably be found on line in your state. Provide the client with any relevant forms, e.g., a personal data sheet, that you may use for information gathering.
- End the interview with finesse. As the interview draws near to a close, explain what you will do as the client's lawyer. In effect, you are explaining your role as his defender in investigating the case and preparing, planning, and carrying out a defense to the charges. Next, you should try to diagnose the client's legal problem to the extent possible without giving dispositional advice. Be careful about giving dispositional advice, particularly the possibility of negotiated settlement or a guilty plea, too early. Your client will want to know immediately how the case is going to turn out. Don't shoot from the lip. Don't talk about "copping out." Approach the case, at this time, as though you are going to trial. Take time to identify the problem, fully investigate, and strategize before you give firm dispositional advice. Your client will understand why you can only give an initial diagnosis if you explain why you need to assess the situation more fully before deciding on the proper dispositional course of action. Explain the next steps in the criminal justice process. If you know you want to accept the case and the client wants to employ you, finalize fee discussions. In cases where you are retained and anticipate the need for investigative or expert assistance, get advance permission in your employment agreement to incur such expenses. Have the client sign a written fee agreement that clearly sets out the rights and obligations of the client and yourself. In some cases it will be useful to involve the client in self-help with the case investigation. Give the client a task, e.g., doing a write-out of a life-narrative explaining the story of his life in ten pages, getting names of fact or character witnesses, obtaining an item of evidence, taking a photograph, etc. Give the client practical advice concerning legal and non-legal action, e.g., advise him not to discuss the facts of the case with anyone, tell him to explain to people that ask him about his case that you, his lawyer, have instructed him that he is not to talk about it with anyone, etc. Tell the client exactly what you want him to do. Give him a list entitled "To-Dos," e.g., a written chronology of events, a written story of his life. Tell the client to write "Attorney-Client Communication - For My Attorney's Eyes Only" on each page of any writing assignment that you give him. Schedule the next contact with the client. Make sure s/he knows how to get in touch with you. If you have various phone, fax, e-mail and/or pager numbers, give the client a card with the ones that are appropriate. If you have a secretary or paralegal who will be working on the case, introduce your client to that person as their "office contact," and tell the client how to contact that person. Give your client a prepared map to the courthouse that points out where off-street parking is available.
To Take the Case or Not
Do you want to undertake the representation? In some cases, you may not be sure that you want to undertake the representation. Your doubts may arise for a number of reasons, e.g., your caseload, time constraints, lack of rapport with the client, parent's of the client who are paying the fee and want to run the show, client's who insist on micro-managing their case, fee considerations, complexity of the problem, your competence to do the particular job, your interest in the case, investigative hurdles, etc. You don't have to accept the employment. Some clients, particularly those who have had two or three previous lawyers, are walking trouble. They will never be satisfied with their lawyer's effort. If you have any real doubts about whether you can function effectively, don't accept or reject representation of the client during the first interview. Tell the client that you need to investigate the case to determine if you are able to accept it. Think about it and do some legwork. For example, in cases where the client has had multiple attorneys, check with them to see what the problem was. See Practice Tips below. If you can tell at the first interview that this client is walking trouble and that you do not want to undertake representation, politely decline the case orally and by letter. Part of the purpose of the interview is to identify and winnow out the problem clients. It's often difficult to withdraw from a case once you have agreed to act as the client's lawyer. Here's an article about how to screening "unreasonable" clients.
Practice Tips for the Lawyer-Interviewer
+ If you don't want to accept the case, try not to leave the client with nowhere to turn: You are not required to undertake the representation. See (1). As stated above, there are many variables that affect that decision, e.g., your financial situation, the client's ability to fund the representation, your competence level, the complexity of the case, your staff's and your evaluation of the client, ad infinitum. If you decide during or shortly after the initial interview that you will not accept the case, consider providing the would be client with resources that may assist him or her in finding a lawyer. In large cities there is often a local defense lawyers association that provides lawyer referral services. Failing that, you may be able to furnish the names of several competent criminal defense lawyers in the community who might be willing and able to provide the needed legal assistance that the would be client is seeking.
+ Conflict of interest: Conflicts of interest occur when a potential client's interests are materially and directly adverse to the interests of another of your clients, you, or your law firm. Consult your state's Disciplinary Rules of Professional Conduct and the related Comments. See Ethics Before undertaking representation of a person, be sure you do not have a conflict of interest. If any serious potential conflict exists, you may not want to take the case. In certain instances of potential conflict where the client insists on having you as his lawyer, it will be necessary that the client knowingly and intelligently waive the conflicts that could arise out of your representation. Such a waiver would only be made after these conflicts have been meticulously explained. As a precaution, the explanation of potential conflicts to the client should be witnessed and transcribed by a court reporter. Out of an abundance of caution, you may want to make the potential conflict and the waiver known to the court. [Note: Prosecutors who become aware of a potential conflict of interest between the accused and the defender should typically bring this to the court's attention and ensure either that a proper knowing waiver is made or that the representation be prohibited by the court; this is done to make a clean record in the event of a future claim by the accused that the defense representation was ineffective because of the conflict.]
+ Immigration consequences of a plea or conviction : In this day, you need to inquire about many client's immigration status. If the prospective client is not a citizen, you need to know because the disposition of a criminal case may have severe implications on the client's immigration status. For example, a conviction of some crimes will render the client deportable or blocked from naturalization. You'll also need to impress that client with the fact that the attorney client relationship protects the client's confidences regarding his immigration status. If the client indicates that he is a U.S. citizen, follow up by asking whether he was born in the United States or is a naturalized citizen. If the client is not a citizen, ask if the client has any sort of lawful resident status, ask the client if he has any documentation, e.g., a green card. Some clients may erroneously think that because they are married to a U.S. citizen, they automatically become a U.S. citizen. As a lawyer, you must advise your client specifically about the specific immigration consequences of a conviction or plea. For example, will a conviction for the offense charged keep him from getting a green card. It may be that you don't know enough about immigration law to give good advice in your first meeting. If so, tell the client that you are going to research the law to see exactly what his options are and how certain relevant convictions can affect his immigration status differently. Make it clear that any questions about his immigration status need to be discussed before any negotiated disposition of the case. If the case is complicated and the client is able to afford it, you may want to refer him to an immigration law specialist or consult with such a specialist yourself. For more information, read these resources (1 - what you need to know about immigration), (2 - a comprehensive PowerPoint presentation of immigration consequences of criminal proceedings; easier to deal with in narrative form but the numerous slides are worth your viewing time).
+ Motion to substitute counsel: If you are hired and there is a court-appointed lawyer on the case, file a motion to substitute counsel. (You can generally find out if there is a court-appointed lawyer on the case and who it is simply by calling the court-coordinator of the court where the action is pending.)
+ References: Consider providing your client with references. That means getting permission from previous clients to use their name as a reference and to provide your current client with contact information that would put them in touch with the previous client. Because we are talking about folks who have previously been charged with crimes, the privacy issue is dicey. Never release a potential reference's name and/or contact information without getting the previous client's full written agreement.
+ Referrals: Find out how the client got your name. As you become a more seasoned defender, you will find that most of your cases come by way of personal referral from other lawyers, friends, law-enforcement, former clients, courthouse personnel, etc. Do you advertise? Are you active in community organizations? Do you speak before groups of lawyers and/or private citizens? Does your name appear regularly in the media? Do you have a professional web site? (See Law Office Management) You need to know from whence the case arrived. If it was a referral, you may need to thank the source. On the other hand, if the referral came from another criminal law practitioner, you may want to know why that lawyer didn't take the case.
+ Communication with clients who are out on bond: Stay in contact. Make extra efforts that the client will know about. Transmit to your client copies of everything you receive. Much of this can be done by mail; on some occasions, you may need to have an office conference to discuss documents. Provide the client with your work product in the client's behalf. Return all phone calls and/or e-mails of bonded clients within 24 hours. Do it yourself, if possible. If not, have your designated office contact person return the call and either handle the client's inquiry or set up a future time when you will be able to visit with the client personally. (1 - interviewing and counseling white collar defendants)
+ Regular contacts with clients who are jailed - phone calls from jail - admonitions - cautions: Always provide a method for your jail inmate clients to contact you. While you must make it clear that you don't want the client to talk to anyone else about the facts of his/her case, staying in communication with your client is an ethical obligation. Unfortunately, it is standard practice in most jurisdictions to impose a fee on the recipient of collect phone calls from jailed inmates. Phone companies submit bids to the city or county for this business. The governmental entity may even contract to receive a portion of fees. The fee for these collect calls is billed to you if you accept the call. The fees vary across the country from a couple of dollars for the first minute to four or five dollars. It can get quite expensive. Check the cost in your own locale before deciding upon a policy to permit or preclude such collect calls from jailed clients. Most public defenders don't accept such calls. If you don't accept collect calls from jailed inmates, tell your client at the outset. Aside from the expense, one good excuse for not accepting collect calls from inmates is that some jails monitor inmate phone calls through access codes assigned to the inmates. (Monitoring may also depend on the seriousness of the case.) Some private defenders who permit collect calls from court-appointments have a policy that limits the indigent client to a certain number of long distance calls each day or week. As an alternative to long distance phone calls, consider giving your client several stamped pre-addressed envelopes labeled "attorney-client correspondence" along with a few pieces of blank writing paper. Tell the client that you spend a lot of time out of the office and may miss phone calls, but a letter will always reach you and s/he can always use these writing materials to communicate with you. Advise the client not to include any factual information in letters to you or anyone else, e.g. relatives. Tell him/her that you only want to talk about facts in face-to-face meetings. Promise to visit the client in jail if the client needs to see you. Always impress the client with the importance of not discussing the case with fellow inmates or correctional officers a la "Loose lips sink ships." Explain to the client that writing letters to the judge without consulting you is a "no-no" because a copy of the letter will go in the case file and another copy will probably be sent to the prosecutor. Also, caution the client to be on his/her best behavior while in jail; advise the client that misconduct in jail may be reported to the judge and that "model behavior" can sometimes be used as favorable evidence.
+ First fifteen minutes of each visit belongs to incarcerated client: Here's an suggestion that you might use in the area of attorney-client jailhouse visits: Have an understanding that the first 10 -15 minutes of the jailhouse visit belongs to the client. Assure your client that during this period you will answer any questions he has. Have an understanding that the balance of the visit will be devoted to subject matter that you believe is important to his defense.
+ Bail: Be prepared to answer the question, "How long do I have to wait in jail until I can get a trial?" or "Can you get me out of here?" Get familiar with the bail procedures in your jurisdiction. Ask a local bondsman to explain the process or, better yet, accompany the bondsman as s/he goes through the bail out process. If you have experienced the bailing or bonding out process and studied the law and procedure surrounding the issue of pretrial and appeal bond, you will be able to explain the process and answer the inevitable questions your client will have.
+ Facile cynicism as a danger: It is important to be aware of psycho-social skills when representing an indigent client. The lawyer who wishes to exercise power tends to seek an outlet for that desire. Don't let the powerless incarcerated indigent become that outlet. It is very easy to pick up a "facile cynicism" concerning your clients, particularly the indigents. Cynicism can translate itself into a patronizing attitude. Perhaps, this is an ego defense mechanism that we use to make clear to ourselves and others that we are not like some of our anti-social clients. Make it a rule of thumb not to engage in the putting down of your client. Don't "cut up your client's business" or discuss his bizarre character traits with others. You don't have to love your client. You don't have to like your client. You, as a defender, are like the surgeon who seeks to save the injured patient. Your role is not to judge the client, but to save him from the system to the extent you are able.
+ Self-monitoring of the attorney-client relationship: Here's a self-monitoring checklist that you can use to evaluate your relationship with your client:
- How would I define the relationship I have with this client?
- What is the client's attitude toward me (the situation, the prosecutor, the process)?
- Does this client irritate (anger) me?
- Am I just walking through this?
- Am I interested in this client's welfare?
- Am I avoiding this client?
- Am I forgetting to do things that would fortify this client's case?
- Am I preaching to this client?
- Am I ordering this client around?
- Is there anything going on in my life that is adversely affecting my work on this client's case?
+ Results are not everything: Studies indicate that most clients who are dissatisfied with their lawyer feel that the lawyer did not achieve the desired results. But studies also reveal that clients are impressed with lawyers who put forth extra effort, provide extra information, and consistently keep in touch.
+ Communicating and empathizing with people who are not like you: Lawyers are paid to be good communicators. Most of your professional time is spent communicating. Yet that doesn't mean that you do it well. To be an effective defender, you must be a good communicator. One step forward is to recognize that many of your clients are not like you. Language can present a problem. When your client is Hispanic or Russian, his native language may be different from yours. If he thinks in Spanish or Russian and you talk in English, you may need a translator. Pay attention to your prejudices. Color and ethnicity can present a problem. How do you refer to people of color, e.g, blacks, or ethnic groups? Financial concerns can present a problem. How do you deal with your client's transportation problems when the client doesn't have a car?
+ Differing approaches: Tailor your interview according to the client's degree of education, legal knowledge, and sophistication. Mirror the client when trying to communicate, e.g., use language that s/he will understand. Your approach to asking questions of the client may restrict him from giving you important information about himself and the case. Who is the client? What is the case about? Open-ended questions promote talkativeness. For example, with an indigent, you are a court-appointed lawyer, an unknown entity. From the indigent client's perspective, there may be no reason why you should be interested in the case. You'll have to make an extra effort to show interest in the case and make the indigent feel lucky that he got you as his grab-bag lawyer. Make sure he knows who you are, i.e., that you are his lawyer and not a prosecutor, cop, probation officer, etc..
+ Showing client that he's important: How can you do something to make the client feel important? It's sometimes possible to find out something about the client, e.g., his family, the case, etc., before the initial face to face meeting. If you can do this, talk about it first. If the client is in jail, always ask, "Is there someone I can contact for you?" Ask questions that help you discover the client's interests, hobbies, talents, and skills.
+ Discovering potential character witnesses: Be sure to ask your client for the names of people who have had a positive influence on her/his life.
+ Fighting fire with water: Don't allow yourself to get into arguments with your clients. Our job as lawyers requires us to spend a goodly portion of each day, in court and out, arguing with other people. Don't do it with your clients, particularly the indigents.
+ Preparing to handle memory lapses, vague responses, and prevarications: If you hope for a good working relationship with your client, you must engage in open conversation. You cannot afford to allow the communication channels to become jammed. In the initial stages of the attorney-client relationship, be forgiving of memory lapses, ubiquitous ambiguity, and obvious prevarications (lies). These are natural responses from clients who think they must convince you of their saintliness.
+ Post-interview reflection, investigation, strategizing, planning, and mentoring: The client interview provides you with just a smidgeon of the information that you will need to adequately represent the interests of the client. The first step after the client interview is to start gathering as much information as possible, both informally and formally, from the prosecution. See Pretrial Criminal Practice. Discovery is available upon demand under some statutes. There are notice statutes that require the prosecution to give you notice of its intent to introduce certain evidence, e.g., uncharged misconduct, prior convictions of a witness, prior criminal record of the accused for punishment, etc. Hearings on defense motions to suppress evidence are good sources of discovery and also provide you with the opportunity to examine opposition witnesses under oath. Proactive representation also mandates that the defense conduct a separate investigation, independent from the prosecution. You must visit the scene. You can create visual demonstrative evidence. The list goes on. Sometimes information is available from public sources through freedom of information statutes. The great sin of many court-appointed attorneys is to prepare and try their case exclusively out of the prosecution's file, without expanding the investigation to encompass potential defenses that were never considered or routinely discarded by the prosecution's investigators, e.g., the police, because these defenses didn't coincide with the government investigator's theory of the case. Finally, consider whether you might want to try mentoring the client by putting the client in touch with someone who has faced the same anxieties as the client and successfully withstood the rigor of the criminal justice process. Are any of your former clients willing to act as mentors to current clients?
Resources
+ Check the CCJA Bibliography of Criminal Pretrial & Trial Practice for a list of readings on the issue of attorney client interviewing skills. See the discussion of Criminal Defense Ethics and the extensive links on the CCJA web site.
+ Small business customer relations web sites (1) can give you useful tips and a feel for how commercial businesses treat their customers. You ought to treat your clients even better. See the CCJA Law Office Management Page which has useful information about how to maintain a dynamic attorney-client relationship. See also this useful general discussion of the psychological factors involved in interviewing by an Indiana professor of litigation practice and this 14-page article by a social scientist re research on the lawyer-client interview from the client's perspective.
+ Internet resources on the subject of attorney-client interviewing: You'll find some useful material on interviewing on the web, e.g., (1 - short article), (2 - the Oklahoma Bar site on attorney-client interviewing), ( 3 - free interview forms from Lexis), (4 - what a good criminal defense lawyer does), (5 - a discussion of interviewing that seems to cover both attorney-client interviews and witness interviews; remember that the dynamics of a witness interview are different from an attorney-client interview, and the dynamics of your contact with the incarcerated indigent client will typically differ from that of the paying, bailed client), (6 - wade through the self-aggrandizement on this lawyer's web page and you will find some basic practical suggestions regarding immigration consequences of criminal conviction), (7 , 8 - DUI/DWI intake interview forms), (9 - very brief discussion of the interview) (10 - 84 pages of tips on in-depth interviewing from a sentencing mitigation expert), (11, 12 -sample fee agreements from various state bar, (13 - research re the client's perspective on the initial interview).
+ Internet access to case and defendant information: Many metropolitan areas have subscriber -based programs that allow access to county databases that will allow you to determine current status of pending cases. For example, Houston, Harris County, Texas lawyers can, for a fairly nominal fee, subscribe to the Harris County Justice Information System (JIMS), a countywide database that allows Internet access to current case status as well as a wide variety of local criminal records from 1970 to the present; the Texas Department of Public Safety also allows inexpensive Internet access to the public information portion of its database of criminal records, though you'll have to establish an account and purchase credits. Check your jurisdiction for similar programs that will allow you to monitor the status of prospective and current cases and clients.
