client interview

Criminal Cases

copyright © 2000-2011 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 Holmes

Good 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.

"Reasonable doubt for a reasonable price."

      National Criminal Defense College T-Shirts

It's better to be a mouse in a cat's mouth than a client in a lawyer's hands.

Spanish Proverb

You 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.

When you came to me for help, did I ask you whether you were innocent or guilty?

No. All I said was, "Have you got twenty thousand dollars?"

The story is told of a man who was facing trial and possible imprisonment.

"I know that the evidence is against me" he told his lawyer, "but I've got $50,000 to fight this case." 

"With that amount of money, you'll never go to prison," his lawyer assured him. 

He didn't.  He went there broke.

One pundit has said that lawyers start life giving $500 worth of advice for $5 and

end by giving $5 worth of advice for $500.

"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 on the CD/DVD.]

Contents:

Clients Make Your Job Possible

The Client's Perspective- Empathy

Lawyer-Client Confidentiality

Fees for Your Services

Setting the Table

Logistics of the Attorney-Client Interview

Break the Ice

Listen to the Client's Story

Cede Some Control to the Client

Avoid Feelings of Sensitivity and Defensiveness

Watch for Red Flags

Explore and Clarify the Client's Story

Explain Why You Don't Need to Know Everything

Explain the Legal Procedure

Caution That There Are No Guarantees

End the Interview with Finesse

To Take the Case or Not

Contract of Employment

Practice Tips for the Lawyer Interviewer

Resources

SAMPLE INTERVIEW SHEET FOR DETAILED INTERVIEW

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 - Empathy

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 (1)

Plan how you are going to explain confidentiality (1), (2), (3 - lengthy pdf article), (4). 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 unless you want it to. 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. I'm not going to use what you tell me to your disadvantage. Do you understand?" Remember that the attorney client privilege doesn't apply to situations where the lawyer receives confidential information from the client that clearly establishes that the client is likely to commit a criminal or fraudulent act that is likely to result in death or substantial bodily harm to a person. [Alternative to verbal explanation of the attorney client privilege: Place a clause in your employment contract that says something like this: " Conversations and communications between myself as a lawyer and you as a client are protected by laws and disciplinary rules of conduct that govern lawyers. Under the law and rules of professional conduct an attorney cannot be forced or compelled to reveal anything that a client says to the attorney, except in narrow circumstances strictly according to the rules and law or unless you consent to the disclosure. Of course, the rules and law do to not protect confidential information in certain circumstances such as where the confidential information clearly establishes that the client is likely to commit a criminal or fraudulent act that is likely to result in substantial harm to someone." ]

If you anticipate discussing the client's case with colleagues, witnesses, or others, it may be a god idea to include in your employment contract a statement to that effect, e.g., " In the course of my efforts to provide you with effective representation I may need discuss your case with other lawyers, witnesses, experts private investigators, and paralegals. If there is any particular information that you do not want me to reveal, please let me know  so that I may respect your wishes."

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 (See Ethics re Ethical Constraints on Fees [1])

Determining Your Fee - It is probably sound practice to avoid taking a criminal case unless you are satisfied with the fee arrangement. Criminal defense work demands allegiance and loyalty to the client and such altruism is difficult to maintain when one feels that s/he has not been adequately compensated under the circumstances. The fee needs to be sufficient to maintain the your interest and effectiveness in undertaking and continuing the representation.

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) Right behind the question, "Can you get me out of this?" is the question "How much is all of this going to cost me?" Whether s/he says so or not it's always a question that needs addressing. So don't hesitate to bring up the subject of your fee and the way payment will be structured. As a general rule, it is essential to discuss fees during the first or second interviewing and counseling session. You'll find that some clients are shy about asking questions relating to the fee, believing it impolite to bring the subject up until you do so. This type of client may actually resent you forcing him/her to ask what the fee will be.  

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. [Note: You can put a pencil and paper to use in determining a theoretical hourly rate that must be charged for your time. Office overhead averages between 35% and 50% of gross income.  There are approximately 260 working days in a year.  If each day contains five hours that can be devoted to practice, there are approximately 1300 billable hours per year. Simply determine the necessary gross income to provide the proper net income and divide this by the billable hours. For example, the appropriate theoretical hourly rate to net $78,000 a year based on a 40% overhead, would be a per hour charge of $100. A $200 an hour fee should net $156,000 per year.] Once you have an idea of how much you need to charge per hour, you can simply multiply by the estimated number of hours that the case will take, and you have the estimated cost to the client , i.e., a rough idea of what the fee should be based on hourly charges. Of course, if there are additional anticipated expenses, costs, or fees for investigators, travel, expert witnesses, etc, chargeable to the client you'll need to factor that into the equation and explain to the client that such amounts will be added to the fee. (This should be clearly stated in the written fee agreement.)

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 a double-shot 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.) Another variable factor that might be considered is whether there should be a lessening of a fee because the source of the referral is valued by the attorney, e.g., another attorney, a former client, a relative. Ability to pay, i.e., the client's financial position, does not justify a charge exceeding the value of the service; note also that ability to pay is not among the listed guideline factors that are normally required to be considered in determining the reasonableness of a fee. Impecunious circumstances may however dictate a fee less than the true value of the services rendered.

Practice differs from attorney to attorney as to whether the amount of the fee should vary according to whether the case can be concluded without the necessity of a trial. Famed criminal defense lawyer Percy Foreman used to say, "I charge by the painting and not by the brushstroke."

• Tip: 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, provided that you know the address and zip code of the home. The median error in the figures provided in this web site is estimated to be 7-8%. In most jurisdictions, there is a local appraisal district that sets values on real estate for tax purposes. Here's the one for my county in Texas.] See Ethics for further information regarding attorney's fees and a directory for finding the Rules of Professional Conduct and Advisory Ethics Opinions applicable in your state.    
  

Explaining Your Fee to the Client - 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 may require an explanation of pretrial investigation, formal and informal discovery, conferences with the opposing lawyers or judge, 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 and/or post-conviction collateral attack. Explain whether and why 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 photographer when she says "fees." Note: For a couple of examples of how greed can get the best extremely rich trial lawyers check out Richard "Dickie" Scruggs and William Lerach, both convicted felons.

• Tip: There are many positive statements that you can make to lead into the subject of fees Here's an example: "Like most people, you are probably anxious to know how much my fee for representing you will be and exactly what I will do to earn it. If you will, let me first explain to you what is involved in a case of this nature and what you will be paying for. (Explain the general aspects of investigation, negotiation and preparation involved as well as your experience, skill and training in the field of practice.) With that in mind, my fee to represent you in your case(s) will be $__ (or With that in mind, I  will bill you based on the hours which I work on your case at the rate of $__ per hour.)." From a psychological point, you have already justified your fee by explanation before quoting it. After mentioning the amount, you should always remain silent and wait to let the client speak first. Don't ever start trying to back-peddle or justifying your fee merely because there is a period of silence after you quote a number. At the end of that period of silence, a surprisingly large percentage of clients will say, "O.K. Sounds fair."  Others will say,  "I'll think about it."  Some will say, "That's a lot more than I  can afford." The point is that your approach has communicated a assuredness that the client will be getting something for his money. Not all clients will agree on the fairness of the figure, but this method of presentation is one of the best I know.
  

• Tip: Some clients accused of crime will believe that the fee a defender quotes is too high, notwithstanding that the fee is entirely realistic. This attitude is a thorn in the side of the attorney-client relationship. If you take the case, you need to be sure that the client understands and accepts the fairness of your fee. You won't have time to work on the client's case and soothe disgruntled feelings. In explaining your fee you might say: "Coming to see a lawyer is a bit like going to the dentist to get your teeth filled. If you look at the little piece of material that the dentist uses and think that a hundred-and-fifty dollars is too much for that little bit of material, you are forgetting that you are not paying for the metal. It's free. What you are paying for is that dentist's skill in placing it in your tooth. What you are paying me for is my skill in helping you through the court system with the least possible pain. The law is in these books. (motioning) The difference between you and me is that I know how to look it up and use it to help you in court and you don't.]
  

• Tip: Sooner or later, probably sooner for those who are just starting their practice, you'll be faced with a prospective client who will tell you that s/he has shopped around and found lawyers who charge a lower fee than you have quoted. This is a possible response: "You are right. Some other lawyers might be able to handle this case for less than the fee I will charge you. The Yellow Pages are full of lawyers. I don't know what their services are worth, and I won't guess.  I do believe that I know the value of my services. (pointing to files on the credenza) These people apparently believe that I'm worth what I charge. There's only so much time in a day and every hour that I devote to your case is an hour that is taken away from their cases.  And, so in all fairness, as much as I might like to charge you less than I charge them, I simply have to stand by the fee I just quoted."
  

• Tip: Consider framing the issue of fees in a manner that communicates to the client the fact that the you, as the attorney, want to do the client a service by establishing the amount, the method of computation, and the payment structure of the fee as soon as possible. By this I mean, let the client know that you want to get the fee issue out of the way so you can concentrate 100% of your attention on getting to work on the case.
  

Payment Structure - 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.

Fees Paid By Third Party - 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 relationship or the lawyer's independent judgment, and that the requirements of client confidentiality are preserved and maintained. See your state in Ethics.

The general rule is that except with the consent of your client after full disclosure, a criminal defense lawyer should not accept compensation for his/her legal services from one other than his/her client or accept from one other than his/her client anything of value related to his representation of or his/her employment by his/her client and that a defender shall not permit a person who recommends, employs or pays him/her to render legal services for another to direct or regulate his/her professional judgement in rendering such legal services. When a third party is paying your fee for representing your client, be sure that your written fee agreement clearly specifies the third party's limited role and the fact that the client has consented to the fee being paid by the third party. Of course, funds received from third parties in payment of your fees should be deposited in your trust account. 

In accepting payment of fees by one person for the defense of another, you must be careful to determine that you will not be confronted with a conflict of loyalty, since your entire loyalty is due to your client without regard to the source of your fees. See A.B.A., Standards Relating to the Defense Function, Sec. 3.5(c) (Approved Draft, 1971) which states: "In accepting payment of fees by one person for the defense of another, the lawyer should be careful to determine that he will not be in conflict of loyalty since his entire loyalty is due the accused.  When the fee is paid or guaranteed by a person other than the accused, there should be an explicit understanding that the lawyer's entire loyalty is to the accused who is his client and that the person who pays his fee has no control of the case."

Deductibility of Legal Expenses -Some clients will want to know if their legal expenses in defending themselves against criminal accusations are deductible from their federal income tax.  As a general rule, a taxpayer may take a business deduction for legal expenses that are incurred in defending himself against a criminal charge that arises out of his business even though he is convicted of the offense. See Commissioner of Internal Revenue v. Tellier, 383 U.S. 687 (1966). However, the expense of defending a non-business related criminal charge is a non-deductible personal expense, even though the taxpayer is acquitted. A non-business related criminal charge would be one that is not connected with the conduct of the taxpayer's legitimate trade or business. Research the question or consult a tax specialist before giving your client a definitive opinion.

Withdrawal from Representation - The rules of professional conduct provide that a lawyer may withdraw from representing a client if the client fails substantially to fulfill an obligation to pay the lawyer's fee and the lawyer has provided the client with reasonable warning that the lawyer will withdraw if the fee is not paid. It may be wise to include in your employment contract an express statement that one reason you may withdraw from the representation is for the client's failure to pay the agreed fee. (1) If the client has agreed to pay costs for expert assistance and/or private investigators, that also may be a stated in the employment contract as a ground for potential withdrawal. Other grounds for withdrawal include failure to cooperate with reasonable requests of counsel or insisting that counsel act in an unprofessional manner. Caveat: In practice, once you have officially entered a case as defense counsel, it is difficult to get the court to release you from the representation.   

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?  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? Suppose your client is an ex-con. 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 if the client needs to place 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. (1) 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 her/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 organizations, social security number, names of witnesses, incidents involving police conduct during the arrest stage, e.g., searches and seizures, police 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. Make it clear that you will have plenty of opportunities in 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.
  

• Caution the client that there are no guarantees. Be sure to inform the client. preferably in your employment contract that there are no guarantees of a particular result or outcome or a particular time frame for disposition of the case. 
  

• 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? (1) 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.

Contract of Employment

As soon as feasible after you've decided to accept employment on the case, draft a written employment contract or letter agreement setting forth the rights and responsibilities of yourself and your client regarding your representation of the client. Many disputes and misunderstandings can be avoided if the lawyer and his client clearly state in writing the scope of the representation, the amount of money that is to be paid by the client, when it is to be paid, and what investigative services it will be used for.  A concrete agreement promotes good relations between the lawyer and client and serves as a protective device in the event of a dispute over fees or the lawyer's duties and obligations.  Fee setting is discussed above.

Experience soon teaches the criminal defense attorney that once the case reaches final disposition any outstanding balance then due and owing will remain unpaid. For this reason, some criminal defense attorneys require that their entire fee be paid in advance. Note that as a matter of general policy, the defender may choose to ask clients for full payment at the beginning of the case. In most instances, the client accused of "street crime" will be unable to pay the entire fee in a lump sum. Terms of installment payment may need to be arranged.  In a significant proportion of cases, e.g., DUI, drug or "white collar" offenses, the client may be able to pay in full in a single lump-sum.

You may choose to include a promissory note in the free agreement. If the client defaults in payment, the promissory note securing payment can, at the attorney's discretion, then be reduced to judgment. Remember, that when justice requires an attorney to sue a client for this fee, it is not unethical for the attorney to use confidential information obtained from the client where clearly necessary to protect his rights. This does not violate the attorney-client privilege and is not considered as use for private gain. Insofar as the decision to enforce a note, one should weigh the  benefits to be derived against the potential damage to his reputation by instituting legal  proceedings. Of course, many clients accused of street crime will be judgment-proof. From a practical viewpoint, very few such suits are pursued by lawyers who have been stiffed for a portion of their fee.

A separate provision should be included in the employment contract for anticipated investigative expenses. This makes the total client expenditure more understandable to the accused. It is important to have a meeting of the minds with the client concerning the costs and expenses that will be borne by the attorney and those that the client is expected to advance. A deposit for client-borne expenses is necessary when you can foresee significant expense factors. Whether to bill a client separately for travel expenses, expert witness fees, investigators' fees, copying expense, long distance phone calls, etc., is a matter of discretion for the lawyer. The funds entrusted to the attorney for the purpose of paying expenses should be considered as trust funds and should never be commingled with the lawyer's funds. A separate trust checking account is required in addition to the office account. If there is to be a separate charge for expenses, it is necessary to keep accurate records. Copies of expense statements should be forwarded to the client for his records. In addition, be certain that the contract clarifies the stage or stages of the process for which you have agreed to undertake representation. In the case of a client who is not liable for his contractual obligations because of age, a guarantor provision is necessary. A copy of the signed employment contract should be given to the client.

A lawyer cannot acquire a proprietary interest in the case he is conducting except that he may acquire a lien to secure his fee or expenses. Also, prior to conclusion of all aspects of the case giving rise to his employment, a lawyer cannot ethically  enter into any arrangement or understanding with a client by which the lawyer acquires an interest in literary or media rights concerning the case.  See  James Earl Ray v. Rose, 491 F.2d 285 (5th Cir. 1974).

It is a personal decision whether one should use a standard form contract or draft a new tailor-made one for each individual case. The form may be easier when you deal with standard cases. However, in this day of computerized word processors it is easy to custom-draft a fresh contract for each case modifying it to particular employment situations which present themselves.

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),(2). 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. (1) 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). See Padilla v. Kentucky, 559 U.S. __, 130 S.Ct. 1473 (2010) holding that the constitutionally competent counsel under the Sixth Amendment would have advised the defendant prior to his plea of guilty (on a drug charge) made him subject to automatic deportation.

+ 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. (1) 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) In cases where you are retained, make certain that your employment contract does not contain any provision that limits your client's access to you.

+ 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. (1) 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: Aside from general neglect and failure to return complete files upon withdrawal, clients stress inadequate communication as one of the primary reasons why the relationship turned sour. By regularly assessing our effort to keep communication open, we can avoid this stressor. 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 and limiting his access to me?
  

• 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

+ Read Interviewing & Counseling Clients in Criminal Cases on the CCJA CD. 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. Here's a 46-page article that explains the client-centered approach to problem solving and sentencing.

+ 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), (14 - 7 pages of advice from a defender), (15 - Client-Centered Approach), (16 - so-so PowerPoint and 16A handout re interview of domestic abuse victim), (17 - 15 red flags for identifying potentially difficult clients), (18 - dangers of having a third party present), (19 - 6-page pdf), (20 - informative step-by-step client training exercise re determing client's current immigration status), (21 - 5 pages re interviewing client's of the public defender). 

+ 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.

+ Texas Lawyers: (1) Notice that Texas lawyers are required to give notice to clients of the grievance process. This can be done in several ways, one of which is to include the information in the written attorney-client employment services contract, e.g., "The State Bar of Texas investigates and prosecutes professional misconduct committed by Texas attorneys. Although not every complaint against or dispute with a lawyer involves professional misconduct, the State Bar's Office of General Counsel will provide you with information about how to file a complaint. Please call 1-800-932-1900 for more information." (2) Notice that Texas lawyers are also required to inform clients of the existence and content of the Texas Lawyer's Creed. One way compliance with this requirement can be memorialized is to reference it in the employment service contract, e.g., "I have advised you of the existence and contents of the 'Texas Lawyer's Creed,' and you have been given a copy thereof."  See also Texas Disciplinary Rules of Conduct and Texas Rules of Disciplinary Conduct.

+ The jailhouse interview of the two falsely accused college students in the world-class comedy My Cousin Vinny gives us a little insight re the jailed young inmate's concern with the lurking danger of sexual assault in the cross-bar hotel. It's not a figment of the imagination. (1, 2 - federal statute), (3), (4)

+ A law professor discusses lawyer-client interviewing in light of the movie Amistad. (1)

+ Sample Interview Form - The form below will give you some ideas as to topics and details that you may wish to develop during a detailed interview. Notice the Sidebar information about immigration consequences of conviction and your duty to communicate this information to your criminally accused client.

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Sample Interview Form  for Use with a Client Accused of Crime

The interview form which follows may be useful to you in conducting the initial interview of the client.  Counsel can fill in the blanks with appropriate information as it is obtained from the interviewee.  Such a form can be useful in providing organization to the interview.  A uniform approach to information gathering assists everyone in the office who may work on the file in finding and recording data with more ease and clarity than is true with interview information that is recorded in an ad hoc manner.  Use this form as a guide to create your own with the relevant information in the same order as used in reports and files of your local police and prosecutor's office.

CONFIDENTIAL

DO NOT DISCLOSE

CLIENT INTERVIEW SHEET

Interviewer ___________________Today's Date ________________________________________________

Client Name As Charged___________________________________________________________________

                             First         Middle     Last

Charge(s)(1) _____________________________________________________________________________

     (2) _____________________________________________________________________________

     (3) _____________________________________________________________________________

     (4) _____________________________________________________________________________

Date of Offense _______________________________________________________________________________

Preliminary Hearing (TX: Examining Trial)  _________________________________________________________

Indictment/Information  _________________________________________________________________________

Court Number ________________________________________________________________________________

Judge or Courtroom  ___________________________________________________________________________

Client's Present Location  ______________________________________________________________________

TELL JAILED CLIENT:  (1) Don't discuss your case with anyone except your lawyer or the student-attorney, (2) sign nothing and waive no rights, (3) decline to participate in any lineup without your lawyer being present - but if the police persist in conducting the lineup, you should cooperate fully with them and not do anything in the lineup to call attention to yourself, (4) try to present as good an appearance as possible in future court appearances.

Approximate Date                                     Referred to

Employment Began _______________________________          Office By: ______________________________

FACTS OF CASE - Client's Version

Client's Description of Facts:  ___________________________________________________________________

____________________________________________________________________________________________

____________________________________________________________________________________________

____________________________________________________________________________________________

____________________________________________________________________________________________

____________________________________________________________________________________________

CLIENT WRITE OUT:  If appropriate, tell client to write out in his own words exactly what happened to cause him to be arrested in this case and return this to the lawyer's office.  The lawyer can give the client the following instructions.

On a separate sheet or sheets of paper, write out in your own words exactly what happened to cause you to be arrested in this case.  Tell everything.  It would be helpful to me if you would draw diagrams or attach photographs of places that are involved.  If you know anything about the people that are involved or might be called to testify as witnesses, tell about that. 

Tell what they might know and what their names and addresses are.  Attach photos of them if you have any.

After you have written everything out, go back over it and add anything you left out.  Then put this explanation in the stamped, self-addressed envelope my secretary will give you and send it back to me.  (Let client tell everything he knows about present charges in chronological order.)

PRIOR ATTORNEYS

Prior Attorneys in Present Case _________________________________________________________________

Prior Attorneys in Previous Cases _______________________________________________________________

CURRENT BAIL/CUSTODY

[ ]    Currently confined                   [ ]   Currently on bond

      Location _________________________________           Type/Cost ____________________________

      Date placed in custody _____________________            Date ________________________________

      Date released _____________________________

Bondsman _______________________________________ Amount ________________________________

Bond Posted by ______________________________________________________________________________

PERSONAL DATA - CLIENT

True  Name__________________________________________________________________________________

Aliases (AKA--known by any other names )________________________________________________________

____________________________________________________________________________________________

Age ______________ Birthplace ________________________________ Birthdate ________________________

Sex:[ ] Male[ ] Female

Height:______ Ft.______ In.

Weight:______ Lbs.

Race:  [ ] White [ ] Black   [ ] Hispanic      [ ] Asian     [ ] Other

Driver's License Number  _______________________________________________________________________

Social Security Number ________________________________________________________________________

Home Address _______________________________________________________________________________

Home Phone _________________________________________________________________________________

Lived There Since _____________________________________________________________________________

Alternate Address or Method of Contact ___________________________________________________________

Alternate Phone ______________________________________________________________________________

EMPLOYMENT

Occupation __________________________________________________________________________________

Present           Employer

Employer ____________________          Address ________________________________   [   ] Don't Contact 

Work Phone _______________________ How long employed?  _______________________________________

Supervisor's Name and Phone ___________________________________________________________________

Present Take Home Salary _______________________      Month _________ Week ________ Hour _________

List  all  Prior  Employers ______________________________________________________________________

____________________________________________________________________________________________

____________________________________________________________________________________________

Ability and Willingness to Make Restitution  _______________________________________________________

Belong to Organizations or Clubs ________________________________________________________________

____________________________________________________________________________________________

____________________________________________________________________________________________

Skills _______________________________________________________________________________________

____________________________________________________________________________________________

____________________________________________________________________________________________

FAMILY AND COMMUNITY TIES

Marital Status:[ ] Married      [ ] Single      [ ] Divorced       [ ] Separated       [ ] Widowed

SPOUSE (if living)                       CHILDREN

Name  __________________________________   Names ____________________________________________

Address  ________________________________  Ages ______________________________________________

Phone  _________________________________   Do you pay child/spousal support?______________________

(If yes, how much for whom?) __________________________________

_________________________________________________

FATHER (if living)                                 MOTHER (if living)

Name ______________________________                   Name ____________________________________

Address ____________________________                          Address __________________________________

City ________________________________                          City _____________________________________

Nationality __________________________                   Nationality ________________________________

Age ______ Illness ___________________                   Age ______ Illness _________________________

Occupation _________________________                    Occupation _______________________________

Home Phone ________________________                   Home Phone _____________________________

Work Phone _________________________                   Work Phone _____________________________

Current                           Current

Employer ___________________________                     Employer ________________________________

How long? ___________________________                    How long? _______________________________

Who  raised  you?_____________________________________________________________________________

____________________________________________________________________________________________

Were your parents separated during your childhood?  ________________________________________________

____________________________________________________________________________________________

BROTHERS/SISTERS

      Name           Age             Address & Phone                             Occupation

____________________________________________________________________________________________

____________________________________________________________________________________________

____________________________________________________________________________________________

____________________________________________________________________________________________

EDUCATION

High School (GED)____________________________________________________________________________

(Where and When)

Last grade completed ___________               Graduated ____________                  GED _______________

Years

Technical School or College Name _______________            Completed _____            Degree _______

Special Training ______________________________________________________________________________

Favorite   Teachers____________________________________________________________________________

  (Name, Course Taught, Grade Received)

____________________________________________________________________________________________

____________________________________________________________________________________________

RELIGIOUS BACKGROUND

                 Clergyman's

Church _____________________________  Name __________________________________________________

             (Priest,  Rabbi,  Minister)

Currently Active _____________________  Previously Active __________________________________________

MILITARY SERVICE    Yes _____      No _____     Former ________________     Current _________________

If Yes, What branch? _______________________ Service Number _____________________________________

Time in Service ________ Type of Discharge:  Honorable ________   Other ______________________________

Honors/Medals________________________________________________________________________________

Combat Duty ____________________________  Time and Place Overseas______________________________

____________________________________________________________________________________________

POSSIBLE CHARACTER WITNESSES, e.g., close friends/relatives/landlord/ employer/probation officer.  Include the names of four people who will be willing to come to court and testify that you are a good and honest person.

Name ______________________________                            Name  ____________________________

Address ____________________________                            Address  __________________________

City ________________  Ph ____________                           City ______________ Ph _____________

Occupation _________________________                             Occupation _________________________

Age ________________________________                            Age ______________________________

How known? ________________________                            How known? ________________________

___________________________________                             ___________________________________

PRIOR CRIMINAL RECORD (Arrests, convictions, probation, parole).  Explain to the client that the prosecution will have access to FBI and DPS records and that if we are surprised, it may have a bad effect on the outcome of the case.

  Charge        Date           Convicted           Court Sentence            Location

Prior Violence_______________________________________________________________________________

Ever the Victim of a Violent Crime?______________________________________________________________

___________________________________________________________________________________________

PROBATION/PAROLE: Are you presently on probation or parole?    Yes____   No____

  If yes, where _______________________________________________________________________________

Probation/Parole Officer _______________________________________________________________________

Conditions of Probation ________________________________________________________________________

____________________________________________________________________________________________

OUTSTANDING WARRANTS (Traffic or other)

____________________________________________________________________________________________

____________________________________________________________________________________________

MEDICAL BACKGROUND

Are you taking any medication under prescription?___________________________________________________

If yes, name of doctor, what type and frequency? ____________________________________________________

_____________________________________________________________________________________________

Present and Permanent Injuries/Disabilities. (Look for bruises on portions of body that might confirm allegations of police mistreatment.)

_____________________________________________________________________________________________

_____________________________________________________________________________________________

Present Physical Illnesses_______________________________________________________________________

Current Medical Care___________________________________________________________________________

Doctor's Name________________________________________________________________________________

Address _______________________________________________            Phone _________________________

Ever been unconscious (when, where, how, who treated you)? _________________________________________

_____________________________________________________________________________________________

Serious Physical Injuries (and all head injuries):

Type  _________________                          Type ____________________               Type __________________

Cause ________________                           Cause___________________               Cause _________________

Date  ________________                             Date  __________________                 Date  _________________

If you were hospitalized for injuries, give hospital name, address, city and dates of hospitalization.

_____________________________________________________________________________________________

_____________________________________________________________________________________________

Vision ___________________________                         Doctor ________________________________________

(corrective lenses)                         (Optometrist)

Do you use other drugs or pills? (Look for needle tracks or other signs.)

____________________________________________________________________________________________

Type ________________________________________________________________________________________

Present Frequency of Use ______________________________________________________________________

                   Volume

Do you use alcohol?  Yes _______ No ________  of Use_____________________________________________

If heavy drinker, since (date)_____________________________________________________________________

Are you currently in a treatment program?__________________________________________________________

Type ______________________________   Where __________________________________________________

Have you ever been in a mental hospital or institution. (Give hospital or institution name and address, also give date(s) of stay(s)?)

_____________________________________________________________________________________________

Have you ever undergone psychiatric counseling or treatment? (Give name and address of psychiatrist as well as date (s) of treatment.)

_____________________________________________________________________________________________

Have you ever undergone psychiatric or psychological evaluation? (Give circumstances, dates, names and addresses of evaluators.)

_____________________________________________________________________________________________

BAIL INFORMATION

Bond you could make  _________________________________________________________________________

Bond amount others could make (list name, phone, amount) __________________________________________

____________________________________________________________________________________________

WITNESSES

Witnesses to the events on which the charge is based (including the complainant and persons who may be prosecution witnesses; for each get name, correct spelling, aliases, nicknames.)  (Please indicate if immediate contact is advised for any reason.)

Name _________________________________________________        Phone ____________________________

Address _______________________________________ City_____________________________ State________

Other information that will help in locating witness, i.e., where he works, hangs out, if on relief, where he picks up check

_____________________________________________________________________________________________

What witness knows ___________________________________________________________________________

_____________________________________________________________________________________________

Name _________________________________________________        Phone ____________________________

Address _______________________________________ City _______________________    State ___________

Other information that will help in locating witness, i.e., where he works, hangs out, if on relief, where he picks up check

_____________________________________________________________________________________________

What witness knows ___________________________________________________________________________

_____________________________________________________________________________________________

Name  _________________________________________________         Phone ___________________________

Address _______________________________________  City ______________________ State ______________

Other information that will help in locating witness, i.e., where he works, hangs out, if on relief, where he picks up check

_____________________________________________________________________________________________

What witness knows ___________________________________________________________________________

CO-DEFENDANTS

Are there any co-defendants? ____________________________________________________________________

Name______________________________________________________   Phone __________________________

Address __________________________________________________    City __________________  State _____

Name ____________________________________________________      Phone __________________________

Address __________________________________________________    City __________________  State _____

Do the co-defendants have attorneys?_____________________________________________________________

Name _______________________________________________________ Phone __________________________

Address __________________________________________________     City __________________ State _____

Name________________________________________________________ Phone _________________________

Address___________________________________________________     City __________________ State_____

ARREST

Date and Time of Arrest ________________________________________________________________________

Exact Location of Arrest ________________________________________________________________________

_____________________________________________________________________________________________

Who was with client when he was arrested?  Were companions arrested?  Get information as for witnesses, supra.

_____________________________________________________________________________________________

_____________________________________________________________________________________________

Was client drunk at time of arrest or had he taken alcohol recently? ____________________________________

_____________________________________________________________________________________________

Was client under the influence of narcotics, or had he taken narcotics recently?

______________________________________________________________________________________________

Was client roughly handled or struck during arrest or thereafter? (Describe injuries.)

______________________________________________________________________________________________

______________________________________________________________________________________________

Names of Arresting Officers ______________________________________________________________________

_____________________________________________________________________________________________

Did they have an arrest warrant? __________________________________________________________________

What did they say the charge was? ________________________________________________________________

What questions did they ask the client? ____________________________________________________________

_____________________________________________________________________________________________

What did the client tell them?_____________________________________________________________________

_____________________________________________________________________________________________

Did police at the time of the arrest or any other time, take property from the client's person, home, place of work, automobile, place where the client was, home or place of any other person?

______________________________________________________________________________________________

Kind of Property, e.g., clothing, weapon, drugs, writing, etc.

______________________________________________________________________________________________

______________________________________________________________________________________________

Did police have a search warrant? _________________________________________________________________

Describe circumstances under which property was taken. _____________________________________________

_____________________________________________________________________________________________

For all persons present at place of arrest, get information as for witnesses, supra

_____________________________________________________________________________________________

_____________________________________________________________________________________________

AFTER ARREST

Give every location to which client was taken by police ._______________________________________________

Exact time of confinement in each place. ___________________________________________________________

_____________________________________________________________________________________________

Officers present in each place:  names, ranks, descriptions of each officer significantly involved in the investigation 

______________________________________________________________________________________________

______________________________________________________________________________________________

INTERROGATION

Where did it take place? _________________________________________________________________________

When and how long? ____________________________________________________________________________

Interrogating Officers ____________________________________________________________________________

Other Persons Present __________________________________________________________________________

Was a lie detector test administered? ______________________________________________________________

What specific questions did the officers ask (this is often a good means of learning something about the prosecution's case)?

______________________________________________________________________________________________

______________________________________________________________________________________________

Did the police confront the client with any evidence against him?

______________________________________________________________________________________________

Did the police tell the client that any person had incriminated him, or that any co-defendant had confessed?

______________________________________________________________________________________________

Did any co-defendant confess or incriminate the defendant in his presence?

_____________________________________________________________________________________________

Did client tell the police anything? _________________________________________________________________

What, in detail? ________________________________________________________________________________

______________________________________________________________________________________________

Did client make a written statement? _______________________________________________________________

Was his oral statement taken down? _______________________________________________________________

Did client sign anything? _________________________________________________________________________

Were there any recording devices present? __________________________________________________________

Other circumstances occurring at the time of the client's statement, in  detail ______________________________

______________________________________________________________________________________________

______________________________________________________________________________________________

Was the client previously warned: _________________________________________________________________

That he had the right to remain silent: ______________________________________________________________

That anything he said could be used against him _____________________________________________________

That client had a right to a lawyer before making a statement ___________________________________________

That if he could not afford a lawyer, one would be appointed him before making any statement

______________________________________________________________________________________________

What did client say to these warnings? _____________________________________________________________

EXAMINATIONS, TESTS, INSPECTIONS

Was client given any physical examination? _________________________________________________________

Was a blood or urine sample taken? _______________________________________________________________

Was hair taken or combed? ______________________________________________________________________

Was a narcotics or alcohol test administered, or body inspection of any sort made?

_____________________________________________________________________________________________

Was the client examined by a doctor or psychiatrist?__________________________________________________

Where?____________________________________________             When?______________________________

Describe the Examination, Test or inspection ________________________________________________________

______________________________________________________________________________________________

______________________________________________________________________________________________

Persons Present _______________________________________________________________________________

Did anyone say anything about the examination, test or inspection results?

______________________________________________________________________________________________

Was permission asked of the client to make the examination, test or inspection? __________________________ 

Was he told he had the right to refuse or to have an attorney present?  ___________________________________

EYEWITNESS IDENTIFICATION

Was the client exhibited in a lineup or brought before any person under any circumstances for identification? 

_____________________________________________________________________________________________

Where? ______________________________________________            When? ___________________________

Describe the situation. __________________________________________________________________________

________________________________________________________________________

All persons present (including police, number of identifying witnesses, number of other persons in lineup, and their age, sex, race, dress, co-defendants, etc.

_____________________________________________________________________________________________

_____________________________________________________________________________________________

What did the police say to the identifying witness?____________________________________________________

______________________________________________________________________________________________

What did the identifying witness say? ______________________________________________________________

______________________________________________________________________________________________

Was the client asked to say anything? _____________________________________________________________

_____________________________________________________________________________________________

Was the client asked for permission to place him in the lineup or to be exhibited for identification purposes?_____________________________________________________________________________________

Was he told that he had a right to refuse or to have an attorney present? _________________________________

_____________________________________________________________________________________________

Was he asked to do anything (move, walk around, speak)?_____________________________________________

Was he told he had a right not to do these things?____________________________________________________

What did he say or do? __________________________________________________________________________

Was the client asked to re-enact anything (same sub-questions as for lineup)?_____________________________

PRIOR JUDICIAL PROCEEDINGS

Has client appeared in Court? _______________ When?   _____________________________________________

What Court? __________________________________________________________________________________

Nature of Proceedings __________________________________________________________________________

Who was present (names or descriptions of Judge, prosecutor, police)?

_____________________________________________________________________________________________

_____________________________________________________________________________________________

_____________________________________________________________________________________________

Were charges read or shown to the client?__________________________________________________________

Was the defendant asked to plead?________________________________________________________________

Who testified? _________________________________________________________________________________

What did they testify? ___________________________________________________________________________

______________________________________________________________________________________________

Did the client testify? ____________________________________________________________________________

What did he testify?_____________________________________________________________________________

______________________________________________________________________________________________

Was he represented by a lawyer? (Include name or description of lawyer, and circumstances of representation.)

______________________________________________________________________________________________

What else happened? ___________________________________________________________________________

______________________________________________________________________________________________

MEMO TO FILE:

This client has promised to send us the following information:

______________________________________________________________________________________________

______________________________________________________________________________________________

The following things need to be done in connection with this file:

___  Appearance letter needed to __________________________________________________________________

___ Photographs of _____________________________________________________________________________

___Statements from the following witnesses:

Name              Address           Phone                 Facts Needed

______________________________________________________________________________________________

______________________________________________________________________________________________

______________________________________________________________________________________________

______________________________________________________________________________________________

______________________________________________________________________________________________

IMMIGRATION STATUS (See Sidebar)

☐ U.S. Citizen       ☐ Resident Alien            ☐ Non-resident Alien

OTHER INFORMATION NEEDED

______________________________________________________________________________________________

______________________________________________________________________________________________

FACTS ABOUT COMPLAINANT

Name of complainant ________________________________________________   Age ______________________

Address ___________________________________________________________   Phone ____________________

Accused's relationship with complainant ____________________________________________________________

Information concerning complainant's background ____________________________________________________

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BACK TO HOME

Counsel's Warning re Consequences of Immigration Status

Prior to Entry

of a Guilty Plea and the Danger of Deportation

See Padilla v. Kentucky, 559 U.S. __ 130 S.Ct. 1473 (2010) holding that the constitutionally competent counsel under the Sixth Amendment would have advised the defendant prior to his plea of guilty that

the conviction (on a drug charge) made him subject to automatic deportation.

Informative Practice Interview  Training Exercise re Client's Immigration Status

Defending Immigrants

Web Resources

Immigrant Legal

Resources Center

National Immigration Project of the Natl. Lawyers Guild

For a case example of statutes dealing with deportation flowing from criminal conviction read Flores v. United States, 360 F.3d 666 (7th Cir. 2003).

Here's information about defending noncitizens (immigrants) charged with crime.

(1)(2)(3)

Padilla means that every defender has a duty to inquire about the client's citizenship and immigration status. Additionally, It means that every defender must learn thoroughly about the portion of deportation law that deals with the deportation consequences of conviction. Defenders will also need to understand how to factor the possibility of deportation into plea bargaining.

See United States Citizenship & Immigration Services

Texas Lawyers:

Read this article.

Castillo, Mario, Immigration Consequences: A Primer for Texas Criminal Defense Attorneys in Light of Padilla v. Kentucky, 63 Baylor L. Rev. 587 (2001).

See also Negotiation

The concern of many clients who are unable to make bail and are incarcerated pending trial : Will I be sexually assaulted in jail and/or prison?

Sidebar

Satirical View of Interview

Satirical View of Interview

(Not a model client-centered approach)