Defender – Page 3

Practice Pointer: Ethical 8

June 9, 2015 Leave a Comment

Don’t refuse to accept a plea because your client hasn’t finished paying you—your business model should not cost your client her liberty and it most likely violates the Texas Disciplinary Rules of Professional Conduct. A few hundred dollars isn’t worth a grievance;
Corollary to No. 1: If the representation has concluded and the client has defaulted on payments—forgive the debt. A few hundred dollars isn’t worth a grievance;
No snitching; [i.e. don’t reveal your colleagues confidences]
Don’t ex parte a judge;
If you see unethical conduct by a lawyer or a judge, confront it appropriately—this may mean throwing bombs, or it may mean showing some tact, but it requires action;
Don’t represent co-defendants;
Read the charge and punishment ranges to your client;
Don’t give immigration advice unless you know what you’re talking about; most of all never advise that a plea “won’t affect your status at all” in order to get the plea done.

Practice Pointer: Can You Afford an Assistant?

June 9, 2015 Leave a Comment

How many of you have spent an entire Saturday trying to reorganize files, whether electronic or paper? So, an eight-hour Saturday, even at an appointed hourly rate of say one hundred dollars per hour, is eight hundred dollars lost to you. That buys a nice hunting rifle, a new suit or outfit, a plane ticket and one night hotel stay to Vegas; well, you get the idea. As another, how many times have you spent two or three hours driving, parking, sitting in an elevator, then waiting in the line at a clerk’s office, whether to copy an item from a file or to file something? At a very reasonable attorney’s rate of one hundred fifty dollars an hour, that is three to four hundred dollars you will not see again.

So, the questions becomes, …what is your time worth? Do the math. One hour of your time at 150.00 per hour pays for the eight hour shift of a fifteen dollar an hour assistant, plus parking, with enough to buy coffee for the two of you [figuring those fancy latte thingies in a large size]. Isn’t a free Saturday worth that? Two hours of billable time per week pays for another shift. Thus two or three hours of your time means you can afford a part time assistant, who will more than earn their pay if you help them to do so.

Here are some of the things a new assistant can do which require minimal or no training – copies, organizing files, filing [once they know where and to whom the filings go] of pleadings, motions, mailings, getting stamps and office supplies, dropping off items to other attorneys/clients. With some care and training, [and every hour spent training a new person is an hour that reaps gold] a good reliable assistant can gradually learn to update your calendar, answer the phones, contact clients and courts on your behalf when you are late or in another county, take payments from clients, help you prepare and file vouchers on appointed cases, etc.

Alternatives to a full or part time assistant

There are many ways to use some of the essential services that an assistant performs without actually getting an assistant. Let us start with a quick list.

Dictation services and apps – If you are a smartphone addict, get Dragon dictation, and learn how easy and efficient it is to create an email, a text, or notes by talking into your smartphone while driving or walking or standing around having a smoke. Siri has some of this function on the iPhone, but it is frankly not as fast. There are also secretarial services that will type up letters and correspondence by dictation on tape or via MP3 file. There is a service called Speak-Write which does this specifically for lawyers, and they have both software for taking MP3 files from a digital recorder or your computer, AND they will let you call in to dictate a motion over the phone. Simple, affordable, and no messy employee problems.

Organizing and filing – If one has a general practice, and is comfortable working from home, efiling makes good sense, and will be mandatory for civil matters in Texas in 2014. This saves one a great deal of time and effort, and should be embraced as a way to avoid that nasty rush hour traffic. It is mandatory for federal criminal filings, and will likely become easier and possibly mandatory for state criminal filings and appellate filings at some point, though we are not there yet. Likewise there are office organizing services and secretarial services that will go to your office and create, then maintain, a simple filing system and help organize your files such that your workspace becomes amazingly efficient. They can be hired on an “as-needed” basis, and it still makes the same sense economically to pay them sixteen bucks an hour to do this while you are billing four hours of productive motion crafting on a case at 150.00 per hour.

Free help – Last, there are some ways to get some assistance on the true “cheap”, and they are called interns. Most law schools and para legal programs in the area have such willing serfs, er…people… available for either academic credit or real world experience necessary to get them paying jobs [eventually].

I hope this has proved useful and at least stimulated some thoughts on how your practice can grow with just a little help. Many hands make the load lighter.

Good luck! Paddy

Practice Pointe: Setting Up Client Files

June 9, 2015 Leave a Comment

By JoAnne Musick

So, you have a new client; whether that client hired you or you were appointed by the court, you need to get a new file opened and set up so you can get to work. In my office, we use a checklist (below) to make sure we have preliminary information about the client and his case. Every client needs a file, even if you choose a paperless office!

We start with a contact sheet (our happen to be on yellow paper to make them easy to spot on a desk and in a file). The contact sheet is created when the client (or his family) first calls the office. This is replaced with an order of appointment for non-hired cases. The contact sheet has preliminary information from the call so that the attorney can start to evaluate the case and keep notes. This contact sheet will exist on every potential client contact. It tracks when an attorney speaks with the potential client, what was discussed, whether an in-person meeting was set up, etc. So even a call that doesn’t result in a hiring is tracked and kept for conflict purposes and institutional memory, if you will. We have found that a call from a client “shopping for a lawyer” will often result in a later call to set an appointment or meet. And with the contact sheet, we will know everything that has been previously discussed with the client or family. Once the client hires, that sheet ends up in the client file.

Our office pulls the JIMS or other district clerk data on all new clients and potential clients (current charge and any priors). So this is included in our checklist for setting up the file. When the file is created, the legal assistant checks to make sure all of that information is included in the new file.

We have every client (retained or appointed) fill out a “client information sheet”. This two page document has name, address, phone numbers, relatives who may know client’s whereabouts, the charge or legal matter, a space for client to self-report priors (so we can cross check), the complainant’s information (when known), and a space for client to add anything he wishes for the attorney to know up front.

It’s also important that every client sign a contract, so we include this as a part of our checklist. (If appointed, the order of appointment serves the same purpose.)

We send an engagement letter to each client, confirming that we are retained or appointed to represent them and what they can generally expect. It also gives instructions to clients about the use of social media, not talking to anyone other than their lawyer, etc.

Our checklist is a simply one page list for opening the file so that assistants and lawyers alike can quickly make sure that all preliminary information is in the file and available as work begins. Again, this is just an example of how we open our files, and I hope it is of help to those starting their practices or looking to hone their procedures.

Practice Pointer: Managing Client Expectations

June 9, 2015 Leave a Comment

By: JoAnne Musick

What does your client expect? Knowing what she expects can help you meet those expectations. Knowing what she expects can help you redirect those expectations when they are unrealistic. Communication is key in this regard.

When you first meet a potential client, it is important that you ask her what she expects. Does she expect to walk? Does she expect to go to trial? Does she expect to plea-bargain her case? Granted, you will not be in a position at this point to properly advise your client as to the realities of those expectations. At an initial meeting, you are not in position to promise, guarantee, or suggest a possible resolution. You may have heard your client’s side of the story, but most often, there is at least one other side to that story. There would be no way to know at this point whether you can successfully negotiate a dismissal. There would be no way of knowing whether your client might prevail at trial. Making a promise as to a dismissal or particular plea-bargain or even a win at trial only sets up unrealistic expectations from the beginning. Some lawyers make these promises to encourage the client to hire them. This is wrong; don’t do it. Instead, explain why you cannot say what will happen because you have not seen the evidence.

When you ask your client what she expects, be prepared to explain why those expectations are likely or unlikely to be realistic. I have clients tell me they expect to plea-bargain their case. That’s fine. I explain that a plea-bargain is certainly a possibility; however, first the case must be investigated and analyzed to see if a dismissal might be warranted or if a reduction is possible. I have clients tell me they expect to try their cases. That’s fine. I explain we are a firm of trial lawyers, and we start out preparing every case as if it will be tried to a jury. But I also ask the client to keep in mind that we have no way of knowing at this point if a particular plea-bargain offer is good or which jurors will show up for jury duty and how they might feel about the evidence because we haven’t even reviewed the government’s evidence or developed our evidence and strategy. So I ask the client to let me help them understand the evidence that the government will try to present so that we can make the best-educated decisions about trial. I also remind the client that while we might believe we have the best air-tight defense, ultimately, a jury makes that decision so we cannot promise or guarantee any particular result.

This key communication sets the tone early for understanding your client’s expectations and managing those. I also begin my representation with a letter to the client (after the contract is signed or after the court appointment is made) that details how to reach me, why I may not be able to take or respond to phone calls immediately, how the case is expected to proceed, and what is expected of the client. This tends to help clients understand the process and what to expect. It also lets them know what I expect from them.

As the case progresses, strive to keep those preliminary expectations under control. You should communicate early and often with your client. This could be via telephone, email, or meetings. But, where any of these conversations come down to the client needing to make a decision (whether to accept a plea-bargain that has been made, whether to proceed to trial, or other similar matters), I prefer to follow-up that meeting with a letter detailing our conversation. It could be as simple as: you have been offered a plea-bargain of X, and the range of punishment for your charged offense is Y; we have discussed the pros and cons of accepting this plea-bargain; and you have indicated you would like to accept/reject/counter that offer. This is simply a letter from you to your client so they see the offer and can think about the consequences of their decision. Obviously, this type of letter will not always be necessary, but where decisions are complicated (like multiple alternative plea-bargain options: conviction with time served or probation), or where the client wants to “think about” the advice you have given, this gives the client a framework of reference while they contemplate their decision or discuss it with family. It also helps prevent a misunderstanding as to what you have told your client during your telephone call or meeting.

Practice Pointer: Communicating with Clients

June 9, 2015 Leave a Comment

By: Nicole DeBorde

A client who feels they have access to you is generally a happier client. Even if you are working feverishly on your client’s case, he has no way to appreciate your hard work if you are not communicating your efforts and work to him.

That said, separately updating mothers, sisters, girlfriends, aunts and cousins can lead to significant misunderstandings. The best practice is to get written permission to communicate about a client’s case from the client. This permission should be specific as to the person with whom communication is allowed. Even if a client gives a lengthy list of people who can discuss the case with me, I limit my conversations to a person designated by the family as a spokesperson for the family.

I always invite the client to call or make an appointment to come in whenever they feel it is helpful or necessary to discuss the case. When the accused is in jail, accepting collect calls is usually helpful. I always stress to the client that the calls are recorded, but often times the calls are questions about court dates or other basic procedural matters. If a client has a more specific question, comment or concern that needs to be discussed in person at the jail and we arrange a jail visit. For federal clients in custody, I invite them to set up a Corrlinks account so that we can correspond by email on non-sensitive matters. Clients are typically very grateful for a lawyer’s accessibility, and sometimes just knowing the lawyer is available to answer questions cuts down on anxiety. I make it a point to call clients back the same day or the next day at the latest whenever possible. This includes while I am in trial even if it means returning the calls by cell phone in the evening. Clients who are not called back promptly will take it personally and feel mistreated. Promptly returning calls is great for future business as well as keeping the clients you have happy. Far too many State Bar disciplinary cases are the result of failure to communicate with a client. This is a very easy problem to avoid.

Sometimes, I run into a client who is insistent on doing the opposite of what I am advising or who asks the same questions repeatedly as if the questions have not ever been addressed. In these circumstances, I will write down the information in a letter and even sometimes have the client initial my copy of the letter. This is NOT something I file in court. It is a document for my file and for the client to have something they can refer to if they are having trouble remembering what was discussed. Sometimes having the information to read helps significantly when a client has had difficulty either believing or understanding information.

Many client-lawyer disagreements can be avoided with simple communication. Taking the time to make sure the client’s questions are answered is always worth it – for the lawyer’s peace of mind and the client’s.

Practice Pointer: Firing a Client

June 9, 2015 Leave a Comment

by Pat McCann

If there is one group who should know about bad relationships, it is criminal defense lawyers. We could write books on surviving them, with chapters by local experts [you all know who you are!] but here is one topic that may not get discussed enough – getting rid of bad clients. We all have ones we want to dispense with, appointed or hired, and we all often, in a similar view to our perverse pride in surviving bad relationships, continue to represent them as badges of honor. However, my uncle, who is semi-retired now, had a great point once over dinner; he asked me “If ten to twenty percent of your clients are taking up fifty percent of your time, aren’t you hurting your other clients by keeping them?” That was my wake up.

Here are three simple questions to ask in determining whether you should fire a client. Do you cringe when you hear they are on the phone or see their name come up on your smarty-pants phone? Do you deliberately avoid setting appointments with them? Do you consistently lose your temper with them, or consistently struggle? If the answer to these is “yes”, fire them. Here is how:

Withdrawing from a case requires notice to the client [should be in writing sent certified mail, return receipt requested, NOT email] with a full statement of all settings remaining, availability of the file for pickup or the file itself returned, and a letter explaining, short and sweet, that either they have failed to follow advice or pay you, or that communications have broken down so badly that the attorney client relationship is irreparably compromised. You will also need to file notice with the courts, and if you are appointed, a motion requesting withdrawal [which can sometimes be handled informally by approaching the judge and explaining, without revealing confidences, that this just ain’t working] and ask for another lawyer to be appointed. Do it, and when you feel that sense of relief, you will know you did the right thing.

Practice Pointer: Do You Allow Mom to Attend Client Meetings?

June 9, 2015 Leave a Comment

By: Nicole DeBorde and JoAnne Musick

Of course, the answer is it depends. It can definitely be helpful for family members to hear about general matters like courtroom procedure, how long various steps will take, what you expect to happen and when and what you need generally from your client. Often, the client will be seeking the opinion of these family members, so it is better to have them accurately informed.

On the other hand, it is clearly a problem to have family members in a meeting where the client will be discussing his actions or involvement in a case when that information could later be revisited in court in the form of testimony from those same family members under cross.

Often times, I choose a middle ground. I include family members (with the permission of the client, of course) in that portion of the meeting which will allow them to hear the general information about the case and expectations. I also invite them to ask any questions, and I answer the questions I can without violating a confidence or sharing information about the facts of the case. Sometimes the family members already know the details of the case either because they are witnesses or the client has told them details prior to my engagement in the case. In these instances, I sometimes allow the client’s family to remain for some fact discussion. Usually though, after general discussion has been had and general questions have been answered, I excuse the family members to the lobby and continue the meeting with the client in private to discuss the details of the case. Remind the family during the general information session that attorney-client privilege protects the client and will be destroyed if they are present while you discuss facts and circumstances surrounding your representation. Explain that the privilege exists to protect the client as well as the family (i.e. family could be subpoenaed and forced to testify against the client should the client discuss details with them). In my experience, most family members understand this concept and would not want to be forced to testify against the loved one.

Also, it is important to make sure it is the client’s will being done throughout the representation and not the will of an overbearing family member. I make sure to ask the client privately about matters requiring a choice during the representation.

Overall, including family members in meetings with the client can cut down on misunderstandings and help the family appreciate the hard work you are doing for their loved one. But, keep in mind; there are some things that must be discussed with the client in private even when the family wants to participate in order to preserve the privilege and confidentiality of your representation. In simple terms, make sure the client’s interests always come first. Remember the family wants the best for the client, that’s why they have come to see you, but they do not automatically understand that too much involvement can be detrimental so politely explain this to them and move on.

Can I represent two co-defendants?

June 7, 2015 Leave a Comment

Whether or not to represent co-defendants is often the subject of query and debate. While the answer is not always clear, the best practice is certainly to avoid representing co-defendants because of an apparent or potential conflict of interest.

The Texas Disciplinary Rules of Professional Conduct address conflicts of interest in Rules 1.06 through 1.09, with each rule addressing differing situations. A look at Rule 1.06, Conflict of Interest: General Rule, and its comments reveals that conflicts are to be avoided because of the duty of loyalty a lawyer owes to his client.

Generally speaking, as addressed in Rule 1.06, a lawyer shall not represent opposing parties to the same litigation. This makes sense, and normally, it is the defendant and the government who are opposing parties in the same litigation. But, what about co-defendants? Do they share the same position in relation to the government, as an opposing party? Do they have substantially different possibilities of settlement of the claims or liabilities in question? Is there a substantial discrepancy in their testimony?

It’s important to look at Rule 1.06 and its comments when addressing these questions. “An impermissible conflict may exist or develop by reason of substantial discrepancy in the parties’ testimony, incompatibility in positions in relation to an opposing party or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question.” Texas Rules Rule 1.06 cmt. 3. “Such conflicts can arise in criminal cases as well as civil. The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one co-defendant.” Id. (emphasis added).

Why is that? Let’s explore a couple of issues, among many that may arise. Where co-defendants have substantially different possibilities of settlement (i.e. different bargaining positions based on culpability or background) there is at least a potential for a conflict of interest between the co-defendants. Where their testimony or version of the facts differs, there again exists at least the possibility of a conflict of interest. As the lawyer, which client’s bargaining position is more important, whose version of facts is more important? That’s the inherent conflict…which client do you favor? Let’s assume two co-defendants, A and B, participated in a robbery. Both have asked you to represent them. A says they worked together and planned and executed the robbery. B tells you that A was the mastermind, having done this sort of thing before, and he should have a lesser or mitigated sentence based on lower culpability. Do you tell A to take the fall and help B get a lesser sentence? Do you tell B that he should keep quiet about A’s planning and leadership so that A can get a lesser sentence? What if both clients want to testify and their version of the facts are not the same? What if their defenses are inconsistent? In this over-simplistic example, it’s clear that one lawyer should not undertake to represent both clients as there is a real conflict. Sometimes the conflict is not quite as clear. But in almost every criminal case there at least exists the possibility for a conflict between the two clients.

Where either a conflict exists or an apparent conflict may exist, before you can represent the two clients, the clients must each provide informed consent to the representation. Because the rule is meant to protect the client, Rule 1.06 recognizes that a client can consent to a representation that would otherwise violate the conflict of interest rule if such consent is provided after sufficient disclosure. See Texas Rules Rule 1.06(c)(2) and cmts. 7-11. Informed consent must be thorough and complete with full disclosure to each client of the possible effects of the dual representation on the exercise of the lawyer’s independent professional judgment on behalf of each client. Consent further must be in writing, signed by each client. See Texas Ethics Opinion 448 (1988).

Should you decide a conflict does not exist or should the clients execute informed consent for dual representation, the court may still prohibit the dual representation. In a criminal case, inquiry by the court is generally required when a lawyer represents multiple defendants. Texas Rules Rule 1.06 cmt. 17. And, where the conflict is such as clearly to call in question the fair or efficient administration of justice, opposing counsel (i.e. the government) may properly raise the question. Id.

So, again, you ask, Can I represent two co-defendants? The bottom line is that there could be circumstances in which you could. But all too often a real or potential conflict will keep you from adequately and appropriately protecting each client’s individual interests and advocating each client’s individual position. This is why the comments warn that lawyers should decline, in most cases, to represent more than one co-defendant. The better practice is to simply represent only one!

Evaluating the State’s Offer

June 6, 2015 Leave a Comment

Evaluating the State’s Offer
By Nicole DeBorde

How do you know whether the State is making a “good” offer? You cannot know until you have done all the work necessary to properly evaluate the case. What you need to properly evaluate the case is almost always more than what is in the state’s file. While the state’s file is a very good starting point, it rarely should end the inquiry. Once you have reviewed the offense report, statements and all other materials in the file, you should discuss the items and reports with your client. Are there other witnesses you should send an investigator to interview? Do you need to subpoena dispatch records, MDT’s, blood records, CPS records, medical records, audio and video recordings, social media records, etc? Do you need an expert to evaluate some forensic conclusion?

When you are the person suffering the consequences, a low offer from the state on a case they cannot make is too high. Your client is depending on you to know whether the state can make the case from a legal standpoint. While your client may be willing to jump on a low offer, it may not be the right thing if the state’s case is weak or cannot be made. As a lawyer, you simply cannot know whether the offer is a good one unless you have done the work to evaluate the case. Remember that the state is assuming the information they have in the report is accurate and based on solid science. It is a terrible disservice to a client for a defense lawyer to assume the same.

Collateral consequences should also be given serious consideration. What type of sentence will trigger which collateral consequence? Does the client hold a license which could be jeopardized? What is the client’s immigration status? Does the client need to travel internationally? Does the client like to hunt or have firearms? What will happen to the client’s driver’s license? Can a deferred adjudication be sealed? What is the difference between sealing and expunction? Is a deferred really dismissed or will it remain on record for public view? (You know, but your client needs an explanation too.) Because I do parole work, one of the scariest things I hear in the courthouse halls is misinformation about when a defendant will “get parole.” Almost all the information I overhear being imparted to the accused considering a prison sentence in the halls or holdover is incorrect. The client is depending on you to know what the consequences of their guilty plea will be. If you do not know, do not guess. Call an expert in the area of concern, whether it be parole, immigration or any other collateral consequence.

Whether the state’s offer is a good one depends on many factors. Ultimately, the client will decide whether the state’s offer is a good one. Good attorneys should be able to clearly explain all of the risks, benefits and consequences associated with taking an offer and with rejecting it. Once you have explained all of the possibilities, the client can make an informed decision about how they wish to proceed.

Thankful for Heart

May 26, 2015 Leave a Comment

We are so quick to point out the bad rulings w FullSizeRender-2 e get. Let’s take a moment and be thankful for the judges who immediately cancelled their courts this morning in light of flooding. They took to social media to get the word out or had their staff text.

Thanks to Judges Ryan Patrick, Kristin Guiney, Catherine Evans, Brock Thomas, Susan Brown, and Jay Karahan for the compassion, saving folks from driving downtown needlessly, and for the heads up on social media! (If there were others, we missed them)

Practice Pointer: Ethical 8

Practice Pointer: Can You Afford an Assistant?

Practice Pointe: Setting Up Client Files

Practice Pointer: Managing Client Expectations

Practice Pointer: Communicating with Clients

Practice Pointer: Firing a Client

Practice Pointer: Do You Allow Mom to Attend Client Meetings?

Can I represent two co-defendants?

Evaluating the State’s Offer

Thankful for Heart

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