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Practice Pointer: Can You Afford an Assistant?

June 9, 2015 Leave a Comment

By Patrick F. McCann

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

 

 

Filed Under: Defender, practice pointers Tagged With: assistant, criminal defense, hccla, lawyers, learning from masters, patrick mccann, practice, practice pointer

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!

Filed Under: Defender, Members, practice pointers, Public Trust Tagged With: codefendants, conflict of interest, criminal defense, practice, real conflict, representation

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