3: How to find a Criminal Defense Lawyer

When I needed to find a criminal defense lawyer, I was young, locked in a jail cell, and in a completely different frame of mind than I’m in today. Now, as a law professor and a lawyer, my role is different. Rather than viewing the system from a defendant’s perspective, I devote most of my professional energy to bringing systemic change. I work toward reforms that will help more people get best-possible outcomes.

The sooner a person starts working toward a best outcome, the better.

My colleague and co-author, Justin Paperny, interacts with people that are new to the system every day. Through this website and PrisonProfessors.com people search for information that will help them navigate complexities of a criminal charge.

Justin told me that one of the first questions defendants ask him is for advice on how to find a criminal defense lawyer. He offered anecdotes that any defendant would be wise to consider.

Justin Paperny: How to find a criminal defense attorney

Darren had been in business for more than a decade, and he worked with corporate lawyers extensively. He contacted me when he realized that some of his decisions on the job were about to expose him to problems with regulatory agencies, and possibly to challenges with the Department of Justice.

Darren’s problem reminded me of my own challenges. I was a stockbroker at UBS when I learned that some of my decisions brought me to the attention of officials at the Securities and Exchange Commission. I knew that I needed a lawyer, but I didn’t know how to find a lawyer.

When authorities like the SEC, the FCC, the FTC, or the FDA start asking questions about an individual, it’s always best to find a lawyer. Darren had the right instinct to research steps he could take to find a lawyer.

By the time we spoke, Darren had already spent a lot of time on our website. Since he could identify with my background, he reached out. He asked how I went about finding a lawyer to represent me. I told him the truth: an acquaintance told me to hire a lawyer from the Jones Day law firm.

“I’ve heard of Jones Day,” Darren said. “They’re supposed to be great. How did it work out?”

Darren is right. The lawyers at Jones Day are some of the best litigators in the world. With more than 2,500 lawyers that practice across the US, Europe, and Asia, Jones Day has a strong reputation. But there is a cost that comes with hiring a firm of Jones Day’s caliber. Their lawyers command some of the highest fees in the legal profession. As I recall, I paid $50,000 to get in the door, not knowing whether they could help me or not. They exhausted those resources within the first 24 days.

I would have liked to have known more about legal billing when I went in. As a result of hiring Jones Day without a full understanding of costs, I put myself at a huge disadvantage. That decision cost me both time and money.

At first, the cost upset me. Then I realized, I’m the one that didn’t know how to find a lawyer. And as a result of my ignorance, I made costly mistake.

When I realized that I couldn’t afford to pay a mid-six-figure legal fee, I had to let Jones Day go. Then I went back into the marketplace to start over with a different lawyer.

Finding a lawyer is easy, I told Darren. Finding the right lawyer is another matter.

I told him about another client of mine, Jim, that used Google to find the lawyer he hired. The search pulled up an endless list of lawyers. Each of them had well-designed websites that touted their expertise.

“I didn’t know what to expect, or how to hire a lawyer,” Jim told me.

Jim scheduled an appointment with the first lawyer on the list. The lawyer listened to Jim’s description of the problem. “Based on what you’re telling me,” the lawyer told Jim, “I think I can keep you out of federal prison.”

That statement was exactly what Jim wanted to hear. But it wasn’t what Jim needed to hear. Nevertheless, by pledging that he thought he could keep Jim from going to prison, Jim agreed to sign a retainer agreement and provide the lawyer with a cashier’s check for $50,000. The agreement indicated that Jim was required to keep $50,000 in the lawyer’s trust account at all times. The lawyer would bill at the rate of $800 per hour.

At least Jim knew what he was paying. Or, I should say, he thought he knew. The lawyer surprised Jim on his next visit. After reviewing Jim’s case, the lawyer said he wanted Jim to hire a second lawyer. Further discussion led Jim to provide the second lawyer with an additional $50,000 retainer, and the second lawyer would also bill at the rate of $800 per hour.

When Jim sat in meetings, both lawyers would be present. Jim didn’t realize he was paying $1,600 per hour to help the lawyers understand complexities of his case. He felt as if the first lawyer had misrepresented himself in order to get the case. Since Jim already invested $100,000, he felt he too far down the road to make a change.

Darren listened to my story and felt discouraged. If Jim didn’t know how to find the right lawyer, and I didn’t find the right lawyer, he didn’t how to proceed. He said that he had worked with several business lawyers over the course of his career.

“Wouldn’t that be a good place to start?” I asked Darren. If he had a good relationship with business lawyers, they might be in a position to recommend a lawyer with the right type of experience to recommend him on a potential criminal matter.

Darren could turn to those resources for help. He did not want them to know about his current predicament, or potential predicament. For that reason, he was doing his own research, which led him to my website at WhiteCollarAdvice.com.

We started working together and came up with a plan. Anyone could follow the same plan. Since Darren wanted to remain anonymous, at least for the time being, I did some preliminary work on his behalf. I wanted to filter prospective candidates that might agree to work on his behalf.

How to Find a Criminal Defense Lawyer – Use Contacts:

Since Darren couldn’t reach out to his contacts, I decided to reach out to mine. I called David Rosenfield, of Herrick Feinstein in New York. I called Mark Werksman, of Werksman, Jackson, and Quinn, in Los Angeles, and David Willingham, of King & Spalding, in Los Angeles.

Our team has had extensive experience working with those three lawyers. Like all of the lawyers with whom we have worked, we have enormous respect for them. They’ve proven to be trustworthy and responsive to communications, which is important to any defendant.

Since Darren was from Detroit, I told the lawyers that I was helping him to find a lawyer in his jurisdiction. Although lawyers have the capacity to work in different jurisdictions, it’s important to recognize that there are costs associated with making such arrangements. When hiring a lawyer from a different jurisdiction, the out-of-state lawyer must coordinate with a lawyer that is already licensed to practice in the jurisdiction. Generally, there is a fee for providing this service. The client would have to pay this fee.

Further, there be an intangible value in hiring a local lawyer that has good working relationships with prosecutors and judges.

Darren wanted to preserve costs, so I asked my trio of contacts to connect me with competent lawyers from the Detroit area that practiced in the area of law that would help Darren.

Any defendant searching to find a lawyer may want to research the lawyer’s area of expertise. If a lawyer has extensive experience in a given area, that lawyer may be more familiar with case law, statutes, arguments, and decisions that could prove beneficial.

Within a few hours of reaching, I had a list of 10 lawyers in Detroit that people I trusted recommended. Each lawyer on the list had specific experience with the specific type of case that Darren could potentially face.

I made initial contact with an email, explaining that I was vetting lawyers. That research helped me to start filtering. By asking questions, I learned:

 About each lawyer’s rate for billable hours,
o Important to know so a defendant can get an idea of how much to budget. In some cases, a lawyer may be able to resolve a plea negotiation and guilty plea in less than 100 billable hours, preparing for trial in federal court would likely require several hundred billable hours.

 About the lawyer’s position on accepting a flat fee for the entire case,
o A flat fee may or may not serve the interest of the defendant. Every case is different. On the plus side, a defendant that has a flat fee knows exactly how much to budget. On the negative side, a lawyer that receives a flat fee may be disinclined to devote much time to the case after he is paid.

 About the types of cases he or she practiced,
o A lawyer that specializes in defending tax cases may not be the best fit for a defendant facing criminal charges related to mail fraud that could result in the loss of liberty.

 About the lawyer’s expertise in sentencing matters,
o More than 75 percent of the people that face charges in federal court eventually have a sentencing hearing. What level of expertise does the prospective lawyer have with sentencing in the given jurisdiction?

 About the size of the lawyer’s team,
o A lawyer with a large team may be able to outsource work to associates or paralegals that bill at a lower hourly rate. The lawyer will have discretion, but it’s helpful to know that the lawyer is cost-conscious of a defendant’s resources.

 About the lawyer’s philosophy on communication with clients,
o Some lawyers make themselves readily available to defendants, even providing cell-phone numbers for communication. Other lawyers prefer to work independently, leaving defendants out of the communication loop.

 About whether the criminal defense lawyer would be receptive to accepting 5-hour retainer to get started, just to see if it was a good fit.
o Some criminal defense attorneys will not get started on a case without a minimum retainer. In federal cases, that initial retainer often exceeds $50,000. As Jim experienced, it’s difficult to make an assessment on an initial free consultation.

That model proved worthwhile for Darren. John Dakmak, a senior criminal defense lawyer with Clark Hill, in Detroit, agreed to take an initial retainer for a few hours of work. John was able to make some phone calls and give Darren a better sense of where things stood in the investigation. The relationship has served Darren extremely well. Despite an investigation that has lasted for several years, Darren reports that Mr. Dakmak has always been responsive. He offers a glowing endorsement for the representation he has received.

If you’re searching to find a criminal defense lawyer, create a plan.

To the extent that it’s possible, create a series of questions that will help you gauge whether the attorney is the right fit for you. It’s important to be honest about your current situation and what you expect. If you go into a meeting with a lawyer and minimize your conduct, you may set yourself up for a bad outcome.

Brian, for example, was a director with a large financial services company. His employer had an “officer’s and director’s” insurance policy that would pay his legal fees. When federal authorities indicted him, he hired an experienced white-collar criminal defense attorney that would send all bills to the insurance company. The law firm launched a scorched-earth defense strategy, and quickly burned through the $500,000 cap on legal fees. When that insurance bill expired, the lawyers told Brian that he should plead guilty, and that he would be responsible for the remainder of his bill—which amounted to an additional $75,000.

“I always knew that at the end of the day, I was going to plead guilty,” Brian told me. “When I went to find a lawyer, I went along with what they said. They wanted to contest every document. But every time they read a document, they charged exorbitant fees. There bills showed that I was burning through more than $20,000 a day in legal fees.”

If it’s true that Brian knew he would eventually plead guilty, when he looked to find a lawyer, he may have been better suited to find an attorney with a strong track record of making great plea deals.

At the end of the day, any defendant that needs to learn how to find a criminal defense attorney should follow the path that Darren pursued.

To the extent possible, use contacts to ascertain the expertise, honesty, and competence of lawyers with regard to specific types of cases, in a specific jurisdiction. Approach those lawyers with a list of questions that will help you determine if you think that you work well together. To the extent possible, ask the lawyer to accept a limited engagement to test the waters. Most importantly, make certain that you have the financial resources available to support the decision you make.

Michael Santos

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