2: What Should I consider Before I Hire a Criminal Defense Lawyer?
In the first chapter, we emphasized the complexities of the legal system. With myriad codes, decisions, procedures, guidelines, and jurisdictions, hiring a lawyer makes a lot of sense if a person faces any type of legal challenge. When non experts respond to the legal system without counsel, they can lose their rights or expose themselves to further problems. Even experienced attorneys hire lawyers when they anticipate that they may face problems from the legal system.
Since the legal system is so broad, attorneys tend to specialize in one or more practice areas. An attorney that specializes in taxation, for example, would likely know a great deal about the tax code and how to create structures that minimize liability. Yet a tax lawyer may not know much about federal criminal procedure. Likewise, a lawyer that works exclusively on sentencing matters in federal criminal court may not be the best attorney to hire if that person wants to negotiate a severance agreement with an employer.
With the law, as with any profession, it’s crucial to hire experts.
If someone learns that a representative of law enforcement is asking questions, that is a good sign that an investigation is underway. And it’s a good sign that the person needs to hire a criminal defense lawyer. The investigation may be civil, with questions from representatives of the SEC, the FTC, or state regulators. Since civil investigations frequently lead to criminal indictments, it’s crucial to get appropriate guidance at the soonest possible time.
When the questions come from the FBI or DEA, the problem is more immediate. That’s an obvious sign that a criminal investigation has begun. In either case, whether questions are coming from civil or criminal investigators, the time is ripe to begin researching lawyers.
As the cliché holds, in the land of the blind, the one-eyed man is king. It may be normal to call a friend or acquaintance to ask for free legal advice if a person learns that government regulators are asking questions. That friend may be a business lawyer, divorce lawyer, or labor lawyer. Obviously, any licensed attorney knows more about the law than a layman. Yet if a person lacks subject-matter expertise—even if the person practices law in another area—consider asking for a recommendation for an expert rather than asking for legal advice about a case that could potentially lead to criminal charges.
If a person has been charged with a crime, that removes ambiguity. With any criminal charge, a person’s liberty, livelihood, and reputation may be at stake. Defendants know the jurisdiction, the type of charge, and to some extent, the potential exposure. A person that faces a state charge for vehicular manslaughter would do well to hire a lawyer that specializes in criminal law, in the specific jurisdiction. On the other hand, a defendant that has been indicted for fraud in federal court requires a lawyer that specializes in white-collar criminal defense, with expertise in federal criminal proceedings and federal sentencing.
Given available resources, take affirmative steps to choose the right lawyer, in the right jurisdiction, with the right expertise.
Bars and Jurisdictions:
Each state has a professional association of lawyers that is known as the state bar. The state bar is responsible for issuing licenses to qualified members and overseeing how they practice law in a specific jurisdiction. To become a licensed attorney in any given state, a person must:
• Graduate from a law school accredited by the American Bar Association,
• Pass the state bar exam, and
• Have the appropriate moral character—as determined by the bar association—to represent others in a court of law.
Besides requiring a lawyer to have a license from the state bar, courts may also require a lawyer to go through additional screening or training in order to practice in a specific jurisdiction.
What is a jurisdiction?
In the first chapter, we noted that the United States has many criminal justice systems. Each state has its own criminal code, and each state is its own jurisdiction. Different levels of trial courts resolve disputes, or find facts, in each state system. The states will have an intermediate appellate court that reviews trial court decisions. And each state will have a high court that reviews appellate court decisions.
The federal government trumps state courts, with the U.S. Supreme Court being the highest court in the land. Beneath the Supreme Court, our country has 13 separate circuit courts. The circuit courts are regional appellate courts, overseeing a specific portion of the 94 district courts spread across the entire country. In the 94 separate federal district-court jurisdictions, more than 800 federal judges preside over findings of fact.
Several thousand judges (some appointed, some elected) preside over several hundred jurisdictions in state and federal courts across the country. A lawyer that specializes in one jurisdiction may or may not have expertise in another jurisdiction. For example, a lawyer that specializes in California state court may not be as familiar with federal sentencing law, which requires very specific knowledge.
When hiring a lawyer, individuals should consider what level of expertise the prospective lawyer has in a specific jurisdiction, and in the domain that applies to the specific type of case.
In 1963, the U.S. Supreme Court issued a landmark ruling known as Gideon v. Wainwright. With the Gideon case, the Court found that all people who have been charged with serious offenses have a Constitutional right to a lawyer. If a defendant cannot afford a lawyer, the Court will appoint a licensed attorney at no charge to the defendant.
Before appointing counsel to represent a defendant, the Court may require the defendant to submit a financial statement. After reviewing the defendant’s ability to pay, the court will make a ruling on whether the defendant qualifies for appointed counsel.
Qualifying for appointed counsel does not necessarily mean that the defendant is utterly impoverished. It simply means that after reviewing the defendant’s finances, the Court agrees that the defendant does not have sufficient financial capacity to hire an attorney. The court will then turn to the public defender’s office, or the bar association to hire a lawyer that will represent the defendant.
Regardless of whether the court pays for the lawyer, or the defendant pays for the lawyer, a licensed attorney has a fiduciary duty to represent the defendant. In other words, the lawyer has a legal and ethical responsibility to represent the defendant to the best of his or her ability. Many lawyers aspire to build careers as public defenders, suggesting that they place a high value on social justice and assisting people in need.
Despite having to manage extensive caseloads, public defenders are often extremely effective advocates for their clients. They have access to an abundance of training and resources, and they frequently limit their representation to specific types of cases in specific jurisdictions.
Although a defendant has a Constitutional right to counsel, the defendant does not have a right to his specific choice of counsel. When a court appoints an attorney to represent a defendant, the defendant should work to assist his attorney in the best way possible.
While the attorney will assess evidence and the prosecution’s ability to prove a case, the defendant can help. Although the defense attorney will begin by reviewing the charges and the evidence, it is the defendant’s responsibility to speak honestly, providing background, context, and any evidence that may exonerate or mitigate the charges. The more effectively a defendant can help an attorney understand what happened, the more a defendant empowers the attorney to build a defense.
If you are ready to hire a criminal defense lawyer, it’s important to think about a budget. Ordinarily, attorneys bill by the hour. The hourly rate will depend upon a lawyer’s experience, reputation, jurisdiction, and area of expertise. In some jurisdictions, lawyers may work for less than $200 per hour. In other jurisdictions, lawyers with specific expertise may charge more than $2,000 per hour, in accordance with market rates. In jurisdictions like New York City, Washington DC, or San Francisco, defendants should expect to pay higher rates than in more rural jurisdictions.
Whether a lawyer charges $200 per hour or $2,000 per hour, defendants should anticipate that hiring a lawyer will be a significant investment. The investment does not guarantee a victory in Court, or the outcome that a defendant wants. But it should guarantee the best possible representation, given the resources available to deal with facts and evidence of the case.
When hiring counsel, consider the duties and responsibilities of a lawyer. In order to provide “the best possible representation,” lawyers must review every piece of evidence that prosecutors will consider. If there are multiple defendants in a case, the lawyers may have to review evidence against all of the defendants. Lawyers enhance their value by reviewing case law, statutes, rules of procedure, and judicial decisions that may or may not have anything to do with the case at hand. Lawyers may need to hire investigators, or they may need to depose potential witnesses.
Defendants that hire a criminal defense lawyer should expect lawyers to bill in accordance with their hourly rate for every minute they devote to the case. Those high hourly rates allow the lawyer to continue learning, or practicing, by staying current with relevant decisions—even though they’re not billing for that time. If more than one lawyer is working on a case, the defendant should expect to pay hourly rates for multiple lawyers.
Before hiring a lawyer, defendants should consider their financial resources and be realistic about the length of time a lawyer will need to prepare. A defendant may have specific facts and know the origins of the case. Yet lawyers approach a case with a blank slate. They may offer a free consultation (as we do), but to truly mount a defense, they need to invest considerable amounts of time. Defendants will pay for that time.
The lawyer will have to sift through evidence. They may have to listen to telephone recordings that, cumulatively, last for dozens of hours. If the government confiscated computer files, there may be thousands of emails or text messages to read. Lawyers may need to interview witnesses, or review transcripts of what witnesses said in other proceedings.
To prepare a case effectively, lawyers can easily devote hundreds, or even thousands of hours, depending on complexity. Without sufficient preparation, a lawyer may not be able to give an accurate assessment of the best possible outcome. They may not even be able to advise whether it makes sense to proceed through trial or pursue a plea agreement.
Conflicts and Retainer Agreements:
In some cases, judges will not allow a lawyer to withdraw from a case after a lawyer signs on to represent a criminal defendant. For that reason, lawyers typically take a risk-averse approach when choosing which defendants to represent. They will not want to represent new clients that could potentially conflict with their representation of other clients.
Lawyers may ask defendants to sign “retainer agreements” before they accept a defendant as a client. The retainer agreement should detail hourly rates for each person or position that may work on the case. Partners may work at one hourly rate, associate lawyers may work at other hourly rates, paralegals may work at other hourly rates, and investigators may work at other hourly rates.
The retainer agreement may require the defendant to deposit a specific amount of money into the lawyer’s trust account. The defendant consummates the agreement by signing a contract and depositing funds into the lawyer’s trust account.
The lawyer should keep detailed records, recording how much time each person on the lawyer’s team devotes to the case. At the end of the billing cycle, whether weekly, bi-weekly, or monthly, the law firm should create a statement showing billable hours. The lawyer will transfer funds (from the retainer) out of his trust account into his business-operating account to get paid for those billable hours. Some lawyers require the defendant to replenish the trust account with more funds at the start of each month, as specified in the retainer agreement.
All defendants have a constitutional right to plead not guilty and pursue the case in court. Scorched-earth defense strategies, however, can come at a high cost. With legal fees for trial that can easily rise to hundreds of thousands of dollars, and the threat of more onerous sanctions for those found guilty after trial, the vast majority of defendants settle criminal charges with plea agreements.
Prosecutors and defense attorneys may or may not be amenable to settling a case early. Sometimes, lawyers find it advantageous to push prosecutors to the limit in strategic acts of brinksmanship. If prosecutors believe that the defense team may be able to prevail, they may be more receptive to a favorable plea agreement. On the flip side, prosecutors may want to settle cases early in order to preserve prosecutorial resources.
In the federal system, prosecutors resolve the vast majority of cases with plea agreements. In exchange for the defendant’s admission of guilt, prosecutors may make concessions. Those concessions may put limits on a defendant’s exposure to sanctions.
Every case is different, and defendants should work closely with competent legal counsel when making decisions. Defendants should also do everything within their power to understand the system and all that follows after a criminal conviction.
When a defendant educates himself on how the system operates, he qualifies himself to make decisions from a position of strength. Too many people that come into the criminal justice system fail to understand the opportunity costs that come with every decision, including the length of time that passes before a guilty plea.
When hiring counsel, it’s crucial to be honest to save time and to help the attorney quarterback decisions. But hiring an attorney does not absolve the defendant from investing time and energy to learn more about:
• Preparing for Sentencing,
• Understanding sanctions that may follow sentencing,
• Preparing for a journey through the federal prison system,
• Preparing for the earliest possible release from prison,
• Understanding how to get best outcomes after federal prison
In subsequent chapters, my partners and I will offer insight defendants may consider on those subjects. The next chapter will offer thoughts to consider for those who need to hire a criminal defense lawyer.
P.S. I will post chapter 3 tomorrow.