How Do I Know if my REAL Lawyer is Doing a Good Job?

Dear Norm:

I was arrested recently, and my family pooled their money together to hire a private attorney. He sure sounds persuasive when we talk to him, and we really believed him when he told us that we made the right call hiring him instead of being represented by the public defender. He seemed genuinely outraged for me when I told him that I was being falsely accused, and promised that he had much, much more time to devote to my case than the public defender had. Since he’s bilingual and speaks the same language as the rest of my family, he convinced them too.

But now this lawyer is telling me that I should probably take the deal from the district attorney. I told him again that I did not want to take a plea bargain. He got really frustrated with me and told me that I was risking YEARS in prison if I didn’t. Then he told me to waive some sort of hearing, and then he set my case for jury trial. This week, he told me that my family had not paid him enough to do a jury trial and that he will drop me as a client. After all this, I’m going to be a public defender client anyway.

Did my lawyer screw me? How are people in my position supposed to know if their lawyer is doing a good job for them? And why is this blog the #4 Google search result for this question?

Help,

Abandoned Client

 

Dear Abandoned,

In July of last year, I wrote a post entitled How Do I Know if My Lawyer Is Doing a Good job? This post, with its accurate-but-uncreative title, was meant to give readers an idea of whether their public defenders are actually representing them well even when they fail to practice the niceties of customer service.

Since writing that post, more readers have found my blog by asking the internet “how do I know if my lawyer is doing a good job” than have by any other method. This question is my biggest source of web traffic. The worried defendants who toss this question into the ether find their way to my blog because it appears to be one of the only websites that attempts to answer this question. The American Bar Association has almost nothing on the subject. The other top search results for this question are advertising for private lawyers who so badly want my despondent readers to hire them.  These readers are better served by searching “bad lawyer” on Yelp! and reading the horror stories.

If you or a loved one are being accused of a crime, my heart goes out to you and you have my deepest sympathy. If you don’t have a legal education, knowing whether or not your lawyer is “screwing” you (another popular search query for this site) may be something you find out only after the important decisions have been made and the money has been spent.

An honest lawyer will tell you the truth about your case up front, not just what you want to hear, before any money is exchanged. Public defenders are probably the least likely to “oversell” what they can and can’t do with your case. You can’t compare your public defender to the lawyer on the billboard or commercial who promises to make all your problems go away. If you find your private lawyer is going just a little too out of his or her way to bash public defenders or court-appointed-attorneys, first ask yourself why this person wants to poach public defender clients, and then ask yourself how this person makes any money representing clients who don’t have a large income. It may be possible that this attorney, who appears at first to be a passionate warrior who wants justice, is actually scavenging for dimes by telling frightful canards about their local public defender’s office.

The decision to go with a public defender or a private attorney shouldn’t be that hard; if you can afford an attorney, then you should hire one. Public Defenders are for those who cannot afford their own attorney and who have no other choice. That being said, a public defender client may have a relative who is willing to cash out their retirement account, take out a mortgage on her home, or sell her car in order hire a private attorney who promises (loudly) to give his case more personal attention than the public defender will. The right to court-appointed counsel is meant to prevent this type of financial ruin. Unfortunately, some regions in the US have inadequate resources for indigent defense and clients living in these areas must make this kind of difficult choice.

Although I never intended Chasing Truth, Catching Hell to be a resource for those trying to figure out how to vet legal counsel, the universe has otherwise failed to provide helpful information. I have seen for myself the kind of damage this type of ignorance causes, so I will attempt to add some information to help those going through this difficult task. Remember that I cannot offer any legal advice over the internet. Although I am flattered that this blog has inspired complete strangers to sing the sad songs of their cases, a reader in need of legal advice should not make major life decisions solely based on the word of anonymous internet sources.

The following are all-too-true tales of clients who became clients of the public defender after being used and thrown away by private counsel:

First Tale of Woe

George was on parole after being released on a felony domestic violence charge. Regardless of the stern warnings and urine tests provided by his parole agent, George really, really liked crystal meth. However, crystal meth can be expensive for the regular user, and George soon ran out of TVs to sell; however, buying enough meth to resell solved both his supply and cash flow problems. Furthermore, crystal meth made it very, very difficult for him to interact with his wife in a constructive way during their divorce. Soon, George had another felony domestic violence case that carried a maximum of 8 years state prison. George also picked up a possession-for-sale case; however, although he had been selling, the police only caught him with 3 ½ grams of the stuff (an amount so common that police use the term “eight-ball” to describe it, since it is 1/8th of an ounce).

I represented George on his domestic violence case; since the DA had accused George of several “strike” offenses, no private lawyer would touch it. George also had a top-shelf public defender on his dope sales case; however, any lawyer worth his or her salt could have talked the DA into reducing that charge to possession for personal use. Unfortunately, George’s fantastic public defender failed to visit him at the jail because she had the gall to be in trial on another client’s case for two weeks. In response, George sold his car in order to hire a hack private lawyer. This private lawyer frightened George with awful tales of what happens when a public defender fails to spend enough time with an individual client, swooped in, took his money, and got him the exact same deal that anyone with a passing familiarity with the metric system could have gotten him.

George realized this prior to his sentencing on the case that I had with him, and wholly without instigation from me. George should have watched out for the following red flags:

  • Only a very special type of lawyer makes the bulk of his money by goading public defender clients to pay more than they can afford: the type that can’t market skills and who thus resorts to marketing fear.
  • This same type of lawyer will push hard to be hired for some of a defendant’s open cases but not others: they want the easy ones whose consequences won’t cause them to lose sleep.
  • If a lawyer promises to fight for you but asks for less than $50,000, this lawyer is not actually planning on fighting for you. If you are innocent and you want your day in court, a felony jury trial represents tens of thousands of dollars’ worth of legal services. If a lawyer talks a big game while arranging for a client to pay his $4,000 retainer at $85 per month, this lawyer will dump you before any “fighting” begins.

 

Second Tale of Woe

Joaquin was brought to the United States by his mother when he was 7 or 8 years old. Joaquin started hanging around with gang members in his neighborhood due to the usual combination of too much idle time, absent/abusive family dynamic, and constant threats to his safety in the poor neighborhood in which he lived. When Joaquin turned 18, an older gang member with a prison record coaxed him into helping with a home invasion robbery. Joaquin and this other man barged into a home, threatened the owner with a stun gun, and made off with whatever outdated electronics they could carry. This experience frightened Joaquin enough to inspire him to leave the gang lifestyle; he got a job as a plumber and was soon expecting a baby. However, years later, fingerprints taken from the scene of the home-invasion robbery matched the fingerprints that Joaquin gave when he was arrested for misdemeanor DUI two years after the home-invasion robbery.

Joaquin’s mom borrowed and sold as much as she could in order to hire yet another hack lawyer. This lawyer told Joaquin’s mom that he would explain that Joaquin was “just a kid” when this took place and that his behavior in the interim proves that Joaquin had changed his ways enough for any judge to cut him a break. Months later, Joaquin is a client of the public defender facing a life sentence because thanks to Hack Esquire, the district attorney added “gang” enhancements to the charged home-invasion robbery.  

Joaquin and his mom learned the following lessons much too late to be of any help:

  • It is natural for a defendant who does not speak English to want an attorney who speaks his language; the family finds it comforting for the exact same reasons. Sadly, some lousy lawyers know this and leverage their foreign language skills to earn quick trust.
  • If a lawyer tells a client exactly what he was hoping to hear and then quickly changes his tone when advising the client to take a plea bargain, one of several awful things might be happening. At best, the lawyer’s rosy sales pitch is meeting the jagged shoals of reality; if this is so, the client needs to ask the lawyer to explain why, after promising to fight for the client, he is now yelling at client in court’s attached holding cell that he is “screwing himself” by not taking a 16-year offer by the district attorney. At worst, the lawyer has just then decided that his client’s case requires much, much more work than his client’s meager finances can pay for.
  • A defendant should always get an explanation of all the stages in a felony case and clarify, before ever cutting a check, what stages in this process are covered by his retainer fee.
  • Finally, a defendant should never be afraid to ask why a proposed plea bargain is worth taking. Seek second opinions if necessary.

The following are general tips that do not have accompanying annecdotes:

Lawyers tend to be persuasive, smooth-talking people. Don’t hire a lawyer because he or she sounds convincing; convincing a potential client is easier than convincing a judge or a prosecutor.

Be mindful of prejudices that might steer you away from a great lawyer; younger lawyers, female lawyers, and lawyers of color often run circles around the middle-aged white men who lurk about my local courthouse.

The best private attorneys are often former public defenders.

The number of jury trials that a lawyer has done is not a perfect or complete metric of that lawyer’s skill and experience; however, it is in fact one very good metric. Don’t hesitate to ask.

As noted previously, don’t retain counsel without a clear understanding of the stages of a criminal case and which of those stages are covered by the lawyer’s retainer fee.

Before paying a lawyer anything, have a serious conversation about your goals for the case and how your lawyer will help you reach them. If you don’t like what they say, seek a second opinion. Depending on the advice you receive, be open to revising your goals in the face of reality.

A good lawyer will not ask you surrender any of your Constitutional rights unless you will receive something from the state of equal or greater value. Ask your lawyer what this is before agreeing to “waive” any of your rights. For readers in California, a preliminary hearing (or “prelim” for short) is a particularly important right, and one of the most common rights tossed away by private counsel. A prelim is your first chance to see witnesses testify against you, hear their testimony, and see how it withstands cross-examination from your attorney. After the prelim, the judge will decide whether there is enough evidence to warrant a trial. The right to a prelim is also the last right that many private lawyers convince their client to waive before dumping them on the public defender. Sometimes, waiving prelim is a good idea, primarily in cases where the evidence at prelim would allow the prosecutor to add more or worse charges; for example, an assault with a deadly weapon can very quickly become an attempted murder depending on how the witness testifies. More often, private lawyers encourage their clients to waive prelim for the sake of dropping the client faster. Again, your Constitutional rights are valuable; idealists might even say that they are invaluable. Do not waive any of your rights unless you are receiving something of equal or greater value in return.

If you find yourself becoming a client of the public defender after having been previously represented by private counsel, be prepared for a very different bedside manner. A public defender will almost always have done more jury trials than a private sector counter-part; if she encourages a person to accept a plea bargain, it is probably because she is thinking of how your case will look in front of a jury and not because she just wants to dump your case as soon as possible. The public defender will not be able to see a client as often or return phone calls as quickly as anyone would like, but this is not necessarily a sign of poor representation. Also, be prepared for some bad news in the event that the private lawyer fouled something up in your case.

And one last thing, and this is something that is as difficult to say as it is to hear: feelings, especially those related to unfairness, have no place in the justice system. In my experience, I have found that the more that clients struggle with feelings of unfairness, the worse decisions they make. You can be offered the best legal counsel in the world, but you may not be able to accept or receive it if you are stuck on how “unfair” your situation is. Instead, you may be tempted to give away your hard earned money to a lawyer simply because he or she did the best job sympathizing with your feelings. You may even lose a good plea bargain that you rejected because it felt “unfair.”

 

Good luck,

Norm DeGuerre

9 comments on “How Do I Know if my REAL Lawyer is Doing a Good Job?

  1. A B says:

    Hey there, I am a criminal defense attorney, and a big fan of your blog. I also worked at a PD’s office for some time (maybe even the same one you do now). I just wanted to respond to some of your thoughts:

    1) The best private attorney’s are often PDs. -I don’t necessarily agree with this. I do agree that often former PDs are better at “taking the temperature” of a court room, because they can alway find a friend in basically every court room in the county and ask what the deal is. I also think that that former PDs are often much better at procedure/calendar issues than those who have never served. There is nothing like sitting on an arraignment calendar for 9 months to help you to get the hang of complicated sentencing issues (Here is an example: try explaining to a private attorney who was never a PD why it is awesome that the DA didn’t see the “nickel” in the facts… A lot of people will just give you a blank stare). All of that being said, there are quite a number of amazing attorneys in criminal defense who were never PDs. If I knew which county you worked in, I could probably list them for you.

    2. The thing about charging someone $50,000 -This is just nonsense. I’ve known plenty of attorney’s who a) take case pro bono, b) take capital cases pro bono, c) take homicide case to trial for $100, etc.
    I don’t want to ring my own bell or anything, but I just had a matter resolve much more efficiently than I expected it to, and I actually just told the client to keep his money.

    In a word, there are plenty of solid attorneys that will work with people’s financial issues without sacrificing their integrity.

    3) I always give a very long speech to every client about criminal procedure (“10 court days/60 calendar days/Reasonable time, bla bla bla) -The reality is that this stuff is complicated, particularly for less sophisticated clients, and trying to lay out a road map of what to expect in advance can often just make people more confused. If I have a sophisticated client, I will absolutely discuss with them the longer road, otherwise, I do my best to

    4) waiving prelim/ waiving time
    There are absolutely valid tactical reasons for waiving prelim. As for waiving time, I do think a lot of private attorneys waive time in an effort to make it look like they are doing more work, or make sure they get paid before the case moves along, but it is certainly not the norm in my experience. In point of fact, at practically every PDs office I know anything about in California, I have never seen a senior deputy PD *NOT* waive time on serious felony matters. The reality is these cases take a lot of time to assemble, and not waiving time on an LWOP is a great way to get rotated to misdo arraignment duty or whatever the unpleasant assignment du jour might be.
    I know when you are a rookie PD there is the cult of “ready”, but the reality is that it is not necessarily always the right thing to do. If you don’t believe me, visit your office’s serious felony desk (assuming you don’t already work there) and see how many people have cases that still haven’t gone to trial even though the client has been in custody for a year or more. If you live in an urban county, it will be a lot.

    Again, big fan, and keep up the good work; I just wanted to play devil’s advocate a bit.

    • Thank you for reading! I’m glad you enjoy my blog. I agree with much of what you have to say. I’ll use the same numbers you do to reply. Please keep in mind that the audience of this particular post is someone who doesn’t have a lot of insider knowledge on how to go about finding a lawyer with a limited income.

      1) You are right that one doesn’t need to have experience as a public defender in order to be a good criminal defense attorney. However, it is very very good experience and many good private lawyers were once PDs.

      2) Perhaps $50k is a lot for a trial where you live, not so much where I live. My point is that $5k is a LOT of money for some of my clients, who may not understand how much, or how little, it will get them. If they want a trial, then realistically, they need to be looking at a very big number when it comes to a fee. I agree that many good lawyers take certain cases at reduced fees or pro-bono, but it’s likely they’re not the run-of-the-mill drugs/domestic violence/DUI charges that occupy the majority of courtrooms most of the time. Most people accused of crimes can’t offer private counsel publicity or the chance to be a hero, so trying to get a lawyer to take their case for free isn’t a terribly realistic outcome.

      3) Explaining court procedure is indeed difficult to someone with a limited IQ, different language background, or who is simply stubborn. My point is that if they are going spend a fortunate on legal counsel, then they should know exactly what is included in the cost. If their lawyer is unwilling to provide them with a satisfactory explanation or is impatient with them, then it should raise a red flag that that lawyer may not be the right fit for that client. In fact, it may be a sign that the lawyer is planning to take their money and run.

      4) I usually waive time for my clients. However, I can pull that time waiver whenever my client tells me to. I only wrote about waiving the prelim, which is a decision that can’t be reversed as easily and one that often hurts less sophisticated clients.

      Again, thanks for reading and thank you for taking the time to comment.

      -Norm

  2. shg says:

    Excellent handling of a very difficult question, NDG. Might I suggest adding an additiona, easy-to-use rule of thumb when considering counsel. The fixed fee is a direct reflection of the amount of time (and thus effort) a lawyer expects to put into a case. It’s just math. If a lawyer charges $X amount for a stage of representation, and a reasonable hourly fee to cover overhead, variable costs and profit is, say $250 (just an example), run the numbers. That will tell a potential client how much time the lawyer plans to spend on his case.

    What many potential clients come to realize is that the lawyer’s fee is based on a plan to make a couple of appearances, then cop a plea, as becomes readily apparent from the calculations. What this means is that all the sweet talk aside, the lawyer never expected to put in the time to fight and try the case, and that it was all just a sale pitch.

    • Everything you have said is true. Retainer agreements would be much more transparent if the “flat fee” were broken down into hours of work and the cost of each hour; such a fee structure would make it very clear how much work (or how little) the retainer actually pays for.

  3. Dan Sandberg says:

    I thought lawyers weren’t allowed to drop a client willy-nilly. Can you please explain the details of this? Is the rule that once they start a jury trial they can’t drop the client?

    • Dropping a client mid-trial is nearly impossible, this is true. However, most of the lousy private lawyers dump their clients on the public defender a ways before trial. Often, they dump their clients after the first preliminary (or “probable cause”) hearing. So long as they are still in the phase where they were scheduling future trial dates for their clients, they can still dump them on the public defender.

  4. The flip side of avoiding unsavory attorneys is, of course, using one for nefarious purposes. People with wealth always seem to have a cadre of lawyers at the ready to advise them and steer them in the most profitable directions, perhaps occasionally not legal ones.

    I take movies with a bucket of salt but there’s one that always confused me from a legal standpoint. “Born Yesterday,” made both in 1950 and 1993, was about a conniving businessman who put most of his company’s concerns in his clueless girlfriend’s name, ostensibly to avoid personal prosecution should his naughty dealings ever come to light. His lawyer advised and assisted in this, I believe.

    Does that kind of thing actually happen in real life? It seems so careless and obvious–he gets audited once and it’s all over. I’ve also heard stories of people doing the same thing with their underage offspring, putting certain illegal dealings in their name. How could this NOT come around to bite the parents in the ass, and rapidly?

    Are movies just “out there” or does art imitate life?

  5. Allison Williams says:

    I feel for you. I hope you get a solution fast.

  6. It is always a sad situation when a lawyer damages the perception of the practice by treating their clients in such a manner.

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