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Challenges in dealing with fellow criminal defense lawyers

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Many times I write about addressing challenges in dealing with clients, judges, juries, prosecutors and witnesses.

Another challenge sometimes arises in dealing with fellow criminal defense lawyers, including in the following ways:

Dealing with lawyers defending co-defendants in a consolidated prosecution. Particularly in federal felony prosecutions, defendants and their lawyers often clamor to get the best possible guilty plea deals, hoping that offering early plea discussions and snitching information will be the best path to offsetting draconian sentencing risks. While I advise defendants — starting with my retainer agreement — wanting to snitch that I am not the lawyer for them, I am in a minority in avoiding snitch work.

While co-defendants’ lawyers might feel it more prudent not to return the phone calls or emails of fellow co-defense lawyers so as not to disturb progress with negotiating and snitching, or simply to avoid an uncomfortable conversation (for instance to reply to the question of “Is your client snitching against mine?”) the more prudent approach is to acknowledge the phone call or email, possibly to talk about some unrelated matter or joke, and to say something along the lines of: “Thanks for calling. At this point, I have nothing to discuss about the case.” Before deciding not to return the phone call of a co-defendants’ lawyer, these same lawyers may want to take the broader view of wanting a return phone call or email when they contact a fellow criminal defense lawyer about any matter.

I write more in detail here about handling the challenges of dealing with lawyers for co-defendants during and before trial.

– Do not assume a fellow criminal defense lawyer will not do something to pull the rug from under you, whether intentionally or not. For instance, before spouting that the prosecutor or judge in your case is a “Nazi b*stard”, consider the possibility that the listener and the prosecutor or judge may be friends going back to law school or even before. Where do the listener’s loyalties lie once you badmouth the prosecutor, judge, cop or anyone else?

– It can sometimes be ideal to have nobody else hearing when discussing a sensitive matter with a prosecutor. Police and fellow lawyers within earshot of the conversation may say or do things that can harm the chances of making progress on the sensitive matter, including when fellow lawyers start joking or lambasting about what the criminal defense lawyer is saying, or when fellow lawyers get irritated about the prospect of the prosecutor offering my client a deal that seems more lenient than what the prosecutor usually offers other defendants in similar circumstances.

Work with colleagues in getting a chance to speak with the prosecutor. In misdemeanor court, criminal defense lawyers often wait to speak with the one prosecutor handling all their cases in the designated courtroom for that day. The key in this and all scenarios is to build and maintain good relations with colleagues, to help them when doing so will not harm your client’s case, and to help everyone rise as you rise.

– You have no obligation to tell your colleague the status of your case. While waiting to talk to the prosecutor or in the hallway, lawyers often talk about a wide ranging number of subjects, from their cases to their law practice to sports. A colleague may ask about your case out of mere curiosity, but beware the colleagues who then begin loudly to pontificate about your case. A colleague may ask whether your case is going to trial, to try to get an idea of when their case might get called. Of course, going to trial is the default unless the case gets settled or postponed

Most of my colleagues are upstanding people, but with people being people, there are colleagues who will do things against your clients’ interests. The client always comes first.

– Make yourself available to your colleagues. For starters, if we do not hang together, we might end up hanging separately. Moreover, I believe so strongly that criminal defense work is on the side of the angels, that of course I want my colleagues and their clients to win as much as possible, other than through the snitching route. Moreover, so many of my colleagues have been generous in talking with me about my cases and points of law and strategy that will or might come up, and I clearly am obligated, while also being delighted, to give back to my colleagues.

Do not hesitate to offer unsolicited information or help to a colleague who seems to be missing the boat, where his or her client may well suffer the consequences. I say seems to be missing the boat, because a prepared and skilled lawyer has knowledge and insights into his or her case that the casual observers does not. Such boat-missing can arise, for instance, from limited experience with criminal defense or the particular case at hand, insufficient informational intelligence on the case, limited knowledge about usual local practice including the common approaches of the involved judge or prosecutor, an abberrational or non-abberrational miscalculation, or worse. Unless a lawyer seems to be utterly sabotaging his or her client’s case, usually I start any discussion by discreetly telling the lawyer I have some information s/he might find helpful to his or her case, or I might hand the lawyer a note with a few words saying the same thing.

Delight in fellow lawyers’ successes rather than getting irritated when a potential client hires a colleague. Even if some other colleagues are promising potential clients things that honesty and ethics rules bar them from promising, even if some colleagues insist that only local lawyers or former prosecutors can do a good job for a potential client, and even if some colleagues unfairly and even dishonestly portray any of their colleagues in a false light to potential clients, my only choice is to remain above the fray. Even if some colleagues can get downright hostile about competition, including when they are digging into their credit lines to pay their employees, remaining above the fray is always essential.

Find your allies, be an ally, and keep your allies. I have colleagues who will take in confidence to the grave what I tell them, if I ask them to. With them, I can brainstorm their and my cases, and conduct trial workshops for upcoming trials, without watching my back, and watch the magic unfold.

I deeply thank my colleagues who exercise selflessness and caring for their clients and colleagues. I encourage my criminal defense colleagues in handing their many challenges, and I am devoted to being available to help them. I encourage all my colleagues to help each other rise, and not to undercut each other.

Criminal defense is honorable and essential battle. We criminal defense lawyers must band together.