Mar 20, 2015 Difficult clients give their lawyers a chance to rise to the occasion, or to fail
When I was a Maryland public defender lawyer from 1991 to 1996, I could not choose my clients. In representing all of them, I was driven by knowing I was on the side of the angels, finding most of my clients to be a pleasure to serve, and taking great satisfaction in bringing to life Gideon‘s promise of effective assistance of legal counsel to indigent criminal defendants.
Nevertheless, I knew I was destined to return to private practice, on the path ultimately to becoming my own boss, and to not rely on people’s tax withholdings to earn my income.
I like to say that I ordinarily will defend any criminal defendant who will pay my fee, except not snitch work. I say that in response to those who ask me if there is any type of criminal defense case I would abhor so much that I would decline to defend the client, rather than to express a mercenary attitude. If I were a mercenary, I would do snitch work, which I do not, and would represent libel victims (I do not) rather than only welcoming defendants when it comes to libel.
Providing legal representation to people is heavily about the relationship between the lawyer and the client. My clients and their loved ones often feel in distress, at least in dealing with the initial shock of their arrest. A very small number use that as an excuse to be boorish at every turn. On the opposite end are my clients who are so polite that they wait until the end of their cases to tell me about how much they have obsessed and lost sleep over their cases, and this includes clients for whom I could have reassured against any need to so obsess.
Because defending clients is about personal relationships, lawyers must include listening to their guts in deciding whether simply not to accept a potential client, and, harder, whether to seek to withdraw from representing an existing client, which requires minimizing any harm that will befall the client by doing so.
When a lawyer rejects a potential client or seeks to withdraw from representing an existing client, the lawyer truly is putting money where his or her mouth is. If a lawyer finds himself or herself repeatedly rejecting potential clients in the lawyer’s field of work, certainly it is time for the lawyer to look within about why that is so. However, never rejecting a potential client may indicate that the lawyer will let disaster come around the corner rather than preventing the disaster in the first place.
I like most of my clients very much. I love that nothing gets in the way of devoting plenty of time to each of them and that I maintain a moderate number of clients to accomplish that, versus the much higher number of clients when a public defender lawyer. I get to learn who my clients really are, where they come from, where they were at during the time of their alleged crimes, how they are faring in bettering themselves post-arrest, and where they are headed. Many tell me how much of a positive influence I am in their lives beyond only their case; and many of them inspire me. I become very friendly with many of my clients. We sometimes enjoy having lunch together, taking time out together, and being enriched with each other. With many of them, I have maintained strong relationships for years.
I have a provision in my client contracts obligating my clients only to provide me truthful information. This is not an issue with the vast majority of my clients. No doubt, I have plenty of clients who proclaim their innocence when they know they committed the offense for which they were charged; that comes with the territory. However, if a client passes along false information to me as true for me to provide the prosecutor or court in defending the client, or to have me barking up the wrong tree in preparing my client’s defense, that is untenable, and I will have the necessary discussions with my client to rectify the matter.
A colleague underlined to me that in plenty of countries with oppressive governments, lying becomes second nature as a means of daily survival. Old habits can die hard, but habits of dishonesty must stop at my door. That is not to say that my clients who testify in court will always testify honestly. A lawyer should not do criminal defense if s/he expects all clients to testify honesty. I serve my clients well by convincing them how hard it is to pass off lies as truth on the witness stand. Volumes have been written and discussed about a lawyer’s obligations under the governing lawyers’ ethics rules and Sixth Amendment about what to do when we know our criminal defense clients are going to lie on the witness stand or are in the middle of doing so, so I will not condense those volumes of discussion into one blog entry. In today’s blog entry, I am talking mostly about how I deal with clients who lie to me beyond the context of testifying.
Some criminal defense lawyers have a general practice of urging clients not to tell the whole story about the case before the police reports and other essential discovery is obtained. That suggests an expectation that many criminal defendants will lie to their lawyers, and a desire to reduce those lies through the client’s at least seeing the discovery first.
My general approach is to tell my potential clients and clients that I want to know the essential information to defend them so that our battle preparation is not delayed, underline that it is counterproductive and prohibited by me for them to tell me any untruths, and say that they need to be silent with me rather than to tell me an untruth.
Plenty of criminal defendants are not sure that they can trust their lawyers to safeguard the clients’ confidences. That can lead to client lying. Why do I ordinarily require that clients not have their loved ones present when I discuss confidential information with my clients? One important reason is that the presence of the loved ones will often lead my clients to lie and to struggle to minimize potential cancers in their cases; and too often it makes them clam up, feeling more self conscious with the addition to anyone beyond me to the conversation. Often, my clients have already told their public relations version of their cases to their loved ones, so good luck with their deviating from that with their family members.
We always have firsts, like with the recent potential client who refused to tell me whom he was with on the night of the incident. He got quite indignant when I told him that I would not offer to represent him if he did not tell me whom he was with, even after I said that at minimum I needed to know if I knew (maybe even had previously represented) the person he was with, and whether that might cause a conflict of interest. This potential client still would not tell me whom he was with. My gut told me that this was not the right potential client to pursue further on the matter by asking why he was so adamant in not giving his friend’s name and by assuring that our conversation was completely confidential. Some potential clients merit that, but this and other aspects of our conversation told me to expect too much risk of so much upcoming struggle with this man had I become his lawyer that it would have interfered too much with my providing him strong representation. Hopefully he will turn a better leaf with the lawyer he hires.
On occasion, a criminal defendant comes to me looking to replace his lawyer. The first thing I do to minimize having me replace the current lawyer is ordinarily to bill for meetings with criminal defendants who already have lawyers; that makes many think twice about whether they will meet with me. When I meet with such defendants, if it sounds like the defendant is being well represented, I point that out to the defendant and advise to try to work matters out with his or her present lawyer. Doing so is essential not only because it is right, but also because I am not interested in taking a client who will be thankless with no matter whom is his or her lawyer.
A client recently hired me after his original lawyer, who is highly experienced and skilled, was very dismissive about my client’s anxieties about his case. A healthy balance is needed in dealing with a client’s anxieties, whereby the lawyer needs to be sensitive and responsive to those concerns and the client needs to understand that the team of the lawyer and client is more powerfully effective when the lawyer-client conversations are balanced with a substantial focus on the best approach to obtaining the best result in the case. This client and I got along great. He has many great qualities that inspire me. We got a good result in his case. Who is to say how much my good relationship with this client had to do with my chemistry with him versus my client’s possibly recognizing to go easier with me than with his previous lawyer in addressing his anxieties about his case?
I have sometimes been tempted with some clients to tell them that at the moment they seemed to be causing me unnecessary pains in my neck, and sometimes have told some clients that. However, at my best, I remove the singular "me" from the equation — of course not at the expense of having compassion for myself, just as I need to have compassion for all — and approach the matter as "us", giving my client my full compassion, as much liking for them as possible, and full time and attention that my client fully deserves; that can be magical in transcending seeming impasses with clients.
I am devoted to living the admonition from an experienced public defender lawyer soon after I became a criminal defense lawyer: Love your client.