Apr 11, 2013 “Doctor, do something!!!” – “Lawyer, do something!!!”
What is it like for a doctor handling a life-or-death emergency when the patients’ relatives are pleading, even screaming "Doctor, do something!" "Doctor, what is my relative’s situation?" "Doctor, why are you not doing a better job?"
As a criminal defense lawyer, I also face relatives wanting to discuss my clients’ cases. My experience has been that I can deal with just about any curveball from a client, but that curveballs simultaneously from my client and his or her relatives are an extra challenge.
Probably for numerous reasons — including where the relative has bankrolled my attorney’s fee — I find a more frequent and stronger interest in relatives to be involved in my privately-retained clients’ cases than when I was a public defender lawyer.
As a private lawyer, I have an option about how much relatives are or are not involved in my clients’ cases. The upshot of a relative’s involvement can be the comfort it might provide the client in dealing with a new situation, and, where the relative has been a beneficial confidant in the client’ case, to continue as a confidant.
Potential downsides in dealing with relatives include:
– If they participate in all meetings with the client, the client is less likely to level honestly with the lawyer. After I struggled with such a situation many years ago with two different clients whose spouses were just about always present at our meeting, I resolved that getting my clients’ waiver of the attorney-client privilege — by having a third party present — is not enough. I have only one client, and I will make the ultimate decision about the extent to which relatives are or are not involved in my work for my clients. It is best that I make that decision through fully deliberating with my client, fully listening to my client, and being fully responsive to my client, but the ultimate decision remains mine.
– Some relatives and clients have seriously unresolved relationship issues with each other. Letting those relationship issues spill into my dealings with my client can present a plethora of challenges.
– Some relatives are much more vocal. than my clients, even domineering over clients. If a lawyer is going to agree for relatives to play a substantial role in clients’ cases, the lawyer should consider billing extra for the extra time, and at times extra aggravation, for allowing such extra participation.
– Criminal defendants are often dealing with very difficult situations. For some clients, a relative’s presence can provide comfort. For others, the relative’s presence can be a distraction that makes it more difficult for the defendant to focus on the matter at hand, to prepare to testify (if testimony becomes necessary), and to make informed decisions in the case.
Many times, I have heard relatives try to strongarm their way to the center of my attorney-client relationship with the refrain of "It is my money that has paid you, and I am going to be involved in my relatives’ case." I think I have been successful in averting that situation in a great number of instances by having an engagement contract addendum where relatives pay for my clients’ legal services, which confirms that I have but one client, and being a paying party does not put them in any different a situation than if they had paid me anonymously.
Here are a few more considerations for a criminal defense lawyer to make in determining how much involvement to afford his or her clients’ relatives:
– Using the medical doctor analogy, reasonable and balanced limits must be placed on a relative’s involvement in the case. Relatives are barred from operating rooms. Relatives are barred from sitting at counsel table in courtrooms, and from lawyer contact visits with inmates at jails ad in courthouse lockups. Those should not be the only reasonable limits placed on relatives’ dealings with the lawyer.
– Clients need a voice. If a relative always is present during conversations with the client, the client sometimes will be uncomfortalbe and even unwilling to say when s/he wishes to speak exclusively with the lawyer. When a client allows a relative to be present for all communications with the lawyer, that can open a Pandora’s box that the client regrets, not wanting to offend or anger the relative when the client realizes that the box should be closed again or closed more. A Pandora’s box does not re-close.
– Beware relatives claiming to need to be present as language interpreters for clients whose English is limited or relatives who claim that the defendant has cognitive disabilities that require interpretation. If such language or cognitive challenges exist, it is best — despite the additional financial cost — for the client to pay an interpreter who will faithfully interpret and not participate as a relative as well, and for the lawyer and any cognitively challenged lawyer to bring in a relevant professional, not merely a relative, to determine how to transcend any cognition hurdles in the attorney-client relationship.
– Beware incarcerated clients who share sensitive attorney-client communications by phone and in person with relatives and friends. Those conversations ordinarily are recorded and monitored, and can have unexpectedly serious consequences for the client.
– Beware when a client or his or her relative insist that the client is so consumed with work or academics that the client has made the relative a proxy for dealing with the lawyer. Beware also when clients give the green light for the lawyer to communicate extensively with the relative without the clients’ presence at (by phone or in person) and participation in the conversation. To have repeated conversations with relatives in the clients’ absence can breed miscommunication among the lawyer, client and relative, and can create all the more confusion about where the reasonable boundaries are for relatives and t necessity of the client’s direct involvement in his or her own defense.
– Beware of relatives who monitor the clients’ email, and even send emails from the client’s email account. This is a big red flag.
– The initial meeting with a potential client has many honeymoon/courting aspects, with the potential client, lawyer, and any relative putting on their best face. To get a better feel for the possible dynamic in dealing with the relative, consider observing how the potential client and relative interact with each other. If you meet at a cafe, for instance, how are the potential client and relative interacting with spoken and body language? Is the relative deciding what the potential client will order (possibly a more common occurrence among the general public than we think). Did the relative arrange the meeting with the lawyer, identify the lawyer, or urge or mandate that the client hire the lawyer? None of the foregoing — other than the mandating — is automatically bad, but are items to be considered in the mix. How much is the relative dominating the conversation, belittling the potential client, devaluing the potential clients’ personal abilities and potential, interrupting, and even trying to silence the conversation? Those are red flags, as can be relatives references to "the lawyer WE hire.
– Ask yourself why you became a criminal defense lawyer in the first place, the extent to which you will enjoy your law practice more when relatives are not limitlessly involved in communications with the lawyer, and the extent to which you are willing to lose income by losing potential and existing clients by announcing clearly from the get go that the lawyer is the final arbiter of how much and in-depth will be the relative’s role in the case. I know that I ordinarily serve a client best — and my law practice enjoyment best — by making such a clear pronouncement. Although I may lose some potential clients along the way, that is better than facing loggerheads down the road, and some relatives and potential clients end up agreeing with such a pronouncement, and may just have not known where reasonable boundaries are for relatives without the lawyers’ first suggesting them. Some potential clients may prefer hiring a lawyer who makes the client king, rather than relatives
In any event lawyers must remember that their potential clients and actual clients do not come to them in a vacuum. Some are very timid and trepidatious about meeting a lawyer alone, particularly if they have never consulted with one before. Some wish to have a second pair of eyes and ears at the initial meeting with a lawyer (I ordinarily suggest that the extra visitor join us later on in the meeting). Some come from a very nurturing family background where relatives’ involvement has benefitted them very much. Regardless of how kind or not relatives deal with the lawyer, the lawyer needs to remain compassionate, empathetic, and respectful, while at the same time not being a client’s or relatives’ doormat nor constant verbal dumping ground (when the relatives and client know that there is nobody else in the courtroom to dump on) nor recipient of constantly inconsiderate behavior. Moreover, merely because a lawyer has been paid for his or her services, that does not convert the lawyer into a verbal whipping child of the client and his or her relatives, nor into a lawyer who is available 24/7 at the client’s beck and call, while at the same time being obligated to stay on top of communications with and work for the client. The lawyer is a professional, and will provide the best service by being a professional who makes reasonable boundaries clear to the client and his or her relatives.
Of course, the magic mirror http://katzjustice.com/of-prosecutors-power-high-horses-and-the-magic-mirror/ always is present. The more that clients and their relatives feel confidence in the lawyer, feel valued and respected by the lawyer, and feel validated by the lawyer, the more that the lawyer will generally will find a more positive experience with them. The more that the lawyer sees potential clients and their relatives as full human beings with feelings, feels no better than they are, sees their strengths and weaknesses, understands their fears and anxieties, and knows the potential to do better as part of developing the strongest possible strategies, the more that the client and his or her relatives will feel more comfortable with the lawyer and empowered. No two clients are cookie-cutter situations. The lawyer should be able to reverse roles with the client and relatives to understand what they are going through; to help motivate, empower and inspire them to be at their best to the benefit of the client; and to sense when a relative’s involvement (and to what extent) will be of benefit, including just making a hugging symbol to the relative or friend when the client can benefit tremendously from that hug.
By definition, criminal defense work inevitably involves relatives’ involvement in many cases. Lawyers who want to avoid all such involvement might wish to consider practicing corporate law or another area of law that does not involve assisting people.