A Habeas Lawyer’s Duty to Discourage and Turn Down Certain Cases

Law is a business. But it’s not just a business. It’s a calling that brings with it certain duties to advise with the client’s best interest above the lawyer’s profit motive. If there’s a theme that runs throughout the stories clients and families tell me at consultation, it’s hopelessness combined with desparation and mistrust.

By the time people are exploring a habeas, there’s been a trial and an appeal. Obviously, nothing has gone well. There has been either a lengthy period of incarceration or a frustrating number of dead end attempts to find jobs, obtain a license, or gain admittance into a school. Right or wrong, there is a sense of frustration. It would be easy to cash in on that with false promises or through pitting client versus trial counsel.

Don’t do it.

I don’t want to sound like a judge at a CLE, but it is important to consider the lawyer’s ethical responsibilities in such a situation. Here’s Rule 2.1 of the Georgia Rules of Professional Responsibility and a Comment.

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. A lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.

I think that this is the Bar’s way of saying, “dude, don’t act like a used car salesman” (with apologies to used car salesman). We aren’t just selling services. We’re dispensing honest professional advice, and the responsibilites must outweigh our profit motive. The comment is even more telling

A client is entitled to straightforward advice expressing the lawyer’s honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront. In presenting advice, a lawyer endeavors to sustain the client’s morale and may put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.

It doesn’t get more unpleasant than telling someone with a life sentence or virtually a life sentence that perhaps the money that could go to hiring you would be better used elsewhere, but I believe that many situations call for this advice.

The difficulty is learning when you should discourage representation. Lately, I’ve used this method when someone comes to me about getting hired.

1. Information gathering. This is the really basic stuff. When was the conviction? What was the crime? Was it a plea or a trial? If a plea, was it non-negotiated? What county? What court? Where is the potential client incarcerated? What’s the goal? Is it to set the conviction aside and take negotiate something better, or is it to take a crack at beating the charge at trial? Who was the trial lawyer?
2. Issue spotting. Sometimes you can do this in the office. If the conviction was from a plea, you can sometimes review the plea proceedings and make a determination.
3. Getting retained for exploratory purposes. If you cannot determine what the issue is from an office visit and the process of finding out could be lenghty, sometimes I will agree on a fee to investigate the case to see if there are any issues that would merit a habeas. Sometimes, I agree to make a few phone calls informally to figure it out. Different cases demand different levels of exploration.
4. Exploration. In the bigger cases, I like to read the original record, speak with the client in person or on the phone, call trial counsel for an interview. Calling trial counsel is generally a must. Trial counsel will tell you a great deal about what issues might remain, why a course of action was taken, whether there were problems in the attorney-client relationship, whether the lawyer is amendable to considering an ineffective assistance of counsel plea. Sometimes, I will try to speak with the prosecutor to test out amendability to a consent. Sometimes, I choose to wait on that conversation.
5. Reporting back. I then will report back with an honest assessment of whether I believe that there are issues of merit. If we choose to go forward, then I am retained to do the habeas case.

If I could put a big huge star by anything above, it would be the part about talking to the trial lawyer. Don’t wait until the day of the habeas proceeding or until days before to contact trial counsel about the case. Engage early and often. You may get a completely different version from what the client has told you. It may be the same. Sometimes the lawyer will seem more credible. Sometimes, the client may seem more credible. Sometimes, you can corroborate one claim over another. Sometimes the lawyer screwed over the client. Sometimes, the client was unreasonable and this conversation will save you from engaging in a similar relationship.

Often, the lawyer will be of assistance to you and save you hours of investigation and work.

And if I could put an even bigger star by anything above, it would be the duty to tell the truth, even if it means turning the fee away. I believe that in the end, 2.1 can be your guide. I also believe that you will profit more from the kind of reputation that rule 2.1 will give you than from any one fee — particularly if you shirk your responsibilities and get a reputation in the Courts as a guy who’ll bring any old case for a fee. Plus, the talks you’ll have to have later in the case when your client realizes that the gig is up outweigh even a huge fee.