Some Thoughts on Relating to Clients in Georgia Criminal Cases

/by

It’s been a long week. I’ve had to have “the talk” with several of my clients. In case you don’t know what I mean by “the talk,” allow me to explain. There comes a point in just about every attorney-client relationship where there is an important decision to be made. You give your assessment, and the client takes your advice or rejects it. This week has brought with it a mixture of rejection with a healthy dose of acceptance laced with insults. Weeks like this always make me examine the complexities of the attorney-client relationship.

These thoughts have been in process for about a week or so anyway. Scott Greenfield posted a great post on his blog about the importance of keeping your professional distance and how the failure to do so actually does the client a disservice. However, he does so while criticizing a law firm in Florida that overdoes the whole boundary thing. That firm, a family law firm, writes that they do not work weekends and do not deal with emergencies over the weekend. Of course, sometimes things happen with clients over the weekend, and you should respond. Mr. Greenfield talks about that fact at length.

Of course, balance is a factor, too. It is possible to go too far in the other direction, which may actually be worse for the client that being impersonal. Mr. Greenfield writes:

Ironically, one of the most troublesome ways to deal with clients is to become their best friend. Clients need lawyers. If they want companionship, they should get a dog. It confuses roles when lawyers assume the position of mother, therapist or pet. Clients often need someone to talk to, to vent, catharsis, during the pendency of a case. To some extent, lawyers can offer their ear. But when the ear gets chewed off, we’re appeasing the client but no longer serving him.

Very true. But it seems like there’s something more to this idea of client management/client relationship issue. I’ve thought about it all week and have drafted a Professionalism Matrix.pdf to help me think about client management issues. It helps me, and I hope it will help you.

The best place to be is objective and empathic. If you are subjective and empathic, you do your client the kind of disservice Mr. Greenfield discusses. If you are cold and subjective, you’re the kind of lawyer I sometimes encounter at general bar functions who wonders how I could possibly do a job like mine. Or you’re a prosecutor. If you are objective and cold, then you are the kind of person that many of your classmates were in law school — robotic and efficient.

What does objective and empathic look like? It probably looks like a stroll across a tightrope. And it probably looks different for every client. Many of whom won’t like your objective advice. Many of whom would like for you to be their friend because you’re the only person who hasn’t rejected their personhood in the midst of an accusation or conviction or sentence. What does it look like? It looks like a worn out lawyer. It’s hard to have hard discussions. It would be easier to land somewhere else in the matrix. But then you’d be less than your calling requires.

Being OCD and Doing Criminal Appeals in Georgia

/by

Today I found myself in a meeting with a prospective client’s family discussing handling a direct appeal in the Supreme Court of Georgia. The family is very organized and proactive and already had the trial transcript ready to go. To make things even better, trial counsel was present in the meeting to discuss things with me.

I caught myself doing what I always do when I have a meeting and the client brings in the transcript. I started flipping through the pages while people were talking. A trial transcript is akin to a big wrapped present with a bow on it. And it’s hard not to read one when it is in front of me.

I think success in the law, particularly in criminal appellate law requires a bit of compulsion. As I thought about how tempting it was to read that transcript, I was reminded of a blog post I read yesterday by David Benowitz on his DC Criminal Lawyer Blog. In the post, Mr. Benowitz compared being a criminal defense lawyer to being avid about his fantasy football team. The same level of compulsion, call it nerdiness, that drives him to obsess about the stats of player in meaningless games is kind of like what it takes to be great at being a lawyer. Bottom line, it is about care for the process and for the client. Mr. Benowitz writes:

So how does loving fantasy football equate to criminal defense work? Fantasy football is about the love of the game, but it is also about being a bit compulsive. I say that as I sit screaming at my 52″ screen for Austin Collie, who I started over Steve Smith, to please score the next touchdown in a meaningless Week 3 Colts/Broncos late game. Unless you’re waking up at 3:00 am to write down the idea you had about your possession of marijuana case, unless you’re idea of a fun Saturday night is to see clients at the jail, unless you bring new Court of Appeals opinions to read at the beach on vacation, you need more passion.

And so I found myself so interested in what may lie within a transcript on a case where I have not yet been hired because, in my nerdy way, it’s hard not to try to figure out what issues lie within a transcript.

Hopefully, the family thought I was eager and not rude.

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

/by

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.

Who is Your Client on Appeal?

/by

This week we had to take our son to see his pediatrician. He, like many little guys his age, has a tendency to get ear infections. We love our doctor. And it would be easy for anyone who observed her to know why. She is fantastic in the nuts and bolts of medicine. Beyond that, she has a knack for getting my children, not the easiest patients in the world, to participate in exams and tell her what’s wrong. Add to that, she has a clear sense of who her “patients” are. She knows that diagnosing and treating our children is about half of the job. The rest involves answering our questions, calming us, and patiently listening and politely responding if I ever venture into amateur doctoring based upon something I saw in the news, read on the internet, or heard somewhere. In short, she is effective because she realizes that being a doctor to a Key child includes being a doctor to a crazy dad with a big mouth and asks a bunch of questions.

So, it is in criminal appellate practice. You client is a person locked up in some rural part of your State. Bur your client will also be a spouse, a mom, a dad, a brother, a pastor, and a best friend. Your job will be, at its heart, nuts and bolts law. But it will be so much more.

And, to do it right, you will manage those two most dreaded phrases in the client of family member vocabulary: “Mr. Key, I was doing some research on the internet …” and “Mr. Key, I found these twelve cases in the law library.” Rarely, are these phrases uttered with the intent to offend or overstep. Generally, they are uttered with a genuine desire to help or out of a hopeless desperation or an understandable to assert some control over her life where control has been taken away. When it gets frustrating, remember who your patient is and who your patients are. Some people can never be happy, but most of them will respect you and appreciate what you are doing.

It Isn’t Done Until You Have Communicated in Georgia Appeals and Habeas Cases

/by

Scott Greenfield wrote a good story a few days ago in his blog, Simple Justice. I say “good” in the sense that it made me evaluate the part of practicing law where it can be easiest to drop the ball.

In the post, he tells the story of a call he received from the relative of a person in custody. She began the call saying “I need a lawyer.” She said that even though she had a lawyer. The lawyer had spoken to her about the case but she did not understand what he was saying. Mr. Greenfield was not particularly interested in taking it on, so he called the other lawyer on the client’s behalf.

Turns out that what the other lawyer had said was technically correct. The problem is that it was not being put in a way that the client could understand. The client had done some things to worsen her prospects of being released, and those facts had not been discussed very well. He goes on:

This is not about telling the client what she wants to hear, but about telling the client what she needs to hear. This is the client’s life, and they must understand what’s to become of it. Some clients will understand quickly, while others will take more time and care. It’s the lawyer’s responsibility to find a way to communicate that works for the client. Use an interpreter. Get another lawyer to help if you can’t seem to get past the communication wall. Use a different approach. Spend the time to make it happen.

The chilling thing about this story is the end. He points out that, had he wanted the client he could have had her, and the lawyer on the case would never have understood why.

Things had gotten this bad with the lawyer and he was one of the minority of lawyers who was actually returning phone calls and doing all the necessary work. Think of the potential trouble those lawyers are in.

Now, take all of the dynamics at play in the story and magnify them. Welcome to appellate practice. Your client may be in prison hundreds of miles away from you. In the early stages of the case, you may not have met your client. He has just taken a loss at trial, and there are few small losses in Georgia criminal trials. As the case progresses, there are several things that will happen that just about virtually guarantee attorney-client alienation.

  • The client will turn the case over and over in his head because there is little else to do and will initiate conversations with you on the assumption that you are doing the same.
  • The client will go to the law library, and he will sometimes go down the wrong path. When he does, he will make “suggestion” to you about the direction of his case that are overly-optimistic and uninformed.
  • The transcript will not come as quickly as you or he will like.
  • Your client will think that the appeal is just like the trial. While you focus your efforts on whether the trial court should have given request to charge number 17 and whether the 911 call was covered by Crawford v. Washington, your client will expect you to prove to the appellate court that Officer Jones was lying.
  • The temptation to speak to your client in legal jargon will only increase because appellate law lends itself to it way more than trial does.
  • Appellate work makes you feel like a writer, and writing is largely a solitary activity. Plus, you are going to be busy, and all of the usual things you do to communicate when you are busy, like send a quick text or an email, will not be available for you to speak with your client. You will be doing a lot of letter writing — 19th century style. Visiting a single client will sometimes take an entire day. Phone calls have to be arranged and scheduled with the prison way in advance. All of this stuff is very alienating.

You have to work extra hard to make sure your client understands the appellate process and the differences between it and trial. You have to be a patient listener and understand that you will often be the lightning rod for many frustrations. You cannot take it personally. And, when you think you have explained it clearly, you may find that you haven’t

But Mr. Greenfield is right. Your job is to find away to communicate. It’s particularly so when your client is so far away from you and getting legal advice from other people in lock up.

Appeals Law is Often About Turning Down Cases

/by

In the past week, I sat down with two potential clients and their families to discuss taking an appeal. I thought one case was “winnable,” and one I thought was not. I put “winnable” in quotation marks because defining a win in appeals law is difficult.

In one case , the prospective client recently entered a non-negotiated guilty plea to a violent crime. A non-negotiated plea is one where there is not recommended sentence by the State. The client stands before the judge, puts up his mitigating evidence, and the judge chooses the appropriate sentence. The sentence was tough, but it could have been worse. The other case involved a man who entered a plea to a very badly worded indictment and whose plea hearing was pretty messed up. By messed up, I mean that the judge did not ascertain whether the client understood the rights he was giving up by taking a plea and choosing to forego a trial. Both cases were dangerous.

 

Danger Often Lurks Ahead When You Mess with Guilty Pleas

These two cases had something in common though. They were a classic demonstration of the cliche — “be careful what you wish for because you just might get it.” Bad things were waiting for these prospective clients at the end of a successful appeal. For the guy with the defective plea, two counts that were originally dismissed would return from the dead to haunt the client on retrial. For the other prospective client, there were several potential counts for which he could have been indicted after a successful appeal, and the case was not going to be very easy to defend at trial.

The choice was theirs, but I advised that an appeal was likely a slow road to disaster. The sequel was going to be more along the lines of Caddyshack II than Return of the Jedi.

 

The Judge’s Power When Counts were Dismissed

But, you say, can the judge really punish you for a successful appeal? It depends. In the landmarks case of North Carolina v. Pearce, the Supreme Court held that a judge cannot increase a person’s sentence after a direct appeal unless there is a new objective reason to do so, such as bad conduct after the original verdict. Justice Potter Stewart wrote for the majority:

… we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.

So, if the client went to trial and lost, then an appeal is a safe bet. However, if he entered a plea and, as part of the negotiations, one or more counts were dismissed, then the State can bring those counts back and a sentencing judge would be sentencing the client technically for the first time. So, we wouldn’t be an an Pearce situation. And if you want to argue Pearce in Georgia you better bring some Pearce facts to the game.

Give our appellate courts the opportunity to wiggle around the holding in Pearce and they will, just as they did recently.

 

Stare Deeply into the Crystal Ball

When you meet with a prospective client, there is one essential conversation you must have and it starts with a very basic question — what is your goal? Do you want to gear up for a new trial and risk battling sleeping giants so that you can walk away? Do you want to gamble that the State can’t put on a case now or that it will take its toys and go home?

Put another way, invite the client to imagine what victory looks like to them by asking them to plan the 6 months that will follow a successful appeal. What will she be doing? Enjoying her newfound freedom or moving from a prison to a county jail to await a new trial that will be un-winnable? Planning for the next trial where she will kick the State’s butt this time? Negotiating a better deal than the one before?

If you can agree on what that image will be, then welcome aboard. If not, it may be a case best left untaken.

ADDRESS

199 W Jefferson St.
Madison, GA 30650

PHONE

678-610-6624

EMAIL

tori@scottkeylaw.com