Who’s Going to Be Performing the Legal Work in My Case?

This is an important question that should be discussed prior to any client hiring a criminal defense lawyer. It is important because it is assumed that the lawyer meeting with the client at the consultation will be actually performing the legal work involved with the case. Clients are frequently shocked and rightfully concerned when they realize than another attorney, not the attorney who quoted the fee, is performing the actual legal work. This is an unpleasant realization that often comes about at a crucial time in a client’s case.

There are two primary reasons that a criminal defense lawyer and a prospective client do not engage in this point of conversation prior to retention. One reason is completely acceptable – the lawyer will do the legal work and couldn’t imagine otherwise. The lawyer does not expressly tell the prospective client that he will be personally doing the lawyering because there is no possibility of any other arrangement. The second reason is completely unacceptable – the client couldn’t imagine otherwise and just assumes that the lawyer in the room talking about the case will be actually performing the lawyering. There’s no issue if the assumption is correct. However there certainly will be an issue if the lawyer uses his name on the door to sign clients and then has an associate (or worse – a confederated lawyer) attempt to lawyer the client’s case.

The second scenario is a problem and a trend that should be phased-out of criminal defense practice. Certainly defense lawyers who hire a private investigator would “none too pleased” in being surprised by a written report from another investigator in the same office. Part and parcel in hiring an investigator is the lawyer’s comfort level with potentially using that individual investigator as a witness in a courtroom. Similarly, (maybe even more central in hiring a defense lawyer) the client’s comfort level with potentially having a defense lawyer appear in front of a jury is paramount in the hiring decision.

Informed potential clients can avoid any unpleasant surprises by simply asking one short question, and getting a satisfactory answer, prior to signing with a defense lawyer. If the lawyer hedges or mentions something about an associate lawyer who is not present in the room – I’d say they’d found a red flag. If the lawyer gives a satisfactory answer at first but it soon becomes apparent that another lawyer is actually responsible for the client’s case – I would consider it a serious concern.

This doesn’t mean that any lawyer who has someone cover a docket sounding or calendar call (devoid of any substantive legal discussion) is doing a bad job. Covering calendar calls is a norm of practice that does not concern me. However the internet is full of prominent lawyers who are rarely seen in court. Potential clients meet with the prominent lawyer after hearing stories of his reputation and sign a contract. Subsequently, the prominent lawyer turns around and hands the case over to an associate who has been practicing law for just a few years. If the case goes well, the prominent lawyer will take the credit. If the case goes poorly, the prominent lawyer will blame the associate. The client gets caught in the middle.

I want to be clear that this does not mean that the associate lawyers are bad lawyers. Often the younger (but less experienced) lawyer is more knowledgeable about the law and has better relationships with the personnel at the courthouse than the boss. However – if a potential client wants to have a younger, but knowledgeable and energetic attorney handle the case – he should pay accordingly. If the case goes well, the only issue is the client being over-charged.

This dysfunction is no secret in the legal community. The Tallahassee phone book has attorney ads which openly proclaim that the lawyer advertised will personally handle the client’s case. These ads represent other lawyers’ responses to this recognized issue.

In doing criminal appeals [1], I encounter defendants who have been convicted after trial and are unhappy with their trial attorneys. One of the chief complaints I hear is the above-described dysfunction. There is often one lawyer named on the contract and another lawyer named on the judgment and sentence. The family hired the named, prominent lawyer and wound-up dealing with the associate or confederated attorney even when the case went to trial. While I do not believe that there is any direct recourse for a client in this situation, this is an embarrassment to the profession that should be avoided.

[1] The issue described in this post is not exclusive to trial work. In fact, it might be worse in the appellate context. In criminal appeals, there are hoards of (usually ex-inmate) “paralegals” or “law clerks” that weasel their way into law practices by writing bad briefs for lazy lawyers. Potential clients should not shy away from asking questions such as “Who will be reading the record?” “Who does the legal research?” or “Who will be actually writing the brief?” For the most part the shorter the answer = the better.