Starting Out in Criminal Defense? Here Are Some Mistakes to Avoid
You'd think that for $100,000 dollars or so, law schools would teach you everything you need to know to hang out your shingle and start out in criminal defense, but it just ain't so. Hopefully you've got good mentors, good practice guides and good malpractice insurance.
In case you have all of the above but could use a few more tips, here are a few criminal law "gotchas" you'll want to avoid.
Don't get roped into working for free
In some jurisdictions, once you've made a general (as opposed to a special) appearance, you're on the hook and you'll need to continue representing your client all the way through trial whether he pays you or not. Courts require good reasons to allow a criminal defense attorney to withdraw from representation and "I didn't get enough money" is not one of them. Try to get the entire fee in advance,
especially even if your client is a famous celebrity like Lindsay Lohan.
It's better to be an ass than a blind mule
What's a blind mule? Someone who smuggles an illegal substance without knowing it. Don't be one. Never take anything from a family member, friend -- or anyone -- and give it to a client who's in custody. You never know what might be in it (on or it). Even a piece of paper could contain LSD. It's not your job to pass along even verbal messages, although if the message is a marriage proposal, you might get a nice shout out on a national law blog.
You might not want to do a contact visit
It's a great idea to visit your in-custody client as soon as you get the case, but don't forget your common sense. Do you really want to be locked alone in a sound-proof room with someone you've maybe never even met? Things can go wrong. Even if your client is a good guy, things can still go wrong. A regular (non-contact, non-attorney) visit could be something to consider, especially for your first meet-and-greet. Just be careful not to waive privilege by letting someone overhear something they shouldn't.
Don't accept tainted money
Let's say your client faces a drug charge and wants to pay with $20,000 in used bills. That is what one might call a small clue that trouble lies ahead.
Criminal proceeds are subject to asset forfeiture, and the fact that some of those proceeds went into your bank account as your fee does not exempt them from that forfeiture. Let's put this another (more frightening) way: criminals cannot "launder" money by paying it to lawyers. F. Lee Bailey found this one out the hard way, except it was with $2,000,000 and he ended up spending six weeks in jail and getting disbarred.
Dealing with fee payment is one tough minefield to navigate, but "willful ignorance" is not the best strategy. You might in fact have a legal duty to investigate whether the money came from a legitimate source. And don't forget that you have the option of declining to take a case if things seem dicey.
Keep fighting the good fight
Most criminal defense practitioners will tell you you're doing God's work when you practice criminal law. You're on the front lines, defending the Constitution. There really are innocent people accused of crimes, and even the guilty ones deserve at least one person to be their champion against the powerful forces arrayed against them.
Protect and defend your clients, but protect and defend yourself too by avoiding these mistakes.
Editor's Note, January 31st, 2017: This article was first published in April, 2014. It has since been updated.
- Tainted Assets and the Right to Counsel -- The Money Laundering Conundrum (Washington University Law Review)
- Criminal Justice Section Resources (American Bar Association)
- Flying Solo: Starting Your Own Law Practice (Findlaw)
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