The Criminal Defense Bar’s Grievance Problem

I’m back from Rusty Duncan. I spent Saturday on Lake Travis and had a great time. Austin is a wonderful city and a great place to spend a weekend. Maybe I could franchise someday and have an Austin branch.

Like most CLE seminars the Rusty Duncan conference had some speakers on attorney ethics. I was embarrassed to learn that criminal defense lawyers had the most grievances in 2007. I hope the defense bar will take a hard look at the practices that commonly lead to grievances.

Pitfalls of a Volume Practice

I believe most of the problems are from poor practice management. Defense lawyers are taking too many cases for too small a fee. This mass of cases makes it impossible to provide attention to each client and case.

One of the reasons I do not charge the lowest fees is so I can prepare every case like there will be a trial. Experience teaches that most criminal cases end in a plea bargain. However, if you can prepare each case like a trial is inevitable you will get better plea bargain results.

I think many attorney charge low fees assuming the case will plead guilty and treat the case accordingly. This causes problems from not returning client phone calls, to not investigating the facts accordingly.

A common claim is failure to communicate with the client. Attorneys have an ethical duty to keep the client reasonably informed. I receive many phone calls from defendants whose attorney would not call them back. This is one of the reasons I give my clients my cell phone number and email address. I have policies on what calls should be placed to my office (when is my court date?), and when cell phone calls are appropriate (the FBI is here with a warrant!)

However, I purposefully limit my caseload to maintain communication. The criminal justice system causes great stress for defendants. The simple fear of the unknown is a major cause of client unrest. The more questions I answer, the better the client feels.

No Contract
Another mistake that leads to grievances is a failure to have a written contact. Having no contract is not a violation per se. However, the lack of certainty about fees and the scope of representation leads to other problems. I have a written contact that is under constant revision. I have competing desire to keep it short and simple, while also leaving no room for misunderstanding.

Conflict Of Interest

If you are charged with possession and there is a codefendant you should both have separate defense counsel. Why? If there is a trial, both parties have an interest in saying the dope belonged to the other party. An attorney can’t zealously represent both clients in this situation.

This is professional responsibility 101, but often defense attorneys will try and find some way to represent both defendants. This is a common problem with family members and married/dating couples. Understandably, they often want the same attorney. It is the attorney’s duty to recognize this conflict and avoid representing co defendants.

Some Grievances Are Frivolous
There are some great attorneys who have been grieved frivolously. The common scenario is a court appointed defendant who receives a long jail sentence. Someone serving 20 years in TDC has a long time to write a grievance. Claims without merit are dismissed early in the grievance process. An attorney who has had a grievance filed against them may be a wonderful lawyer with a bad client. So don’t read too much into dismissed grievances.

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One response to “The Criminal Defense Bar’s Grievance Problem”

  1. Robert:
    I was on the grievance committee for 6 years. At the top of the list of problems was the failure to communicate with the client. Simply returning all phone calls within 24 hours would reduce grievances by over half. The contract is also a great way to make sure there is no misunderstanding about the fees and collateral representation. And obviously, the fewer cases we have, the fewer phone calls and contracts we need to tend to.


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