For the Defense - Vol. 3, Issue 2 - 2018 - 21

he client is demanding. The client lies to
you. The client does not trust you. The
client does not follow your advice. The
client texts you and calls you at all hours. The
client posts items on social media about the
case. The client disappears and will not return
calls. The client reaches out to witnesses to talk
to them about the case. The client likes to shoot
the messenger. The client is difficult.
As criminal defense lawyers, we have more
than our share of difficult clients. Some of
these difficulties have turned into our most
rewarding cases, others have become sources
of vexation, anxiety and even inquiries from
the Disciplinary Board. Our control over these
outcomes is limited, but there are things that we
can and must do to improve the attorney-client
relationship. This article explores how some
"lawyer/life hacks" and the Rules of Professional
Responsibility can help to shape your strategies
to smooth sailing in all your cases. For the
purposes of this column, we focus on three areas
- taking the case, communicating with the client,
and termination of the representation.
Taking the Case: A Match Made in Heaven?
A new client comes to you with a type of
matter that you have not handled before or is
outside of the jurisdiction where you enjoy a
home field advantage. Can you take the case?
Rule of Professional Conduct 1.1, Competence,
recognizes that expertise is not required in every
case and that a lawyer can often achieve a level
of competence in a given matter in a reasonable
amount of time. Indeed, Comment 2 to the Rule
acknowledges that issue-spotting is "perhaps the
most fundamental legal skill ... that transcends
any particular specialized knowledge."
As a criminal defense lawyer, you have
a strong sense of where the issues are and
rely on your investigation, negotiation, and
litigation skills to defend a wide variety of
offenses. But, the next question is how does
your experience and comfort level fit with the
client's temperament? Is the potential client

someone who has the imagination and patience
to appreciate your particular set of skills? If the
client is going to be unhappy with your level of
expertise, the representation may get off on the
wrong foot and go south from the start.
One of the most important "lawyer/life
hacks" that applies across the board is to set and
manage expectations. Make sure the potential
client understands your relevant experience and
that it means you have some homework to do;
agree on how this learning curve is going to be
billed. Explain to your client that you have been
in this situation before with other matters and
that you have succeeded. Your honesty shows
that you respect the client, have faith in yourself
and will help build trust. When an attorneyclient relationship is built on a foundation of
respect and trust, the demands and difficulties
will naturally decrease. The public defenders in
our ranks, who do not generally get to "choose"
their clients, are role models here in their ability
to gain the respect and trust of a clientele that
comes with its own set of challenges.
Aside from levels of expertise, sometimes the
client is not a match for other reasons that and
maybe you just cannot put your finger on it. Pay
attention to that feeling in your gut. As one of
my former partners used to say: "Say no, feel
bad for twenty minutes; say yes, feel bad for two
years!"
Communication: When is Enough Enough?
A recurring theme in disciplinary complaints
against criminal defense attorneys is lack of
communication, and for incarcerated clients,
this includes complaints about lack of visiting.
Rule 1.4 sets the minimum standard for
required communication. The Rule requires a
lawyer to promptly inform the client of any
decision that requires the client's consent, to
reasonably consult with the client about how
the client's objectives are to be accomplished;
provide reasonable updates about the matter;
and promptly comply with reasonable requests
for information. Reasonable is the operative
Vol. 3, Issue 2

For The Defense

Table of Contents for the Digital Edition of For the Defense - Vol. 3, Issue 2 - 2018