For the Defense - Vol. 4, Issue 2 - 41

preparation of his defense. The client must
attend important meetings, review discovery and
participate in every aspect of case preparation-
no exceptions. You must establish from the
beginning of the relationship that "I'm too
busy" or "I'm a CEO" "I'm a senator" with more
important things to do, etc., will not work and is
unacceptable. If you cannot exert control of the
client and command their attention and active
participation, then you should not undertake the
representation-it is that essential. There should
be no messenger or conduit between the lawyer
and the client. The relationship must be close,
direct and based on mutual respect and trust.
Likewise, do not allow the executive or senator
client to be the "boss" or "chairman" in the
courtroom. Make clear before hearings and trial
that tugging on your shirt sleeve or passing notes
in all but the most exceptional of circumstances
will not be tolerated. Advise the client to meet
with you early before court, on breaks, at lunch, or
other appropriate times to address any concerns,
questions or input.
Of course, such relationships are not formed
immediately in the initial client meeting or
maybe even in the second or third meeting. Time
spent fostering the attorney-client relationship
is necessary to earn the trust and confidence
of your client, an essential ingredient for this
fiduciary relationship. Long before you have the
opportunity in court to show your client your
ability and worth, it is critical to earn that trust
and confidence outside the courtroom-in every
meeting, every phone call, every communication.
Do not wait for the razzle-dazzle of courtroom
performances, which sometimes can fall flat
due to no fault of your own. Show your worth,
demonstrate your expertise and added value from
day one. Demonstrating this level of constant
performance and unwavering commitment will
invaluably serve your relationship with the client
and facilitate the execution of all the practice
pointers proposed in this article.
Managing client expectations is equally
important. Many high-profile clients are
accustomed to people telling them what they
want to hear. In a criminal case, this will not work.
No attorney can guarantee an outcome for a
client-ethically or practically.10 To the contrary,
defense counsel is paid to tell the client what he

probably does not want to hear-to advise of the
true risks, to make clear the "worst case scenario",
to help navigate those risks, and to prepare the
client for potential outcomes, both favorable and
devastating.
When communicating harsh realities, be
prepared for and patient with the client's initial
push-back, denial or anger. In advance of these
discussions with the client, particularly those
where you intend to address a particularly
high risk or daunting outcome, prepare several
speaking points that highlight a positive facet of
the case-a fact or legal concept that is particularly
helpful to the overall defense, or that mitigates
culpability-these will serve to counterbalance the
weight of the more foreboding information and
make you less the doomsayer and more the trusted
advisor. This may seem like a small, insignificant
tip, but it can go a long way when your client is
staring down the tunnel of an invariably long and
perilous criminal prosecution.

Manage the Client's Entourage
Another challenge in the representation of a
high profile criminal defendant is establishing
yourself as the lead advisor and final say in all
major case decisions (with the exception of those
ethically confined to the client's discretion-
although, even in that realm, you should still be
the leading voice of reason and client advocacy).11
High profile clients often have an entourage of
"experts" and "advisors" whispering in their
ears, and many of these individuals have zero
knowledge about criminal law beyond what they
have gathered from Judge Judy, Perry Mason or
the like. Members of the entourage may come in
the form of in-house counsel, the family/personal
consigliere, accountants, agents, longtime friends,
family members, fellow executives, mentors, chiefs
of staff, or-the worst kind-the client's wife's
brother's uncle's friend's second-wife's cousin,
twice removed, who happens to be a lawyer
specializing in Intellectual Property work.
Clients with the financial wherewithal may
retain shadow counsel or co-counsel from bigger
firms or who may even qualify as celebrities
themselves. Do not take this personally - there
is no room for ego in a foxhole. That said,
maintain your position as lead counsel. Be aware

Vol. 4, Issue 2

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For The Defense

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For the Defense - Vol. 4, Issue 2

Table of Contents for the Digital Edition of For the Defense - Vol. 4, Issue 2
