There are plenty of stories throughout the news - nationally and locally
- about attorneys who give their clients bad advice. I’ve literally
talked to 100s of clients who are in legal trouble because a person with
one black suit who markets himself online as a “top criminal defense
attorney” gave that client poor advice.
Here is an example:
I had a client a few years back who had gotten in and out of trouble for
minor incidents (e.g., speeding, driving under the influence, etc.). I
received a call from him and he had gotten arrested for a serious felony:
possession of child pornography. He came in for a two hour consult, and
he told me what had happened that lead to his arrest. The relevant facts
here are simply that his computer had hundreds of videos of child pornography.
When talking about the legal process, we discussed 4
th Amendment issues relating to the search of his computer and 5
th Amendment issues related to the questions he answered while he was not
Based upon the facts, I told him he was likely to be charged with felonies
carrying one (1) to twenty (20) years in prison for each file he had on
his computer and, like I said, he had hundreds of videos on his computer.
I gave him an honest assessment of the likelihood of success of suppressing
his statements and the seizure of the computer and the subsequent search
of his computer. The honest assessment I gave him was that although I
didn’t know at the time what the evidence that was going to be used
by the prosecutor, I didn’t think it was likely he was going to
be successful. I told him that I would do everything legally possible
to come up with ways to get the evidence suppressed or tossed out, but
based upon what I knew, suppression of the evidence wasn’t likely.
We also talked about likely outcomes if convicted. I told him he would
have to register as a sex offender and he would likely end up in prison
for several years. The client asked me about probation. I told him that
although I would advise him to do everything possible to try and receive
a sentence of probation, it was more likely that he was going to spend
at least two to four years in prison.
I told him that to avoid those likely consequences, if hired, I would advise
him to obtain a sex offender mental health evaluation and start any recommended
treatment immediately. I also suggested several other steps I would advise
him to do in the event he was convicted and standing in front of a judge
someday asking for a sentence of probation.
The client thanked me for my time, told me he appreciated my candor and
honesty and told me he would bring the retainer by the following week.
He never returned. Instead, he hired another attorney. He caught me in
the hall of the court house a few weeks later and told me that he was
“sorry” but he decided to go with his current attorney because
his current attorney, “guaranteed no jail time” and represented
to the client the charges would likely be dismissed.
I told the former client the same thing I tell any clients who choose to
hire another attorney based upon hopeful fantasies spun by other competing
lawyers more interested in a retainer than providing help: “If your
attorney guaranteed your case would get dismissed and you wouldn’t
face jail or prison, you should have hired him.”
I then shook his hand and walked away.
Several weeks later, I read in the paper that the former client had pled
guilty to a felony, he had to register as a sex offender for life, and
he received a sentence of four to six years in prison. In the article,
the judge noted basis for the sentence: the Defendant showed no contrition
considering after the arrest he didn’t get a mental health evaluation
or start any treatment to address an obvious sexually based mental health
issue until a few weeks before sentencing.
Real Life Advice for Real Life Problems
Certainly all clients would like to hear from their attorneys that their
legal problems are simply going to disappear after the attorney uses some
magic Latin legal phrase that causes the prosecutor to run to the courthouse
and file a motion to dismiss. All clients would like to go into court
and have their attorney pound his fists on the counsel table and have
the judge dismiss the case after verbally admonishing the prosecutor for
choosing to file such flimsy charges.
Neither situation is realistic, and attorneys should not portray to their
clients those outcomes are plausible.
Attorneys should use their experience and practical knowledge to give a
real assessment to their clients. Clients do not need to hear the unrealistic
possible outcomes. Most prosecuting bodies have a conviction rate of over
90 percent - which is to say that over 90 percent of the time, a person
charged with a crime will be convicted of something.
Despite those overwhelming odds, several attorneys sell unrealistic hope
to their clients. Providing clients with an honest assessment of what
will happen is what attorneys are supposed to do, not spin the facts and
sell a client hope that has no realistic expectation of success.
Attorneys are supposed to give real life advice to clients for their real
life problems. Informing a client of all possible outcomes is pointless
unless those outcomes are realistic. Telling a client about an outcome
for his or her case that is nearly impossible is not only a breach of
an attorney's ethical duty, but it is also an outright lie and an
all-around bad business practice.
Attorneys at the Berry Law Firm provide honest case assessments to clients.
Clients are always fully appraised of all possible consequences and given
sound advice on the ramifications and outcome of any choice.