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 in custody.
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.