Don’t Step On It
One of your best small business clients calls you one evening and tells you that his son just got arrested for possession of cocaine. He asks you if you will represent him. He wants you to meet with his son at the jail and attend the arraignment and bond hearing the next morning.
The last thing you ever wanted to do when you went to law school was to appear in court and be a criminal defense attorney. But the client is persuasive and you agree to see what you can do. My first advice is not to do it! Stay within your area of expertise and offer to do your best to find a competent attorney to represent his son.
But, if you are a recent graduate who has gone solo, and the person seeking your services is a person in the community who has significant influence and you want to make a very good impression as someone who is not afraid to take on a challenge. Ok, go for it! But, if you do I would recommend the following three steps to keep you out of trouble.
- Seek the assistance of someone who is an expert in that area of law. Find an attorney in your jurisdiction who is a criminal defense attorney with a good reputation. If it is late at night, and you will be visiting your client’s son early the next morning, read what you can find on the internet about that area of law. In our jurisdiction, we have access to materials in the Basic Practice Manual which cover the fundamentals and principle admonitions when defending a client in drug offense cases. Your main concern with a client detained in jail will be to admonish him/her to remain silent regarding the facts of their case and not to discuss their case with anyone but the attorney representing them. Your main task at this point in the case is to do no harm and that means not to commit to any agreements with the prosecutor until you have consulted with someone who has experience in these matters. For a civil matter, generally you will not be dealing with the kind of urgency that that drug arrest might entail and you will have time to do more research before meeting with the client. Doing your research BEFORE meeting with your client is very important.
- Do your homework to become familiar with the subject matter as much as possible before meeting with your client. You don’t need to acquire expertise before meeting with that client. You only need to survey that area of law to know the most common issues that you are likely to encounter. After you do that, call the client, if possible to have them bring all the paperwork possible before hand so that you have it to review as you conduct a further investigation after they leave. For the client in jail, it will help you create a checklist of questions to ask while you are in the presence of your client as he/she will have limited access to phones after you leave unless they are released on bail. When you first engage a client you may wish to draft the retainer to “research and advise” as the first step in your representation. This allows you to conduct your research and determine whether you should continue. You may find that the case has no merit or that the client’s cocaine arrest wasn’t the first time he has been engaged with law enforcement.
- Commit or Disengage. Now that you have done your preliminary research and met the client and signed a retainer to research and advise your client, it is time to determine whether you have the skills and ability to represent your client competently. It is far better to associate with an experience practitioner and reduce the amount of money you would make by fee splitting with another expert, with the client’s consent, than to muddle your way through and ruin your reputation. Be honest with your client concerning your competence. They will not think any less of you if you tell them that you would not want to risk a bad result. Due to your lack of experience, you would recommend co-counsel be brought on to assist you. On the other hand, if you investigate the matter and you feel that it has no merit, be honest with the client and decline to go further. Clients who tell you it is about the principle and they don’t care about the risk or the cost are the ones who complain that the outcome is not the one they wanted. They are the ones who often refuse to pay your bill and they will speak poorly of you to others. Bow out when you can. That is the purpose of “research and advise” as those are the extent of your services and you are not committed to take the matter to court. If you do your homework and feel it is a task that you can tackle competently, go ahead.
Don’t be afraid to seek out the advice of someone who has extensive experience in the area of law that you do not practice. Find out what basic books they would recommend or where they would suggest you go to get grounded in the basics. Often, when you seek that advice, those attorneys will send you forms, checklists, and make other suggestions on how you might approach your task. Don’t be afraid to ask – what do you have to loose?
However, I want to emphasize that it is best to narrow your focus and not try to be a generalist as there are too many inefficiencies associated with that approach. But, on occasion, you may have a long-term client who seeks your advice for a matter unrelated to your speciality. My first advice is to refer them out to someone who does that on a regular basis if it is a matter which has significant consequences. EVEN WITHIN YOUR OWN SPECIALTY, THERE ARE LANDMINES IF YOU ATTEMPT TO DO WORK THAT IS BETTER LEFT TO EXPERTS. Learn in the shadow of one who has expertise and when you get that feeling that you are out of your comfort zone.
Let the experts utilize their expertise and you be the one who vets out who that should be for your loyal client. And even within a specialty, I would highly recommend you establish relationships with tax attorneys, CPA’s, social workers, financial planners, patent and IP attorneys, and others who are highly specialized and send your clients their way instead of trying to find your way and committing malpractice.
My students who submitted their business plans in my directed study, Solo By Design, from this past term summarized the visits they had with other solo practitioners. Quite a few of them observed that the ones who were the least successful were the ones who were not clearly defining their practice areas, or those who took the easy road to being busy by doing assigned criminal defense work which is low pay, slow pay. As many of them observed, it was a good way of getting experience in court. I have heard this time and time again from my students in the past.
There is plenty of business out there if you specialize and market your skills in the area of law that you practice. Don’t reach into the high-risk abyss when you don’t need to.