The initial office interview determines several things. First, it determines whether a lawyer wants to represent the client and whether the client is comfortable with the lawyer representing him. Finances are important to discuss and sizing up the amount of work that needs to go into a case is often difficult to ascertain. Clients come in all shapes and sizes. The initial office interview is important to determine whether a relationship is in the best interests of both the prospective client and the lawyer.
The Initial Phone Call
The initial phone call is a good place to start. With some exceptions (speeding and minor traffic infractions), quoting a fee over the phone is not a good idea. It is nearly impossible to discuss and understand the potential complexity of the issues involved in the case in a 10-minute phone call. The best avenue is to offer a free consultation, which will allow lawyers to spend enough time making the determination as to whether they want to accept representation. Even if the lawyer is not hired after the initial meeting, the public relations benefit is well worth the time. Counsel has an ambassador leaving the office who may bring counsel other cases in the future.
The Appointment
The lawyer should be on time for the initial appointment. After all, lawyers expect clients to be on time when they set the appointment, don’t they? Have a legal assistant offer the client water or coffee when the client arrives. A client information form should be given to the client upon arrival. It includes, among other things, the client’s name, address, phone numbers (home, work and cell), email address, and a place on the form for the client to indicate the best way to make contact. The prospective client’s prior record and employment information should also be included. Learning about employment will give the lawyer some idea as to whether or not there are licensing issues that have to be taken into account. Bond information, including the name of the bondsman or person who put up bond, should be on the form. It is also a good idea for the information sheet to note that the client should give counsel’s legal assistant the client’s driver’s license so that a copy can be made. Not only does it contain valuable information that the lawyer may need to access in the future, but it also has his photograph on it, and that may come in handy if another lawyer handles a hearing for counsel and is looking for the client at the courthouse. Lastly (and maybe the most important), the form should include a note in bold letters asking the client to “turn off your cellphone when the appointment begins.” There is almost nothing worse than discussing the client’s case, only to have his cellphone begin to ring. It would be even worse if the client took the call.
First Impression
When the client finishes filling out the office form, counsel should have her legal assistant bring it to her for a quick review. After going over the form, it is advisable to go out and greet the client. Counsel should not use the office intercom to tell the legal assistant, “send the client back.” Defense counsel should refrain from acting like a big shot. It will make a better impression if counsel goes out to the waiting room, shakes the prospective client’s hand, and introduces himself. Counsel should ask the client to follow him back to the office and then show the client where to sit. Here is something counsel can say to break the ice: “I know that being in my office is a lot like going to the doctor. You don’t know whether the doctor is going to give you good news or bad news. Let’s spend whatever time is necessary for me to answer your questions and concerns.”
If family members or friends (even spouses) have accompanied the prospective client to the office and want to be present during the interview, it is important to inform them that they should stay in the waiting room because the attorney/client privilege does not apply to them. This is true even in a case involving the husband/wife privilege. Normally, friends and family will understand. After the interview has been completed, counsel can meet with the client’s friends and family and answer any questions that are not privileged. Before the interview with the prospective client begins, the lawyer should assure friends and family that the attorney/client privilege applies even if they decide not to hire him. Counsel should make it clear that they can be open, honest and forthright without the fear that he will tell others.
Quoting the Fee
How much? Everyone wants to know “how much” representation is going to cost. If they have never been involved in the system before, they have no idea. Sometimes it is more than they expect. Sometimes less. If prospective clients ask this question at the beginning of the interview, counsel can remind them that there is no charge for the time that counsel is going to spend with them during the initial appointment, and that counsel will answer questions about cost after discussing all the information concerning the case.
Clients normally have no idea of what goes into the preparation of a case. They watch a television show about a trial and think that in 60 minutes the entire trial can be held. When clients mention costs at the beginning of the interview, sometimes it is a good idea to simply say “I don’t know” and then mention some of the factors that will determine costs. Will the case have to be tried? Will experts be hired? How much discovery is involved? Will counsel need to hire a private investigator to gather evidence and interview witnesses? Does counsel need to file motions or ask for hearings? Is counsel going to develop an affirmative defense?
The fee should be quoted after counsel educates the client about what needs to go into the proper preparation of the case whether it is headed toward negotiation or trial. When counsel has some idea — after discussing the facts with the client — of what needs to be done in terms of preparation, then counsel can spell out in detail what he sees as necessary.
Defense counsel should consider quoting a separate trial fee. Why? First, defense counsel knows neither the expert witnesses the defense must prepare for nor how many witnesses will be listed by the prosecution. Initially, counsel may think the trial will last three days, but the trial may take two weeks. The estimate was incorrect because counsel did not know enough when he quoted the fee.
The second, and perhaps more important, reason to quote a separate trial fee is that it can help build trust with the client. For example, if the defense lawyer determines that the chances at trial are slim, she may want to recommend the negotiated disposition that she was able to obtain with the prosecutor. If her fee included a trial fee, then the client may feel that she is “selling him out” because if he takes the plea offer, defense counsel will not have to spend the time in trial (that the client paid for). This argument is sometimes hard to overcome. But if she charges extra for trial and then suggests that the negotiated disposition is in the client’s best interest, counsel can point out that she will be making more money if the client chooses to try the case. This is a much better position to be in.
Unless the case involves legal advice at the prearrest stage, a “flat fee” should be discussed and quoted — if the jurisdiction allows flat fees.1 Whenever possible, the fee should be paid at the time the contract is signed. The adage, “I want to be your lawyer, not your banker,” is applicable. Counsel should explain that she wants to get the financial aspects of the relationship out of the way in the beginning so that she can concentrate on the case. The purpose of appointments should be to discuss how the case is going and not to argue about overdue payments.
If the client cannot come up with the entire fee initially, counsel should consider obtaining a retainer in a sufficient amount that the client will probably not “walk away and forfeit it” by not paying the remainder of the fee. (The contract should always include a clause stating that any fee received is earned upon receipt and forfeited should the client stop making any agreed upon payments.) Moreover, counsel should try to weed out clients who are so desperate that they will agree to pay any fee when in reality they are never going to be able to afford representation. In such a situation, options include suggesting that the client consider the services of another private lawyer or that of the public defender.
If the client seeks legal advice that does not involve an arrest and counsel determines that an hourly fee is more appropriate, the hourly fee and what it covers should be explained (travel, phone calls, research, meetings, etc.). A sufficient retainer should be placed in counsel’s trust account to cover the anticipated time. The client should be told that he will be required to replenish the account when it drops below a certain amount.
The Contract
If the prospective client wants to hire the defense lawyer and has agreed to the fee quoted, it is imperative that a written contract be prepared and signed by both lawyer and client. Occasionally, a “guarantor” agrees to pay the fee and costs. He or she should also sign the contract. However, it should be made clear to all that the guarantor is not the client and has no authority to direct the defense or make any decisions concerning how the case proceeds.
Most lawyers have a standard contract that spells out their legal services (in a general sense) in return for the money agreed upon by the client. This contract is often in the lawyer’s computer and only a limited amount of information needs to be inserted. It is advisable to have clients sign the agreement at the initial meeting. That way, clients know that they have hired a lawyer and understand that counsel will be filing a notice of appearance upon the payment of the fee or fee retainer. The standard contract should be clear that any fee received by the lawyer is earned upon payment and that the client is signing a “flat fee” contract that is not in any way based on hourly billing. To substantiate the nonrefundable aspect of the quoted fee, it is suggested that the contract provide paragraphs as follows:
a. the time and labor required, the novelty, complexity, and difficulty of the issues involved, and the skill required to perform the legal services properly;
b. the likelihood that the acceptance of the employment will preclude other employment by the lawyer (conflicts);
c. the significance of, or amount involved in the subject matter of the representation and the responsibility involved in the representation;
d. the time limitations imposed by the client or by the circumstances and, as between attorney and client, any additional or special time demands or requests of the attorney by client;
e. the nature and length of the professional relationship;
f. the experience, reputation, diligence, and ability of the lawyer or lawyers performing the service and the skill, expertise or efficiency of effort reflected in the actual providing of such legal services; and
g. the amount involved and the results obtained (that is not, in any way, to be construed or meant as a contingent fee).
The contract should also provide for a cost deposit to be placed in counsel’s trust account and the amount deposited. Further, counsel should consider including a paragraph addressing how controversies, disputes, or claims between client and lawyer will be handled. Such a paragraph may not apply in every state. A suggested paragraph should read as follows:
The client agrees that any controversy, dispute or claim between the client and counsel whether based on the contract, timely payment of fees, legal services, or any other grounds, shall be resolved exclusively through binding arbitration before a board of arbiters consisting of three attorneys, all members of the (local) Bar Association, one selected by the client, one selected by the attorney, and one appointed by the agreement of the two prior appointed attorneys. The client and counsel agree that a proper venue and forum for any dispute over fees and representation shall be (local) County, (State) regardless of any other factors to be considered in making that determination.2
Would it not be better to have understanding lawyers, rather than a jury, making the determination concerning legal and financial matters in dispute?
The contract should also remind the client that the lawyer is in charge of all legal strategic decisions, with some exceptions. In most states the client decides whether to accept a negotiated disposition offered by the prosecution, and the client decides whether to testify at trial. The lawyer makes all other decisions.3 What the defense is going to be and which witnesses will be called are the lawyer’s decisions to make. Except for incompetent, substandard decisions, the lawyer’s strategy will not be questioned. This needs to be made clear in the contract. This should be the last sentence in any contract the client signs: “Client acknowledges receipt of a copy of this agreement on the date it was signed.”
The Letter of Engagement
There are times when the general contract for employment is not appropriate. They may include situations when the client has come to the law office not for representation on a matter for which he was arrested but rather legal services unrelated to a filed charge. It might be for legal research, advice, intervention with a law enforcement agency investigating the client, or even for a victim that needs advice going through the system. When such is the case, a letter of engagement should be considered. Such a letter can be tailored to the legal services being requested. The letter should chronicle what the client has told the lawyer in the initial interview and the way the lawyer is going to provide legal services. In return for those services, the financial arrangements should be made clear. The letter should conclude by suggesting that the client ask the lawyer any questions concerning the content and scope of the letter of engagement. If accepted, the client should sign where indicated on the bottom of the letter, demonstrating his or her acceptance.
The Interview
At the initial interview, the portion of the discussion covering the facts of the case and any potential defenses is incredibly important. A client’s memory of the events will never be better. It is important to have the client recount exactly what, for example, the officer said to him at the scene as well as what the client said to the officer. This information should be recounted word for word. Both the client and the officer know the truth about what was said back and forth. There may be a time when the exact words are used in cross-examination questions to the officer. Defense counsel should consider taping this part of the interview (with permission of the client). In court, defense counsel would be well within his (ethical) rights to say: “Officer, I listened to the tape. Do you confirm that you said ‘________________’ to Mr. Jones?” The officer knows that is exactly what he said, and the officer may hesitate to deny the accusation for fear that it was being taped at the time.
Spending time on the details of the case may also help in determining whether search and seizure or Miranda issues need to be explored. Asking the client about favorable witnesses that might relate to a defense is another avenue to pursue. If a client sustained an injury related to the case, photographs should be taken in the office. If a surveillance tape may exist that could substantiate the client’s version of events, an investigator should immediately try to obtain that evidence. If the case involves an alleged victim, all social media involving that person should be obtained before it can be taken down or destroyed. If there are witnesses who are friendly to both the prosecution and the defense, a private investigator should try and take their statements (even taped if possible) to lock them in to the defense side.
Facebook postings are notorious for helping or hurting clients. Clients should be advised before leaving the office that they should immediately take down their Facebook accounts. Moreover, clients should be warned about texting and appearing on any social media platforms including Twitter, Instagram, and Snapchat.
A client should be told that the investigation into his case is not over. Law enforcement officers may continue to collect evidence against the client even after the arrest. Any statements in any form could come back to be used against him. Imagine that the police arrest a client for drug trafficking. He then wants to do “one more deal,” thinking that his arrest means the investigation is over. Caught again!
Let’s face it, after some initial interviews are over — assuming the client is being honest — the lawyer concludes that the case will probably not go to trial and that mitigation should be collected. The client should be given a “homework assignment” to gather information concerning family, employment, reference letters, accomplishments, and proof that a conviction could affect a particular license (employment, driving, etc.). A client should even be told to consult his mother because his mother undoubtedly has a shoebox filled with awards, news clippings and information that, over the years, speak well of her child.
As clients leave the office after the initial interview, they should be told to sit down at the kitchen table that night, when details are fresh in their minds, and write out everything they can remember about the entire incident. Clients should write down any leads a private investigator should follow up on and, if the case involves an alleged victim, clients should write down everything (good or bad) they can recall about the victim. It should be made clear that the lawyer expects the client to help him in the client’s defense. It is not just the lawyer’s case; it is a joint effort. The client knows many things that the lawyer does not, and this information can make or break a case.
Conclusion
The time it takes to complete the initial office interview may vary. In simple cases, defense counsel may be with a client for less than an hour. In more complicated cases, defense counsel may not be able to finish the initial office interview in one day. Gathering the information needed to properly decide on representation (and the appropriate fee) takes time. It is based on the initial interview that the lawyer will make strategic decisions and start the process of defending.
Notes
- Lawyers should check with their bar associations about fee arrangements and the ethical rules that govern fees.
- See Johnson v. Forier, 67 So.3d 315 (Fla. 2d DCA 2011).
- Lawyers should check with their state bar association about the advice contained in this article. States vary on criminal procedures, fees, and other issues covered.
About the Author
Denis deVlaming is an avid writer and lecturer in areas that affect the practice of criminal defense. He is board certified in criminal trial law and teaches Advanced Criminal Trial Advocacy as an adjunct professor at Stetson University College of Law.
Denis deVlaming (NACDL Member)
deVlaming & Rivellini, P.A.
Clearwater, Florida
727-461-0525
denis@deVlaming.com
www.devlaming.com