Volume 19, Number 7
October/November 2002


Criminal Law

By Pauline A. Weaver

It's 2 a.m. Your sound sleep is shattered by a call from your biggest client, whose daughter has been arrested for drunk driving: "You've got to do something!" she pleads. As much as you might want to tell your client she's got the wrong number, that's not an option. For you, it could be time to step into a new area of the law. This can be intimidating, but knowing a few simple things can help you protect the daughter.

Prepare

The best time to prepare for such a call, of course, is before it ever happens. Where can you go for help with criminal law issues? Ideally, you find a mentor, an agreeable friend in private criminal practice, or a public defender in your area willing to teach you the basics. Be careful of their time, but don't be afraid to ask questions-most people are flattered to be considered an expert and are more than willing to help.
So that your first foray into the criminal department isn't the day you represent your client's daughter, do some preparatory research on your own. Go to the courthouse and watch arraignments. See how experienced attorneys handle the process. If you have a question after watching the proceeding, ask the attorney who appeared for a bit of time to explain it-most will. Spend some time in pretrial and trial departments; you may never get this far in a criminal case, but you will have more information to give the client about the process. A supplement or alternative to this might be "shadowing" your mentor for a day-especially if court is scheduled. This is a great way to prepare.
Bar associations in your area may offer continuing legal education courses in criminal law, and some public defender offices open their courses to private practitioners. Take advantage of these opportunities-you get a chance to talk to defense counsel and pick their brains as well. Several national organizations specialize in criminal defense, most notably the National Association of Criminal Defense Lawyers (nacdl.org) and the National Legal Aid and Defender Association (nlada.org). Consider joining one of these or the criminal law section of your local bar association, which can provide contacts, monthly publications, and updates on the law. Introductory texts can also help prep you on the basics of criminal law, so you at least know the questions to ask.

Assess

But what do you do after you answer your client's call? Even if you think you ultimately will refer the case to someone more experienced, you can do a lot that can help avoid later problems.
First, find out whether the daughter is a juvenile or an adult. This will narrow the possibilities for the holding facility. Does the mother know where the daughter is being held? This will save you needless phone calls and much frustration, because many counties, for example, have detention facilities run by individual cities as well. Can the parents afford to post bail? Have they done so? If the daughter is still in custody, you may have to visit her at the jail, and you may be the first person she talks to since her arrest. Before you meet with the client, try to get the police reports on the incident.
When you meet with your new client:
o Reassure and calm her. Visits for anyone but attorneys will be limited to regular visiting hours, and adopting this "parental" role will no doubt be welcomed.
o Explain the forthcoming process. Tell her about the possibilities of bail or release on her own recognizance (OR, release without posting a bond). Get background information for an OR motion, such as length of time in the area, job and educational history, prior criminal involvement, and contacts in the community.
o Tell the client not to discuss or write about the case with anyone. Emphasize that this includes family members, friendly police officers, friends, cellmates, and so on.
Having taken care of the basics, you next must decide whether you can comfortably handle the case. Is it a simple drunk driving, or does it involve an accident? Was another party injured? Is the charge a misdemeanor or a felony? If you conclude you're in over your head, refer the case out-it's far better to do so than to make a misstep that may cause permanent legal damage.
If you decide to take the case, be absolutely clear that the person who pays the piper does not get to call the tune. The mother may pay your fees, but this doesn't mean she's entitled to sit in on client interviews, hear client confidences, or dictate the course of the case. This is one of the hardest things to control, but control it you must. In many jurisdictions, the attorney-client privilege is waived if a third party is privy to protected conversations. You must be an advocate for your client, not for the person who pays your bill.
Finally, if at this point you're still undecided about taking the case, ask yourself the ultimate test question: If this were my son or daughter, would I want someone with my experience and skill to handle the matter through to its conclusion?


Pauline A. Weaver

is an assistant public defender with the Alameda County Public Defender in Oakland, California. She has practiced in the area of criminal defense for 20 years and has extensive trial experience.

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