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Criminal Defence Lawyer in Sole Practice - Ask Me Anything


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#1 Diplock

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Posted 05 March 2016 - 07:37 PM

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Hi all

 

I mentioned that I was jealous of Uriel's AMA (can be found here and it's well worth reviewing) so here's mine.

 

I'm a criminal defence lawyer who is self-employed in sole practice, working in Toronto. I've been doing this for over a year now. My path into self-employment in this area is not exactly a straight one. I would prefer to vague up those details at least a little in order to protect my anonymity. I initially articled in criminal defence, I did a few other things, and then when it came time to go out on my own I opened up in this area. Note that it is extremely common for self-defence lawyers to have unusual careers. I'm not sure what "typical" would even look like, necessarily. So ask me questions about this if you like and I'll just decline if it gets too directly personal.

 

I figure I can talk about starting one's own practice (which would be relevant to any retail practice I think - though most specifically relevant to crim), I can talk about this area naturally, I can talk about legal aid, and if there's anything else you want to ask about that's relevant to my experiences I'll give it a shot.

 

Anyway, fire away.


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#2 pzabbythesecond

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Posted 05 March 2016 - 07:41 PM

Thanks for doing this. I have somewhat connected questions- two of them.

Is articling in criminal defence similar to corporate, where you summer with a firm and eventually are brought back to article? And if so, is this more or less difficult than the typical corporate track to attain would you say?

Is it true that there just aren't non-small firms/solo practitioners when it comes to criminal defence in Canada? Or are their medium sized or even large sized firms where you follow a track similar to the partner track at large full service corporate firms?

#3 FunnyLawName

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Posted 05 March 2016 - 07:49 PM

I've always been curious about the actual relationship between the crown and defense lawyers. Where I'm from (Barrie, just north of you) I look into criminal practises sometimes and I notice that a lot of defense lawyers are former Crowns. I don't know what to make of this. Sometimes from the news the relationship seems strenuous. But in academic settings I've read a lot on how this relationship is collegial and the groups actively look for the best resolution possible (obviously balancing social and individual interests).

So I'm hoping maybe you could comment on this relationship. Maybe from your own interactions and taking into account what some of your colleagues have noticed. In my mind it seems to be very adversarial. Though that's informed almost exclusively by watching 'Hang em' High' McCoy on Law and Order.

#4 PerniciousLaw

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Posted 05 March 2016 - 08:10 PM

Interesting. Please forgive me if this comes off as un-educated, but, if your client admits their guilt to you, then how does this condition your approach? I'm pretty sure that I've heard, before, you can still enter a Not-Guilty Plea, which, to my understanding, simply means "prove it", but I am interested in learning more about this particular situation. 



#5 Fjhussain

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Posted 05 March 2016 - 08:16 PM

. When did you know you wanted to do criminal law? Was this the path you intended to follow before or during law school.?

#6 Diplock

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Posted 05 March 2016 - 10:14 PM

Is articling in criminal defence similar to corporate, where you summer with a firm and eventually are brought back to article? And if so, is this more or less difficult than the typical corporate track to attain would you say?

 

Summering at all in criminal defence is very unusual. There may be summer positions in some Crown offices (I'm really not sure) but if you manage to score any related experience in the summer it would be in a clinic - probably one affiliated with your school - or else on a very exceptional basis with someone in private practice. I won't swear it's impossible to score some kind of summer position, because I do know students who have done this (both from my time in school and from observing my colleagues, where there is the odd student around) but it's very unusual. Certainly it isn't something you'll obtain through organized recruiting. You simply have to hustle your ass off and hope to make the right connection.

 

Articling is similarly more about networking than anything, though I believe there are some positions posted through organized channels. My articling was arranged through a school connection. As in, a classmate who knew what I was interested in coincidentally made a connection with a lawyer who was looking for a student and who passed it on to me, so I interviewed, etc. That's far more common than anything arranged through OCIs.

 

In terms of hire-back, due to the small nature of most practices (see below) you'll almost never find a position that offers even a fair prospect of hire back. I won't say it's impossible. You might article somewhere they have enough work that you could return as an associate. But your odds of this are extremely long. You almost have to assume you'll be on the market as a fresh call, and either trying to make a go of it on your own or else looking for someone who has work but doesn't feel like training a student (common) or else figuring out a contract relationship of some kind.

 

Is it true that there just aren't non-small firms/solo practitioners when it comes to criminal defence in Canada? Or are their medium sized or even large sized firms where you follow a track similar to the partner track at large full service corporate firms?

 

There are ... a few of what I might term medium sized firms. I don't know enough about their internal operation to comment on how one might hope to proceed to partnership. But even the largest criminal defence firms probably top out at a dozen or so partners and so joining a firm like that would be far more about personal relationships and one-off decision-making than a structured path that results in partners leaving and joining every year. A new partner in a firm that size is a major event.

 

I could speculate about why criminal defence firms don't tend to organize on a larger basis. But I'd be speculating. Anyway, here are a couple of the larger firms in the GTA (larger by size, not commenting otherwise) to give you some idea:

 

http://www.criminaltriallawyers.ca/

 

http://derstinepenman.com/

 

The first example have a number of partners. In the second, you'll see two partners and (currently, it seems) 10 associates. And yes, that really does qualify as a medium(ish) firm. So you'll see, there isn't a structured path to partnership in a place like that. It could happen. You could simply become indispensable and eventually formalize that fact. But it isn't a path that will be laid out for you.


Edited by Diplock, 05 March 2016 - 10:14 PM.

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#7 Diplock

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Posted 05 March 2016 - 10:25 PM

I've always been curious about the actual relationship between the crown and defense lawyers. Where I'm from (Barrie, just north of you) I look into criminal practises sometimes and I notice that a lot of defense lawyers are former Crowns. I don't know what to make of this. Sometimes from the news the relationship seems strenuous. But in academic settings I've read a lot on how this relationship is collegial and the groups actively look for the best resolution possible (obviously balancing social and individual interests).

So I'm hoping maybe you could comment on this relationship. Maybe from your own interactions and taking into account what some of your colleagues have noticed. In my mind it seems to be very adversarial. Though that's informed almost exclusively by watching 'Hang em' High' McCoy on Law and Order.

 

For the most part, there really is a good and a respectful relationship between defence and Crown. That isn't just a rumour. Note that I'm sure there would be a range of experiences especially in smaller environments where the general atmosphere could be heavily influenced by just a few personalities. But overall, in Toronto, it's perfectly civilized.

 

A few notes. First, mileage may vary. Speaking personally, I far prefer to work with defence lawyers who could be Crowns (that is, they aren't philosophically opposed to that concept) and with Crowns who could be defence. Most fall into that category. Some do get experience working both sides. I've never done Crown work and probably never would simply because I dislike the idea of a bureaucratic, government job. But if I got really prominent and someone offered me a truckload of money to serve as a private prosecutor for some reason ... I wouldn't refuse.

 

Sometimes when you're working opposite sides of a situation tempers flare and people get rubbed the wrong way. Think of it like hockey. For the most part, hockey players respect one another regardless of which team they are playing for. They are even friends. But then when there's a bad hit and maybe some retaliation on the ice, suddenly guys who otherwise get alone are talking trash and are ready to throw down. That can happen. But then you calm down and you get back to normal, where we generally do get along. And truthfully, there's a lot of incentive to get along. Because the job would be impossible (on both sides) without the ability to arrange reasonable deals. Not ever case ends up in a deal, but a fair percentage have to or else the whole thing falls apart. We simply need to be able to work with each other.

 

One final note. When you ask if we "actively look for the best resolution possible" together ... I wouldn't go that far. There are very few Crowns who approach a case thinking "what's best for this accused" and there are similarly few defence who are saying "hmm, let's make sure the public is served with a fair result." What we're doing is trading to a position the Crown can live with and so can we. But frequently the Crown will demand more than is reasonable just because they can, and certainly defence will always take a sweat deal if one is on offer, and never pause for a moment to think it isn't the "right" thing overall. It's still an adversarial system.


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#8 Hegdis

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Posted 05 March 2016 - 10:28 PM

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Interesting. Please forgive me if this comes off as un-educated, but, if your client admits their guilt to you, then how does this condition your approach? I'm pretty sure that I've heard, before, you can still enter a Not-Guilty Plea, which, to my understanding, simply means "prove it", but I am interested in learning more about this particular situation.

I am answering this one because it is so general. It's on three parts.

1.

We talk a lot on this forum about legal guilt versus factual guilt. It is a critical distinction to make. Legal guilt doesn't set in until a judge says so. It is the only kind of guilt you are really concerned with.

Factual guilt is what your client and most people on the street think matters.

Consider this scenario: your client tells you he punched some one in the face during a bar fight. He is factually guilty of hitting a guy. He did it and he meant to do it.

However, he first ducked to avoid getting clocked in the jaw by this person. He didn't want to fight, although the person he ended up hitting was literally saying "wanna go?" to him prior to taking an unprovoked swing.

Now you know your client may be factually guilty but he is not legally guilty. He has both a consensual fight and a self defence argument in play. While you cannot promise a specific outcome, you can advise him a judge is unlikely to find him legally guilty and he should go to trial.

So first learn to draw that distinction. It matters because a lot of self reps plead guilty to things based on their assessment of their factual guilt. And without getting proper instructions and giving your client the appropriate legal advice he could fall into the same trap (a lot of people plead to get the hell out of there because they are scared of the whole criminal process and it seems an easy out).


2.

So. Once you have that nailed down there's the situation where your client's instructions tell you he is not only factually guilty but a judge will almost certainly find him legally guilty as well.

In that case you can advise him to plead because an early plea will offer the certainty of a lesser sentence. It is his choice to take it but your advice will probably be to get it over with for the mitigation bonus he gets for an early plea.

Qualifier: Unless Crown is being silly and not offering a joint submission on a deal worth taking, or unless there is an unfair mandatory minimum in play. In that case may as well run the trial. Maybe a witness won't show. Maybe Crown will fumble their case. It happens.

But you are probably really asking about -

3.

Your client has a defence he can run but he also provides you with enough detail that you know he did it, meant to do it, and if the evidence were stronger he would be convicted of it.

For example, a drug dealer whose trunk full of cocaine was subject to a warrantless search. Or a rapist who wore a mask. Or a college kid who accessed child porn on his room mate's computer.

Here is where your duty kicks in. First, if you know your client did it but the evidence is not strong enough to ensure a conviction, you advise him to go to trial and you test that evidence. The drug dealer should know the whole case rides on the voir dire prior to trial regarding the legality of the search. If the cocaine is in, he's done.

Second, for things like the ID cases, you keep certain things in mind as an officer of the court: you cannot suggest to a witness that it was not your client who did it. You can only suggest that they cannot be sure that it was.

You also cannot put forward an alibi if you know it is false. You cannot put your client on the stand if you know he is going to lie. (You cannot put any witness on the stand if you know they are going to lie.)

Your theory of the case becomes "the Crown cannot prove this beyond a reasonable doubt" as opposed to "my client did not do this". It is subtle but it is important to grasp that distinction. Your client is factually guilty. But on the weak evidence, he is not legally guilty. And that is all that matters.
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#9 Diplock

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Posted 05 March 2016 - 10:29 PM

Interesting. Please forgive me if this comes off as un-educated, but, if your client admits their guilt to you, then how does this condition your approach? I'm pretty sure that I've heard, before, you can still enter a Not-Guilty Plea, which, to my understanding, simply means "prove it", but I am interested in learning more about this particular situation. 

 

Well, you've pretty much summarized it already. In very simple terms, while defence can try almost anything in defence on their client - including simply demanding that the Crown prove their case beyond a reasonable doubt - we can't knowingly lead perjury on the stand. So if you have a client who has admitted factual guilt to you, you can't call that client as a witness (well, you could, but it would be incredibly stupid since you can't lead them into lying to the court and the truth will convict them) and you can't present a theory of the case that relies on what you know isn't true. You can't, for example, suggest your client was out of the country. But you can absolutely just say to the court "hey, the Crown hasn't proved it" even if you know, based on what your client has told you, that certain things did factually happen. Nothing at all offside about that.

 

EDIT - Hegdis has been very polite and indicated that the discussion was too much to resist. So please, refer to the more comprehensive answer above. Also be aware that Hegdis and others do have experience in this area, and in some cases considerably more than me. So people are welcome to contribute to this AMA. About the only area where I think I have the best experience on this board is in starting a new practice from scratch in this area.


Edited by Diplock, 05 March 2016 - 10:31 PM.


#10 Diplock

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Posted 05 March 2016 - 10:37 PM

. When did you know you wanted to do criminal law? Was this the path you intended to follow before or during law school.?

 

You know, I expected I would get this question and I'm not even quite sure. I think part of me resisted criminal law, even though it was obvious based on my prior experiences, simply because it was too obvious. Being the kind of lawyer you see on TV (all lawyer television programs seemed to be criminal related, before I went to school) was just so obvious. I doubted my leanings in this direction as a result.

 

By the end of 2L I think I knew. I was still interested in some other areas though. My summer experience was not related to criminal law, though it did give me some litigation experience.

 

My advice about how I knew, and how I encourage students to think about this, hasn't changed in a number of years. I think you are best off thinking about what kind of clients you want to work with, and in what kind of environment, and working back from there. I always knew I wanted to work with real, individual people and help to solve their pressing legal problems. I wanted to be the guy that a real person calls and says "I really need someone to help me" and not the guy a corporation keeps on retainer. In hindsight, the signs all pointed to criminal defence. It took me a while to figure it out though.


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#11 serdog

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Posted 06 March 2016 - 02:29 AM

Any tips on learning the book keeping side of law ? That's my biggest worry
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#12 ericontario

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Posted 06 March 2016 - 07:38 AM

Did you go out and get office space right off the bat, or did you use shared space, or work from home, etc? 

 

How long does it take to get empanelled for LAO?



#13 Esper

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Posted 06 March 2016 - 08:52 AM

How's your criminal defence hair?

 

Please this.



#14 PerniciousLaw

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Posted 06 March 2016 - 10:11 AM

But you are probably really asking about -

3.

Your client has a defence he can run but he also provides you with enough detail that you know he did it, meant to do it, and if the evidence were stronger he would be convicted of it.

For example, a drug dealer whose trunk full of cocaine was subject to a warrantless search. Or a rapist who wore a mask. Or a college kid who accessed child porn on his room mate's computer.

Here is where your duty kicks in. First, if you know your client did it but the evidence is not strong enough to ensure a conviction, you advise him to go to trial and you test that evidence. The drug dealer should know the whole case rides on the voir dire prior to trial regarding the legality of the search. If the cocaine is in, he's done.

Second, for things like the ID cases, you keep certain things in mind as an officer of the court: you cannot suggest to a witness that it was not your client who did it. You can only suggest that they cannot be sure that it was.

You also cannot put forward an alibi if you know it is false. You cannot put your client on the stand if you know he is going to lie. (You cannot put any witness on the stand if you know they are going to lie.)

Your theory of the case becomes "the Crown cannot prove this beyond a reasonable doubt" as opposed to "my client did not do this". It is subtle but it is important to grasp that distinction. Your client is factually guilty. But on the weak evidence, he is not legally guilty. And that is all that matters.

 

 

Well, you've pretty much summarized it already. In very simple terms, while defence can try almost anything in defence on their client - including simply demanding that the Crown prove their case beyond a reasonable doubt - we can't knowingly lead perjury on the stand. So if you have a client who has admitted factual guilt to you, you can't call that client as a witness (well, you could, but it would be incredibly stupid since you can't lead them into lying to the court and the truth will convict them) and you can't present a theory of the case that relies on what you know isn't true. You can't, for example, suggest your client was out of the country. But you can absolutely just say to the court "hey, the Crown hasn't proved it" even if you know, based on what your client has told you, that certain things did factually happen. Nothing at all offside about that.

 

EDIT - Hegdis has been very polite and indicated that the discussion was too much to resist. So please, refer to the more comprehensive answer above. Also be aware that Hegdis and others do have experience in this area, and in some cases considerably more than me. So people are welcome to contribute to this AMA. About the only area where I think I have the best experience on this board is in starting a new practice from scratch in this area.

 

Hi folks, 

 

Yes, I was primarily asking about number 3. I was also interested in the duties that kick in once factual guilt has been admitted. From what I understand, and within the scenario in number 3, the main route you can take is to test the evidence, advanced by Crown counsel, in hopes that you can put doubt into the judge or jury's mind to find him/her not legally guilty. 

 

Thanks again for both of your help. The information you provided was very informative. 

 

I also want to highlight there was nothing in particular driving that question, other than criminal work is something I am interested in. 

 

Thanks again! 



#15 Diplock

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Posted 06 March 2016 - 10:14 AM

Any tips on learning the book keeping side of law ? That's my biggest worry

 

Yeah, this is something that no one really teaches you. If you have the opportunity, article with a sole practitioner (sorry, can't recall what stage in your career you're at) and hopefully pick up some tips from that experience. I think if you article with a sole you're perfectly entitled to say "I'd like to learn not just how to help you, but how your practice works." I know if I ever took on a student (not there yet, but one day) I'd present that as a selling point and I'd be most interested in a student who say learning how to work as a sole as an upside.

 

All I can really say is that it's less complicated than you think. Once you start doing it, you would be surprised at how straight forward it is, though it is real work and needs regular attention. Here's what you really need to do:

 

1. Open a mixed trust account. Go to a bank that has other lawyers because then they are less likely to be confused. For crim, you won't use this much. In other areas of practice, it becomes very, very critical to do this properly. In crim you can't screw it up as badly. It's really just to hold cash retainers for work not yet performed, rather than having large estates or real estate deals flowing through your trust.

 

2. Set up a system to track when money goes in, when money comes out, and who's money remains in your trust.

 

3. Track all your work-related expenses and the HST you pay on them, because you'll be deducting former and claiming back the later at the end of the year. If you aren't sure about what you can deduct, spend a small amount of cash or call in a favor with a personal tax accountant. There's no firm rule here. But better book-keeping is your friend. I attribute, for example, 80% of my car-related costs and 60% of my personal phone to my practice. I haven't been audited yet, but I'm assured this isn't unreasonable.

 

4. Track all your private retainers, who owes you what, when they paid you, etc. And find a way to be sure you don't forget any money.

 

Honestly, rather than learn a pre-packaged management system (which do exist, but they are costly) I just created a bunch of spreadsheets because I'm good with Excel. It isn't fancy, but it does the job. There are still wrinkles I'd like to iron out and things that aren't organized as well as I'd like (the information is there, it's just not arranged in the most convenient ways - and I don't yet know what would work better) but it does what I need.

 

Final, generic advice, actually, and this applies to a range of things. If you're going to set up on your own, devote large amounts of time to figuring out systems and sorting out how you are going to do things right at the start. That's when you'll have time. If you wait until you're busy to figure out what you need, you'll always be slapping things together. You need hours each week devoted to just practice management. Don't skimp on that. That's how lawyers get into awful messes and end up before the law society - because their administrative problems became practice problems became massive professional fuck ups.


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#16 Diplock

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Posted 06 March 2016 - 10:26 AM

Did you go out and get office space right off the bat, or did you use shared space, or work from home, etc?

 

I work in shared space with other lawyers. You've drawn a distinction between "office space" and "shared space" and I don't know how you are differently envisioning them. If you mean office space to indicate space I personally rent from a commercial landlord and it's all mine - I don't think any lawyer starts out that way nor would I recommend it. I have an office that I rent in a larger space where there are other criminal defence lawyers. My rent helps defray the costs of the space for more established lawyers, and there are a number of places that do this. They are typically called "law chambers." This is actually better than having your "own" space because it gives you a professional environment to work and to meet clients, but it also gives you the support of having other people around who know their shit and where you can ask stupid questions. Also, it saves you from getting lonely.

 

In a good situation like this, you can hopefully pick up agency work from the other lawyers around you - if you're just starting out it may be minor stuff like set dates where you make $50 here and there for going to court. But it's something, at least, and it gets you into court. In a really good situation you might get full file referrals for stuff they don't want. But don't hold your breath on that. There are very few lawyers in a position to pass entirely on files, even when it's legal aid. You still need to hustle for your own work. Where you might score your own clients just by sharing space is when there are co-accused. Here's where being sole is actually an advantage. If you have four lawyers in one office and they are in partnership, the partnership can only represent one co-accused in a matter. But if you are all independent, and one lawyer scores a file where there are multiple accused, you can share them around the office (assuming the clients are agreeable, of course) and you all get work.

 

I never tried working from home. At one point it was a possibility. If you have a quiet environment and you are good at working at home with dedication and you can arrange some dignified place to meet clients when you need to ... either at a very legitimately set up home office or else more likely at courthouses, using lawyers' boardrooms, etc. ... it can be done, but it isn't ideal. The other points noted above are too important to a new practice. I'd almost say a home office is more realistic for a better established practice where you need the support network less, even though that's counter-intuitive.

 

Put it this way. An office in chambers in Toronto (if you aren't too picky) can be had in the range of $1,000/month, more or less. Though fancier ones right downtown are available also. You can get a place to work and access to a boardroom to meet clients, and access to the support networks too, for as little as $500/month. It's a very good investment in your practice. If you can't manage even that much overhead, to start, you maybe shouldn't be starting.

 

How long does it take to get empanelled for LAO?

 

I did reasonably well here. I think around three weeks. But I agree with the general advice that you should allow 4-6 weeks. Should be one of the first things you do (applying to be empaneled) once you decide to start on your own.


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#17 Diplock

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Posted 06 March 2016 - 10:49 AM

How's your criminal defence hair?

 

Please this.

 

I have conventional(ish) hair now. I didn't always. Criminal defence is one of those areas where you have much greater latitude to be an individual, in terms of hairstyle and in other ways. Maybe not quite as far as that pic, but certainly farther than in other areas of law. It really comes down to what kind of image you want to project and the kinds of client you intend to serve.

 

Put it this way - to make a serious point off a joke. In large firms, I sometimes hear students on this board bitch and moan about how it isn't "fair" that they need to conform and even that it's somehow a violation of their individuality and their rights to suggest they (cut the hair) (grow some hair) (cover the tattoos) (take out the piercings) (wear less revealing cloths) (discover the wonders of shoe polish) etc. etc. etc. In criminal defence, you'll rarely hear that. Maybe you'll get it a bit from an articling principal or something, but once you're out in practice no one tells you how to dress or look, over and above meeting basic court decorum. It's just that you also need clients. And at some point you realize for yourself that if your expressions of individuality are turning off clients, who then go to the next lawyer who looks more like a "real" lawyer, it's going to impact your ability to make rent. Then things become much clearer to most people.


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#18 Diplock

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Posted 06 March 2016 - 11:04 AM

Hi folks, 

 

Yes, I was primarily asking about number 3. I was also interested in the duties that kick in once factual guilt has been admitted. From what I understand, and within the scenario in number 3, the main route you can take is to test the evidence, advanced by Crown counsel, in hopes that you can put doubt into the judge or jury's mind to find him/her not legally guilty. 

 

Thanks again for both of your help. The information you provided was very informative. 

 

I also want to highlight there was nothing in particular driving that question, other than criminal work is something I am interested in. 

 

Thanks again! 

 

If you're interested, btw, this question you've asked isn't remotely theoretical and it isn't only about the client who comes into your office and puts a bloody knife on the desk and says "I just killed my wife." This is a much more common scenario that arises regularly in criminal practice. I'll give you an example.

 

There are times when you specifically don't want to know things so that you aren't limiting your ability to advance a defence. But often you end up knowing things anyway, or else deciding early on that your client is a terrible witness (if only because of an extensive, related record) and all you're left with is the Crown's case. I've had several cases which basically all follow the same pattern - probably most lawyers have had this case at some point. There's a video recording of someone doing something. For various reasons, the police suspect it's your client. Maybe he's known to them and looks enough like the guy in the video that they've fingered him. Maybe a license plate appears in the video (more common than you think - and easier to read than a face with any certainty) and they ID the car and then determine the owner. Maybe someone has suggested it could be your client. For whatever reason, they arrest your guy. And the actual video is poor quality. Sure, it could be your guy. Could also be a lot of other guys of similar height, build, and ethnicity. And that's the entire case.

 

Now, here's a practice tip. This is a shitty case for the police. They know it's a shitty case. The Crown who eventually gets it knows it's a shitty case (or will, once they actually look at it). There isn't any reasonable chance of convicting your client with the case as stands. So, why do they proceed anyway? First, because they are going to get your client into custody and hope he incriminates himself. Happens far more often than you'd think. Second, because it's their job and they need to arrest someone so if all they've got in a shitty case they often throw it at the wall anyway and hope something sticks. And third, because even if the client keeps his mouth shut and even if the case stays weak, if he gets a shitty lawyer who doesn't do the job properly they may never notice and plead him to something anyway. The third point is a real problem. I may talk about that more. I'm not sure yet exactly sure what I'd say.

 

Point is, you don't need a murder confession to the lawyer to set up this scenario. This is a straight ID case. I may know my client did it. Or I may suspect. I know for damn sure I'm not calling him as a witness. So all I've got (and in this example, it's a lot) is to say "that could be anyone in the video, and you damn well know it." The case doesn't even get to court. At some point, if you show you're willing to take it that far if necessary, they simply drop it.

 

Anyway, I hope that example helps.


Edited by Diplock, 06 March 2016 - 11:07 AM.

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#19 PerniciousLaw

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Posted 06 March 2016 - 11:52 AM

Interesting. Thanks for responding.

 

1.

 

There are times when you specifically don't want to know things so that you aren't limiting your ability to advance a defence. 

 

 

I was thinking of this when I wrote my post earlier today, but I figured I shouldn't bring it up because it didn't make sense (in my mind, anyway). If you specifically tell your client to not tell you whether he/she is factually guilty (when you have a suspicion he/she is), in an attempt to not limit your ability to advance a defence, then isn't that a breach of some duty? The duty I am thinking of (which I am not sure if it even exists) is the duty to genuinely, in good faith, investigate the facts of the case, without deliberately ignoring certain aspects that merely serves to not limit your defence? In other words, does a duty exist to, in good faith, investigate the facts of the case before advancing a potential lie to the court? 

 

2. 

 

 

[...] First, because they are going to get your client into custody and hope he incriminates himself. Happens far more often than you'd think. Second, because it's their job and they need to arrest someone so if all they've got in a shitty case they often throw it at the wall anyway and hope something sticks. [...]

 

 

Do these points not suggest the system operates oppressively? Why would they want someone to incriminate themselves, when that person, they very well know, is factually guilty? Maybe it leads into your second point, which is that it is their job and they need to arrest someone. But why do they need to arrest someone? If they have little reliable proof, then why do they even advance the charge? In my mind, this suggests they have some sort of quota to meet. Is this true? I guess the crux of my question is: why do they advance a charge, with little reliable proof, without investigating further to find more reliable, concrete evidence? 


Edited by PerniciousLaw, 06 March 2016 - 11:53 AM.


#20 Diplock

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Posted 06 March 2016 - 12:11 PM

I was thinking of this when I wrote my post earlier today, but I figured I shouldn't bring it up because it didn't make sense (in my mind, anyway). If you specifically tell your client to not tell you whether he/she is factually guilty (when you have a suspicion he/she is), in an attempt to not limit your ability to advance a defence, then isn't that a breach of some duty? The duty I am thinking of (which I am not sure if it even exists) is the duty to genuinely, in good faith, investigate the facts of the case, without deliberately ignoring certain aspects that merely serves to not limit your defence? In other words, does a duty exist to, in good faith, investigate the facts of the case before advancing a potential lie to the court?

 

No, that duty doesn't exist. Certainly not in the way you are phrasing it. You're an advocate, not an investigator.

 

And for whatever it's worth, the way I learned to approach this isn't to say "don't tell me if you're guilty" but rather "answer the questions I ask, and only the questions I ask."

 

Do these points not suggest the system operates oppressively? Why would they want someone to incriminate themselves, when that person, they very well know, is factually guilty? Maybe it leads into your second point, which is that it is their job and they need to arrest someone. But why do they need to arrest someone? If they have little reliable proof, then why do they even advance the charge? In my mind, this suggests they have some sort of quota to meet. Is this true? I guess the crux of my question is: why do they advance a charge, with little reliable proof, without investigating further to find more reliable, concrete evidence? 

 

Umm. I'm tempted to just say "ask a cop" but that would be weak. Like everyone, the police have a job to do and they do it. Why do doctors treat both patients they know they can't save and also patients who probably didn't need to show up to the doctor's office at all but insist the doctor give them an exam anyway because they have a cough? Because it's their job.

 

I don't know that police actually have quotas or anything. But I know that police, like anyone in a system, are adverse to taking responsibility for potentially bad outcomes if there's any other options. So, to give you an idea of the life span of a shitty case, when police are investigating a crime and they only have a weak case against a suspect, and it doesn't look like it's getting any better, they will often charge them anyway. Then it lands on the desk of a Crown Attorney. Then the Crown proceeds, and if the client doesn't plead and the case continues eventually it ends up in a Judical Pre-Trial when you are both sitting down with a judge. Does the Crown know by now it's a shitty case? Probably. But the Crown doesn't want to just drop it either. Because what if the next thing that happens, your client goes crazy and ends up on the front page of the Sun. Does the Crown want to be the last person who dropped a case against him? Hell no. So now we're sitting in front of a judge. And the judge, who is usually fair-minded, says "this case sucks." Or, more realistically, "Mr. or Ms. Crown, you may wish to review this case for any reasonable prospect of conviction." At that point, the Crown says "yeah, this case sucks" (Crowns talk like that more than judges) and they probably drop it. Because now everyone has done their job and they can blame any subsequent bad outcomes on "the system."

 

Also, subtext to your question. But when you add "without investigating further to find more reliable, concrete evidence" you seem to be assuming that evidence is available. Don't get all CSI here. We live in the real world where you can't swarm every crime scene with forensic geniuses and their mobile science labs. Generally, the police (mostly) do their jobs, and sometimes there just isn't anything else. They think they have the right guy, but all they have is a shitty case with insufficient evidence against him. And that sets up the above.


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#21 msk2012

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Posted 06 March 2016 - 12:13 PM

I was wondering if you could please speak to how you get work. I know you've mentioned the way colleagues within your chambers help and that Hegdis has mentioned the importance of building a reputation for yourself but is there anything else (e.g. the yellow pages, a website, outreach, etc)? 



#22 PerniciousLaw

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Posted 06 March 2016 - 12:16 PM

No, that duty doesn't exist. Certainly not in the way you are phrasing it. You're an advocate, not an investigator.

 

And for whatever it's worth, the way I learned to approach this isn't to say "don't tell me if you're guilty" but rather "answer the questions I ask, and only the questions I ask."

 

 

Umm. I'm tempted to just say "ask a cop" but that would be weak. Like everyone, the police have a job to do and they do it. Why do doctors treat both patients they know they can't save and also patients who probably didn't need to show up to the doctor's office at all but insist the doctor give them an exam anyway because they have a cough? Because it's their job.

 

I don't know that police actually have quotas or anything. But I know that police, like anyone in a system, are adverse to taking responsibility for potentially bad outcomes if there's any other options. So, to give you an idea of the life span of a shitty case, when police are investigating a crime and they only have a weak case against a suspect, and it doesn't look like it's getting any better, they will often charge them anyway. Then it lands on the desk of a Crown Attorney. Then the Crown proceeds, and if the client doesn't plead and the case continues eventually it ends up in a Judical Pre-Trial when you are both sitting down with a judge. Does the Crown know by now it's a shitty case? Probably. But the Crown doesn't want to just drop it either. Because what if the next thing that happens, your client goes crazy and ends up on the front page of the Sun. Does the Crown want to be the last person who dropped a case against him? Hell no. So now we're sitting in front of a judge. And the judge, who is usually fair-minded, says "this case sucks." Or, more realistically, "Mr. or Ms. Crown, you may wish to review this case for any reasonable prospect of conviction." At that point, the Crown says "yeah, this case sucks" (Crowns talk like that more than judges) and they probably drop it. Because now everyone has done their job and they can blame any subsequent bad outcomes on "the system."

 

Also, subtext to your question. But when you add "without investigating further to find more reliable, concrete evidence" you seem to be assuming that evidence is available. Don't get all CSI here. We live in the real world where you can't swarm every crime scene with forensic geniuses and their mobile science labs. Generally, the police (mostly) do their jobs, and sometimes there just isn't anything else. They think they have the right guy, but all they have is a shitty case with insufficient evidence against him. And that sets up the above.

 

 

Really, really cool stuff.

 

You have, for now, answered all my questions. But I'm hoping this thread stays active so I can monitor it. 

 

Thanks a bunch :) 



#23 KennyPowers

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Posted 06 March 2016 - 12:40 PM

How do you deal with the negative aspects of the job? 

In particular the poverty, abuse and mental illness that accompanies your clients

 

How does the scope of the work differ from how it really is to what you expected before you got into it?


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#24 Jethro

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Posted 06 March 2016 - 01:23 PM

I'm a 3L who has considerable clinic experience with Legal Aid clients. My biggest complaint is that often it seems like I'm spending more time tracking down my clients who've moved, stopped paying their phone bills, stop showing up to remands, etc, instead of devoting efforts to their legal issues. In your experience, does this change when dealing with clients who are actually paying you?



#25 FunnyLawName

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Posted 06 March 2016 - 01:40 PM

In light of what KennyPowers asked above, given the population that is often represented in criminal issues, has there ever been a point where you've felt threatened or in danger? Maybe a particularly irate client wasn't happy with their outcome?