Diplock

Criminal Defence Lawyer in Sole Practice - Ask Me Anything

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I will answer the 2 latest questions from my perspective (not sure I qualify as a senior associate but I love the sound of that!)

 

In terms of taking clients, I am more with Hegdis than Diplock.  I don't agree with taking everybody, even at the very beginning of your career, and I never did that.  Especially when you are building your practice, you cannot afford to waste time with difficult clients. You also cannot afford to get into ethical trouble by taking a client who may pressure you to do things you shouldn't or taking on something you can't handle.   The first thing I consider is whether I am competent to handle their matter - and that will increase over time.  No way should a first year lawyer in sole practice without a senior lawyer in their firm be doing a murder trial, or a jury trial, or going to the court of appeal.  I am OK with jury trials and appeals now, but I wouldn't do a murder on my own.  They would have to retain me as the junior counsel for that.  

 

The next thing I consider with every client is how they are going to pay me: do they either qualify for legal aid or do they have the financial resources to pay my fee?  Unless I consciously decide I want the case pro bono, if you can't get legal aid but don't have the means to pay, then it's a no.  Now, there are some clients I would never take on legal aid but might consider with cash.  If they are going to be calling me all the time, that's fine, but I'll bill per call and if they can actually afford that, I might take them.  

 

Once the finances are worked out, then I am pretty much in agreement with Hegdis and all his reasons to not take clients.  I won't keep a client who is abusive to our staff.  Staff are far more important to keep happy.  I won't keep one who is abusive to me (given what I do, I have pretty good tolerance for the occasional expression of frustration, etc, but a course of disrespectful behaviour that cannot be managed is not happening.  I am also wary of the ones who have had lots of lawyers.  If their court date is next week and they don't want an adjournment, it's a no.  

 

In terms of people who fail at practice, obviously and thankfully and gratefully, I am not one of those (yet!), but I know a few.  Some managed to get jobs in government or with crown or legal aid offices in remote areas.  Some were taken on by other small firms or soles as associates.  Some went to do paralegal-type jobs. Most ended up OK at the end of the day after a period of stress and anxiety.

 

We definitely need to chat at some point. I'm really curious and when/how you started your own practice such that on day one, with presumably zero clients of your own, you felt sufficiently empowered to be choosy. Also, I'm not sure I have a clear idea of where you're sitting with your practice right now. I think I misrepresented you as being an associate in someone else's practice earlier.

 

Anyway, just a few replies. First, I certainly don't suggest that I will take (or anyone should take) clients who want them to do unethical things. I've honestly never had a client who flatly expected anything from me that isn't ethical. I've occasionally had to say "sorry, I can't do X, but we can do Y instead" but that's as far as that's ever been a problem. In terms of things beyond your competence, I also haven't had a client walk in with a murder charge either in the earlier going or to this day. That's an unusual problem to have, I think, for junior counsel. Though if it did happen, I'd say even junior counsel can probably stickhandle that client (if they really do want you) into a situation where you're working for that client alongside someone more senior who you pull into the mix. And that's true of anything else that might be beyond your current skills. A jury trial ... any hybrid offence (which is to say almost anything) can theoretically become a jury trial. I don't think junior counsel can be afraid of that. I get what you're saying in that if someone walks in with a jury trial starting next month you should turn it down (and there are SO many things wrong with that, it's an obvious problem waiting to happen) but you can't be afraid of a file that might end up with a jury trial. Going to trial is part of the job.

 

As far as legal aid is concerned, I would direct new soles to be very alert to who can qualify for legal aid (and who can't) and sometimes starting to help a client who hasn't even got legal aid yet (and telling them how to get it) is part of the way you build a practice. I know lawyers (who strike me as lazy) who's attitude towards legal aid is "I can't be bothered dealing with you yet - come back when you have a certificate in hand." But I guess their laziness is the privilege they want to claim by being established. If you want to compete with their practice, which IS established whereas yours isn't, you need an edge. That edge is taking the client even before legal aid is clarified. It's all you've got.

 

I could go on. But obvious providence and I have started at different points and in different ways. I'll definitely be interested in knowing more about that at some point, even if offline.

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I'd acknowledge that realistically, just about every junior lawyer takes on a client that they'll later come to regret, but I'd draw a distinction between being "choosy" and ignoring that gut instinct to steer clear of a bad client or case well beyond one's competence. The latter is work that can wind you up in trouble -- unpaid bills and involuntary pro bono at best, law society complaints at worst. Apart from experience, I don't think winding up saddled with an unpaid trial is good for anyone, even those starting out.

 

I'd echo providence's approach, even for those starting out. (1) Am I competent? (2) How do you propose to pay?  As a junior lawyer, especially operating solo, your main advantage would be on cost. (Note: My province operates on a staff model of Legal Aid, and the cutoffs appear to me to be ridiculously low. I get calls from people who truly couldn't afford private counsel at regular rates, but had been rejected from Legal Aid. Young solos could make decent money and afford to be picky in such circumstances.)

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Just curious.. Let's say you are in a trial and make an objection to something you did not foresee the other side bringing up.. And as a result the crown or judge request authority.. How would this work when the defence does not have a copy of the case or statute.. Is defence counsel supposed to prepare for trial by just printing a bunch of case law for if and when it would come up? (For example, with an objection against the rule of oath helping - are defence counsel expected to just have a case lying around in their bag for this?)...

Edited by PS89
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Just curious.. Let's say you are in a trial and make an objection to something you did not foresee the other side bringing up.. And as a result the crown or judge request authority.. How would this work when the defence does not have a copy of the case or statute.. Is defence counsel supposed to prepare for trial by just printing a bunch of case law for if and when it would come up? (For example, with an objection against the rule of oath helping - are defence counsel expected to just have a case lying around in their bag for this?)...

 

Adjournment if it's a serious issue requiring submissions. But know the rules of evidence and examination so that you don't get blindsided by procedural points, since you won't get an adjournment to educate yourself on the rule against oath helping.

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Sorry, meant in regards to the physical (like a printout of the actual case or legislation when you refer to it)

Edited by PS89

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Sorry, meant in regards to the physical (like a printout of the actual case or legislation when you refer to it)

 

Judges wouldn't usually ask for this, since they tend to be experts in type of objections and the laws governing each. But if a judge requires it, she obviously knows you haven't got your Quicklaw account segued up to a printer under those robes, so you get an adjournment (usually to lunch or to next morning, depending).

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Judges wouldn't usually ask for this, since they tend to be experts in type of objections and the laws governing each. But if a judge requires it, she obviously knows you haven't got your Quicklaw account segued up to a printer under those robes, so you get an adjournment (usually to lunch or to next morning, depending).

 

Yeah, this. Generally speaking, if you intend to raise some legal argument that is non-standard you should come prepared with whatever authority you can offer to back it up. If you're making what you consider to be a relatively non-controversial point and it somehow becomes an issue and you're required to substantiate it ... you ask for a short adjournment and you scramble. Again, CLA (Criminal Lawyers' Association) listserv to the rescue. It's a fairly regular occurrence to see a post that runs exactly thus. "Help! I'm in a trail and the judge has asked for a case that proves X and I need it within the next hour!" And you'd be amazed how frequently that does get answered. The defence bar is very tight that way - and we all need it sooner or later.

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We definitely need to chat at some point. I'm really curious and when/how you started your own practice such that on day one, with presumably zero clients of your own, you felt sufficiently empowered to be choosy. Also, I'm not sure I have a clear idea of where you're sitting with your practice right now. I think I misrepresented you as being an associate in someone else's practice earlier.

 

Anyway, just a few replies. First, I certainly don't suggest that I will take (or anyone should take) clients who want them to do unethical things. I've honestly never had a client who flatly expected anything from me that isn't ethical. I've occasionally had to say "sorry, I can't do X, but we can do Y instead" but that's as far as that's ever been a problem. In terms of things beyond your competence, I also haven't had a client walk in with a murder charge either in the earlier going or to this day. That's an unusual problem to have, I think, for junior counsel. Though if it did happen, I'd say even junior counsel can probably stickhandle that client (if they really do want you) into a situation where you're working for that client alongside someone more senior who you pull into the mix. And that's true of anything else that might be beyond your current skills. A jury trial ... any hybrid offence (which is to say almost anything) can theoretically become a jury trial. I don't think junior counsel can be afraid of that. I get what you're saying in that if someone walks in with a jury trial starting next month you should turn it down (and there are SO many things wrong with that, it's an obvious problem waiting to happen) but you can't be afraid of a file that might end up with a jury trial. Going to trial is part of the job.

 

As far as legal aid is concerned, I would direct new soles to be very alert to who can qualify for legal aid (and who can't) and sometimes starting to help a client who hasn't even got legal aid yet (and telling them how to get it) is part of the way you build a practice. I know lawyers (who strike me as lazy) who's attitude towards legal aid is "I can't be bothered dealing with you yet - come back when you have a certificate in hand." But I guess their laziness is the privilege they want to claim by being established. If you want to compete with their practice, which IS established whereas yours isn't, you need an edge. That edge is taking the client even before legal aid is clarified. It's all you've got.

 

I could go on. But obvious providence and I have started at different points and in different ways. I'll definitely be interested in knowing more about that at some point, even if offline.

 

I wouldn't say that I felt sufficiently empowered to be choosy, but that I knew that certain clients spelled trouble and the trouble would cost me more than the small amount of fees I could get from them and those fees would not offset that.  I would say it`s business smart rather than choosy.  At the beginning of practice there is lots of work to do getting set up etc. and I would rather not waste it with clients that bring trouble.  Eager to start a practice doesn't have to mean desperate.  If I had to spend 2 hours a day on the phone for a legal aid client who is pleading out on minor charges, that's time I couldn't spend hustling elsewhere or setting up software or reading up on case law or observing senior counsel or whatever else, and at the end of the day, the payout wouldn't be enough to justify those other things.  If they could pay me 10 or 20K for that, I might have a different answer, but those clients rarely can.  I would add that it's not all that often that my gut tells me not to take someone, and I do take most clients, and always did, but yes, there are some you need to steer clear of and the amount of years you are in practice doesn't, in my opinion, change that.

 

I am not an associate in someone else`s practice.  A group of us have a practice together.  I guess technically we`re partners (?) but I never call myself that.  We're a firm and we're all equal although some are more senior in years of call and I will defer to their experience when necessary.

 

Going to trial is part of the job, but I maintain that a jury trial for a sole, newly called lawyer with no senior counsel in their firm, is an ethical disaster waiting to happen for all but maybe the odd exceptional person.  A jury trial is a whole different animal and you need that experience and experienced counsel to bounce things off before you undertake one.  I understand that there are a lot of offences that theoretically could be jury trials and if you turn them all down, you'll starve, but you should be able to get a good sense from the client of whether they are likely to elect jury or whether they want to plead out, or have a judge-alone trial.  (And I would add that I'm not sure a brand-new sole is in the best position to even advise a client of the wisdom of those options, not knowing the judges etc.  This is why I didn't go out solo.)  I wasn't talking of ethics in the sense of clients wanting you to do unethical things, but ethics in the context of not being competent to properly advise or represent clients.

 

Obviously, I didn't mean that clients need to show up with their legal aid certificates in hand.  I agree that figuring out if they qualify and helping them do the paperwork is part of that first meeting and I do that all the time.  I meant that I will fill out the application with them and have further discussions with the agreement that if legal aid does refuse them for some reason, I wouldn't be their lawyer unless they could pay me.  I meant that that first screening meeting includes a discussion of finances, and if they're relying on legal aid, great, let's get that started and if it all goes through, I'm happy to represent them.

Edited by providence

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Just curious.. Let's say you are in a trial and make an objection to something you did not foresee the other side bringing up.. And as a result the crown or judge request authority.. How would this work when the defence does not have a copy of the case or statute.. Is defence counsel supposed to prepare for trial by just printing a bunch of case law for if and when it would come up? (For example, with an objection against the rule of oath helping - are defence counsel expected to just have a case lying around in their bag for this?)...

 

Nothing wrong in asking for a brief adjournment so you can run to the library or office to look it up, try to pull something up on your phone, call senior counsel or grab them in the hallway, etc.  For anticipated objections you should come prepared and you should generally know the law re: hearsay, oath helping etc, but no judge I've ever seen has an objection to you asking for a moment to check something.

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Going to trial is part of the job, but I maintain that a jury trial for a sole, newly called lawyer with no senior counsel in their firm, is an ethical disaster waiting to happen for all but maybe the odd exceptional person.  A jury trial is a whole different animal and you need that experience and experienced counsel to bounce things off before you undertake one.  I understand that there are a lot of offences that theoretically could be jury trials and if you turn them all down, you'll starve, but you should be able to get a good sense from the client of whether they are likely to elect jury or whether they want to plead out, or have a judge-alone trial.  (And I would add that I'm not sure a brand-new sole is in the best position to even advise a client of the wisdom of those options, not knowing the judges etc.  This is why I didn't go out solo.)  I wasn't talking of ethics in the sense of clients wanting you to do unethical things, but ethics in the context of not being competent to properly advise or represent clients.

 

You've reminded me of this old thread where I was wondering about the same thing: http://lawstudents.ca/forums/topic/27107-in-over-your-head/

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Sorry, meant in regards to the physical (like a printout of the actual case or legislation when you refer to it)

 

I find that with all the online caselaw that is available it is usually enough to simply give the judge the citation.  If they're curious they'll also take a break and either call it up themselves, or get someone to find them a copy of the case.

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get someone to find them a copy of the case.

 

Clerks live for this shit.

 

 

*phone rings*

It's a judge's assistant. The judge needs a case pronto and you are just the guy/gal to get it.

 

You find the case! After getting lost you figure out how to get into the back part of the court room. You hand deliver the case!

 

You get shushed for speaking too loudly (thin doors, counsel can hear what goes on in the little room).

 

You are a vital cog in the justice machine!

Edited by kurrika
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Clerks live for this shit.

 

 

*phone rings*

It's a judge's assistant. The judge needs a case pronto and you are just the guy/gal to get it.

 

You find the case! After getting lost you figure out how to get into the back part of the court room. You hand deliver the case!

 

You get shushed for speaking too loudly (thin doors, counsel can hear what goes on in the little room).

 

You are a vital cog in the justice machine!

Oh I didn't know we were doing another CYOA..

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Oh I didn't know we were doing another CYOA..

That's.... kinda the whole story of being a clerk (at least a tax court clerk). If tax cases get you excited, you'll love it. If they don't, you are in for a boring year.

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That's.... kinda the whole story of being a clerk (at least a tax court clerk). If tax cases get you excited, you'll love it. If they don't, you are in for a boring year.

Apparently we are doing a very short CYOA then...

 

Page 2!

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Page 2: The adventure continues

 

 

You stumble into work at 7:55 am. Your head is pounding like a drum. Why exactly did you go drinking last night? What exactly did you drink last night? None of the other clerks are in. They don't have children that wake up at 6 am.

 

The Act lies open on your desk, pink highlighter staining the onion skin paper. A scribbled note beside it reads "judge wants complete rundown on this provision".

 

Do you:

 

A) let the soothing words of the Act wash over you? The first rule of tax club is read the Act. The second rule of tax club is also read the Act.

 

B) head upstairs to the library? Let's get historical on this bitch.

 

C) fire up tax net pro? May as well note it up.

Edited by kurrika
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...

Going to trial is part of the job, but I maintain that a jury trial for a sole, newly called lawyer with no senior counsel in their firm, is an ethical disaster waiting to happen for all but maybe the odd exceptional person.  A jury trial is a whole different animal and you need that experience and experienced counsel to bounce things off before you undertake one.  I understand that there are a lot of offences that theoretically could be jury trials and if you turn them all down, you'll starve, but you should be able to get a good sense from the client of whether they are likely to elect jury or whether they want to plead out, or have a judge-alone trial.  (And I would add that I'm not sure a brand-new sole is in the best position to even advise a client of the wisdom of those options, not knowing the judges etc.  This is why I didn't go out solo.)  I wasn't talking of ethics in the sense of clients wanting you to do unethical things, but ethics in the context of not being competent to properly advise or represent clients.

...

[portion only quoted]

 

 

You've reminded me of this old thread where I was wondering about the same thing: http://lawstudents.ca/forums/topic/27107-in-over-your-head/

 

As a civil litigator (so I'll be briefer than is my wont in this thread since it's someone else's sandbox...), I can only think of two occasions when a party requested a jury trial that I would have conducted - and of course in a way it was too bad that they settled, because no jury trial for me...  :evil:

 

I found this US lawyer's brief discussion of the Ghomeshi case and anecdote about the well-known rule of thumb (even I've heard of it) about when a bench trial is desirable, amusing:

 

"...The typical rule of thumb is that if the defense theory depends on the facts of a case (say, an alibi or an eyewitness), a jury is better. If the defense turns on an interpretation of the law, a bench trial is better. The reasoning is pretty straightforward: if an acquittal depends upon the jury believing an alibi witness, the defense only has to convince 1 out of 12 jurors to prevent a conviction. On the other hand, if the defense is making a novel or counter-intuitive argument that is nevertheless legally correct, the judge as a trained lawyer is more likely to understand and be sympathetic to such an argument. For example, take this obscure case from Missouri, in which the defendant (ably advised by his dashing and valiant trial attorney[1]) waived a jury in order to argue to a judge that since the defendant had not behaved in a threatening manner while demanding money from a bank teller, the wording of the robbery statute meant that the defendant was not guilty of robbery but rather the lesser offense of stealing. His brilliant appellate counsel[2] convinced the Missouri Court of Appeals to reverse the conviction, but was overruled in a split decision by the Missouri Supreme Court. That’s not an argument you can make to a jury…even folks you might assume that would be sympathetic, such as the trial counsel’s family, tended to roll their eyes at that one...." [emphasis added]

 

http://mimesislaw.com/fault-lines/bench-v-jury-the-ghomeshi-trial/8150

 

EDIT: link

Edited by epeeist
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As a civil litigator (so I'll be briefer than is my wont in this thread since it's someone else's sandbox...), I can only think of two occasions when a party requested a jury trial that I would have conducted - and of course in a way it was too bad that they settled, because no jury trial for me...  :evil:

 

I found this US lawyer's brief discussion of the Ghomeshi case and anecdote about the well-known rule of thumb (even I've heard of it) about when a bench trial is desirable, amusing:

 

"...The typical rule of thumb is that if the defense theory depends on the facts of a case (say, an alibi or an eyewitness), a jury is better. If the defense turns on an interpretation of the law, a bench trial is better. The reasoning is pretty straightforward: if an acquittal depends upon the jury believing an alibi witness, the defense only has to convince 1 out of 12 jurors to prevent a conviction. On the other hand, if the defense is making a novel or counter-intuitive argument that is nevertheless legally correct, the judge as a trained lawyer is more likely to understand and be sympathetic to such an argument. For example, take this obscure case from Missouri, in which the defendant (ably advised by his dashing and valiant trial attorney[1]) waived a jury in order to argue to a judge that since the defendant had not behaved in a threatening manner while demanding money from a bank teller, the wording of the robbery statute meant that the defendant was not guilty of robbery but rather the lesser offense of stealing. His brilliant appellate counsel[2] convinced the Missouri Court of Appeals to reverse the conviction, but was overruled in a split decision by the Missouri Supreme Court. That’s not an argument you can make to a jury…even folks you might assume that would be sympathetic, such as the trial counsel’s family, tended to roll their eyes at that one...." [emphasis added]

 

http://mimesislaw.com/fault-lines/bench-v-jury-the-ghomeshi-trial/8150

 

EDIT: link

 

I would generally agree with that, but then there are cases of mixed fact and law where it will depend - ie. for self-defence, is the explanation one more likely to appeal to "regular" people, in conjunction with the law?  And there are the intangibles of putting a person in front of the jury - what do they look like, what race are they etc?  I might have a great factual defence for my Black guy with a gun but it may not be smart to put him in front of a jury.  Does my client need to testify to establish the defence and how will they do?  Or do they need to shut up and will the jury look badly at their silence?

 

One senior counsel once told me that they find that the jury usually makes the right decision for the wrong reasons.  I've found that to be generally true.

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Page 2: The adventure continues

 

 

You stumble into work at 7:55 am. Your head is pounding like a drum. Why exactly did you go drinking last night? What exactly did you drink last night? None of the other clerks are in. They don't have children that wake up at 6 am.

 

The Act lies open on your desk, pink highlighter staining the onion skin paper. A scribbled note beside it reads "judge wants complete rundown on this provision".

 

Do you:

 

A) let the soothing words of the Act wash over you? The first rule of tax club is read the Act. The second rule of tax club is also read the Act.

 

B) head upstairs to the library? Let's get historical on this bitch.

 

C) fire up tax net pro? May as well note it up.

 

I kind of wanted to clerk at tax court.... I would have picked A, of course.

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