Diplock

Criminal Defence Lawyer in Sole Practice - Ask Me Anything

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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)? 

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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 :) 

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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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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?

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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?

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

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

 

People deal differently. I don't want to claim I've got the answer, because I really don't, but I have a really strong "not my problem" field. Always have. I love helping people with their problems. I love the sense of importance (in both positive and probably negative ways) that comes along with doing something very meaningful for my clients. I take great pride in doing my job well and it would bother the shit out of me if I failed at that, which absolutely does mean going that extra mile at times for clients who are in messed up situations. But at the end of all that, after I've done the best job I can for my fucked-up, drug addicted client ... you just release them into the wild again and the odds are very strong they'll get in trouble again.

 

I know some people find it very difficult to draw a line. You want to really help. You may be tempted to give them money, emotional support, try to solve their underlying problems ... you just can't. You start doing that and it's an endless pit of need. I do keep a few numbers handy for referrals. That is, I try to make sure that my clients have somewhere to go where there are professionals to help them properly. If they go, great. If not, I can't be responsible.

 

I'll add two points, which give me some comfort. First, even people whose lives seem to be terminally fucked up may one day turn a corner. It's hard to see it in the moment, but then sometimes you see people in their 50's and 60's who had that life and who straightened out eventually. You can't force it, but you can hope for it, and try to help your clients minimize the damage they do to themselves in the meanwhile. Second, you can at least treat your clients respectfully and take them seriously rather than processing them like cattle. These are people who have a lot of contact with agencies and professionals of various sorts. Giving them good and respectful service goes a long way. It's not just the right thing to do, but it's healthy for them.

 

Further to the above. Clients with persistent problems (addiction, mental health, poverty, etc.) who are caught up in the criminal justice system tend to string along on all kinds of repeating, minor charges. I hate to say it, but they are the best clients to build a practice on in the early going. You'll never get a big murder trial there, but they keep coming back and coming back and coming back and they never go away for long because their charges are minor. Treating them well isn't only the right thing to do, but a great business practice. They'll come back to you simply for that alone, even if all you can do is plead them guilty again because they were caught red-handed (again).

 

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

 

This almost sounds smarmy, but it really is almost exactly what I expected. I suppose I could say there's more pleading than I expected and fewer trials. I suppose I'm surprised at home much time I spend as an administrator rather than a lawyer. But in real terms, it's what I expected. Because for me, the work is mainly about who I serve and how I interact with them. The law sometimes surprises me, but the law is just a tool. The work is with the people. And the people are who I expected, because I knew those kinds of people already. I think I went in pretty well with my eyes open.

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To what extent would you agree or disagree with the following statement:

 

Crowns who excel are motivated by putting away crooks and outsmarting defence lawyers. 

 

Defence lawyers at the top of their game, on the other hand, are motivated by opportunities to outsmart and outmaneuver very intelligent Crowns by manipulating the system.  

 

Or, if you would prefer an open-ended and less reductive and cynical question:

 

What motivates you and your fellow criminal lawyers?  

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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?

 

Well, first, one clarification. When you start a new practice, and really for many lawyers this is always true, you'll rely significantly on legal aid files to support yourself. Clients who are actually paying you with their own money are in high demand, and they can afford to be choosy. For those clients, you're competing with experienced and high profile lawyers. You won't have many cash clients to start. I'd say at most they are 20% of my practice at present.

 

Side note. I once heard that about 50% of all files in the criminal justice system proceed on legal aid. I don't know if that's true, but it wouldn't surprise me. It's very hard to qualify for legal aid on the surface (you basically have to be unemployed) but poverty is such a driver of crime that it's believable. Of the remaining 50%, some don't hire lawyers at all either because they can't afford to or choose not to. So I'd say at most maybe 30% of the total pie out there (in terms of caseload) are private, cash clients. Keep that in mind when you think about how many of them you're likely to get, while in competition with established lawyers.

 

Anyway, my clients tend to stay in touch. I don't have much trouble there. Though I always do take careful notes when I open a file and get alternative contact points where possible. I don't represent the sketchiest of the sketch, and I have one colleague who I know has more trouble with this stuff. I tend towards a slightly more sophisticated, though still broke-ass client base. I suspect your experiences at a legal aid clinic are coloured by the fact that you're really getting the dregs (in a non-pejorative sense) who can't even get their acts together enough to get their own legal aid lawyers. The most they can manage is wandering into a clinic. It does get a lot better than that. But your experiences in maintaining contact (and understanding the chaos it causes when you "lose" a client) will be valuable in setting up a future practice properly.

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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?

 

No. Never.

 

I can't claim it's impossible or that it never happens, but I haven't encountered it yet. It helps a lot to be a guy, I'm sure. It's got to be tougher on women here. But it helps a lot to remember that you're a good guy, in criminal(ly accused) terms. You can have a lot of fun with that sometimes, just as long as you don't slide into making friends with your clients. You get to be on the inside of a lot of strange shit. It affects the way you see the world, and you learn to love it. An interesting example right now is marijuana, because it's still illegal and people are still getting charges and retaining lawyers, but it's barely illegal anymore by any real social standard. So I get to be a VIP at various marijuana lounges around the city. These are good people. They're just advocates and entrepreneurs, at heart.

 

For the rest, I guess if you're defending a genuine psychopath then becoming part of this dude's life at all is dangerous, on any terms. But for the other 99.5% of the clients out there, they are just people. And some of them are capable of violence under the wrong circumstances, yes, but then so are many MMA fighters. Asking a criminal defence lawyer if they feel unsafe around their clients is like asking a MMA trainer if they feel unsafe. Really, no. I'd feel unsafe around some of my clients if I was the reason their lives sucked. But I'm not. I'm the guy who is trying to help them.

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To what extent would you agree or disagree with the following statement:

 

Crowns who excel are motivated by putting away crooks and outsmarting defence lawyers. 

 

Defence lawyers at the top of their game, on the other hand, are motivated by opportunities to outsmart and outmaneuver very intelligent Crowns by manipulating the system.  

 

Or, if you would prefer an open-ended and less reductive and cynical question:

 

What motivates you and your fellow criminal lawyers?  

 

I don't think there's a general answer. Defence (and Crowns) are motivated by different things. It's definitely true that some of the mix is simply a desire to win. That's probably true for every litigator of every stripe. You have to want to win. But there's almost always more to it, also, and that gets more individual.

 

For myself, I'm motivated mainly by a desire to (a) limit the damage done to my clients' lives by a system that's trying to convict them and send them to jail, and (b) feel that my work and my life is important, due to (a). I've mentioned that second part already. It's not necessarily a fully admirable instinct, but I recognize it as motivating. I'm the guy who wants the ball. I want to call the play. I want to win or lose based on my decision (mainly, to win) and to know that what I did made the difference. And of course if you want the ball, you damn well better know what to do with it when you have it. That's why I'm motivated to do the job well.

 

But also, to follow up on (a) and the ways in which I really do believe I belong to an admirable profession ... a large number of my clients have actually broken the law either in and around what they are charged with or at other times. Their legal problems are directly relateable back to bad decisions they have made. No question about that. Then again, a large number of all people have actually broken the law at various times and almost everyone makes poor decisions. What we're talking about now is how severe the consequences should be. And I truly, truly believe that too many consequences in our criminal justice system are excessive, punitive, and serve no purpose whatsoever save to help everyone believe we are "tough on crime" and to serve political agendas (mainly Conservative, though not exclusively so) that have the same end. I believe we could let 95% of the people currently in jail out, tomorrow, and we wouldn't see a significant spike in violent crime.

 

Most of what I do (most of what any defence lawyer does) isn't turning guilt into innocence. It's turning a bad consequence into a less bad consequence. And I'm always motivated by that. I believe in second chances. I believe in third chances. I believe in fourteenth chances. What's the alternative? Take a human being and say "sorry, your life is officially a fail - we're going to warehouse you in a prison until you die." Is that appropriate when someone rapes and murders a child? YES. (Depending on facts and the full case). But as I said, that's a small minority of all cases. That's the 5%. The other 95% all we've really got is "you've fucked up a lot, but we need to figure out what to do with you now." And I'm always ready to argue for the lesser consequence whenever I can.

 

That's what motivates me, anyway.

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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)? 

 

I've waited on this because it's the money question, literally. And it's honestly the best and number one question you should ask before starting a practice. Where am I going to get clients?

 

I can only speak to my own experiences. I know some lawyers advertise either online or in more traditional media. I never have. I know lawyers use referral services. I tried the LSUC referral and found it only generated low quality contacts. I left it recently. I don't use other referral services. I have a website but I don't try to drive traffic there. It's more to serve as a secondary check (so if someone hears of me, and looks me up online, I'm legit) and simply because everyone has a website. For what it costs, if it generates a client every five years it's worth it. Otherwise, I don't bother.

 

Here's basically where I get work:

 

1. Agency work from other lawyers, to start. May translate into leads and other work. If you work on a file for another lawyer it's absolutely their client, and you would never take that client for future work unless the client absolutely insisted on leaving the original lawyer. Even then, it would be dicey. But if you serve someone well they may refer other people to you in the future. And I've had good work referred by clients of others lawyers I served well.

 

2. Referrals and more work from my own existing clients. Notice a trend here? Referrals are absolutely key. Reputation is everything. And people who get into trouble with the law typically know other people who get into trouble with the law. This is how you build a self-sustaining practice.

 

3. Picking up clients in courthouses. This needs a full explanation.

 

Lawyers differ widely about the propriety of approaching people in a courthouse. Some are absolute sharks and show up at weekend bail court and basically set up shop hoping to score a client. Other lawyers will say it's absolutely off the table to even talk with someone other than your client at a court. I reject both extremes. I say that when you're in court already, you often waste a lot of time sitting around. It's fine to be helpful. When you see someone who looks confused as hell, asking if they know where they are going is not unreasonable. Most of the time, they are grateful that someone in a suit is paying attention to them. Then you help. Point them to the clerk's office, help them find the right court, tell them what's going on with their kid who is coming up for bail, etc. This conversation can easily lead to a new client, if done properly, and you never have to say "hey, use me as your lawyer." Generally speaking, if you are there and helpful, they'll ask for your card.

 

Now, several very important caveats. Never be desperate about this. It's just sad. Our profession does need to preserve some dignity. Some courthouses have strict rules about solicitation for exactly this reason. I've never, ever had anyone complain. But when I say you can be helpful when you're there I mean I might talk with one or two people while I'm in court on other matters. Never more. I don't wander the halls handing out cards. If you try that, you might attract the kind of reputation you don't want. Also, most importantly, never ever solicit a client who already has a lawyer. As soon as someone mentions they are even in contact with another lawyer they wish to use, that's it. You can still help them find whatever in the building, but then you just say "it sounds like you're well served, and X is a great lawyer" and leave it at that. Even if you've never heard of X. You never ever solicit another lawyer's client. It's a huge professional issue if you do. We could talk another time about how you manage it if a client who is represented by another lawyer simply says "I don't want them anymore, I want you." But you never ever initiate that conversation.

 

I want to admit here that I'm an anomaly. I know lawyers who have struggled with gaining a reasonable amount of work for themselves. But I find it very easy to pick up clients. It really is about being genuinely helpful, looking and feeling absolutely confident in what you know (even if you aren't fully confident) and in putting yourself out there. People need lawyers. And when they have legal aid, they are going to get a lawyer. If you're the only lawyer they've interacted with, and they are left with the impression that you really know your shit and they feel comfortable around you - why wouldn't they call you? So that's where it starts, a lot of the time, and it feeds into that cycle mentioned above. Then you get the referrals, the recommendations, and the repeat business. Always assuming you are good, of course.

 

Three additional notes.

 

First, the above works well for the legal aid base you'll start with. I don't know how well it works for cash clients. My instinct says much less well. People who pay well are people who generally don't have regular contact with the law. So you won't reach them through referral. Maybe advertising matters more here. I'll let you know if I ever crack this one, because I really haven't yet.

 

Second, part of serving your clients well means going that extra mile. You almost need to be able to answer the phone 24/7. You can't be that lawyer who is so in demand that you return calls on your own schedule. Maybe one day. For now, to start, you're the lawyer who hustles like hell to make your clients feel served. Then they remember you when their friend gets in trouble.

 

Third, getting that agency work from other lawyers can be from those in chambers but can also come from other sources. The Criminal Lawyers' Association (CLA) in Ontario is fantastic. Anyone (students included) who is working in this area should join. They have a great listserv where people sometimes do ask for help and are frequently willing to pay for it. Again, it's $50 here and $60 there. Not big money, but it gets you in court and gets your name out there. You need to be willing to do anything, anywhere and on short notice. Or at least as much as possible. Jump on those opportunities fast, because they won't always be there when you want them and it's most convenient for you. But they will be there.

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This is cool, thanks for doing it. 

As a sole criminal practitioner, do you ever feel in over your head? What do you do / where do you turn, if you've taken a file that feels beyond your ability to solve? Or if you're struggling with running your business? Or any number of other things that I can imagine freaking out over?

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As a sole criminal practitioner, do you ever feel in over your head? What do you do / where do you turn, if you've taken a file that feels beyond your ability to solve? Or if you're struggling with running your business? Or any number of other things that I can imagine freaking out over?

 

I constantly feel in over my head. I'd say I feel that way about 50% of the time now - down from around 95% of the time when I started. I'm assured that within the next ten years it will steadily decline to a low of around 20%. That will feel nice, I'm sure.

 

When you've got a file that requires work you don't know how to do, you learn. That's what lawyers do a lot of the time - we learn for a living. Sometimes you do need to know enough not to take something. If you screw up and take something you shouldn't be doing at all, you may find yourself needing to ask for substantial help in doing the work - which may cost you anything up to and including not making a dime on the file while you have someone else handle it and carry a share of the headaches and liability just because it's still "your" client. That's an extreme, but I have been there.

 

When it's about running your business, it's harder to get help. I've relied very little on advice and assistance here. Maybe I take it to an unhealthy extreme, sometimes. The Law Society puts out helpful material to guide you in all of your obligations and responsibilities. And if you follow this advice closely, you'll have absolutely no time left to be a lawyer and you'll end up suicidal. Practically speaking, you need to find your own way to manage things. I'm sure colleagues have tips here, but I haven't followed them a lot. Though note - the CLA listserv (mentioned above) has been gold, and when it's just specific questions (like how to set up a number so clients can call you from jail) it's an incredible resource.

 

Honestly, there are all kinds of administrative issues you can freak out over. The list is nearly endless. But you just learn, and figure it out, and know better for next time. Criminal defence lawyers are incredibly generous with time and advice to colleagues, perhaps because we recognize we have no one else but one another. Personally speaking, I try to make a point of spreading out my stupid questions so I'm not leaning too much on any one person. But other than that, the surest way to solve your dumb problems is to ask for help.

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Any must(should) have books for ones office ?

 

Copy of the Criminal Code that isn't hopelessly out of date. There's nothing else that's a "must" have. The other nice thing about being in chambers with other lawyers is they generally have books you can borrow. My own collection hasn't expanded yet, and buying current texts can become a serious source of overhead. More than anything you need to limit your overhead to make practice work in the early stages, so buying books (which will inevitably lose their value in a couple of years anyway) isn't a priority. After that, I'd say a good Evidence text, and a Criminal Procedure guide. Those are what I reach for most often. But again, totally optional to start.

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I suppose any main concern I have with criminal law defense would be getting clients, and you've touched on this already of course. But mainly, how difficult is it to "make it" where you don't have an unreasonable worry about finding a source of income the next day? Where you don't worry about not having enough revenue to cover even minimalist overhead? Where you can expect to make, at the minimum, a modest lawyer's income of 55-70 grand a year?

 

The main thing turning me off from defense of criminal is just that - worrying about my ability to make a decent living off something that seems (at this point being an infantile view of it) interesting without working crown where you're given clients and a practically guaranteed salary. So for example, would you have a rough ball park of how many defense lawyers struggle immensely starting out in finding sources of revenue? A ball park of how many just don't make it and leave it because of the lack of cash inflow? 

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What was your starting capital/loan requirements? Obviously the goal is to keep overhead low, but there still must be startup costs to getting your sole practice up and running. 

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Thanks Diplock! Interesting read so far.

 

My questions are as follows:

 

Could or would you supplement your criminal work with other work? (what stops you from being a sole doing family, crim, and say small commercial) If not, what prevents you from doing so?

 

Do you refer out a lot of work that isn't criminal? If so, then how do you determine who you send it to?

 

What would it take to get you back into a firm instead of working for yourself? 

 

How heavily do you rely on your network that you built in law school as compared to the network that you built after law school?

 

 

I mostly ask because criminal law seems like a great area of practice, but I don't think that I could ever do it as the only area of law that I perform in. I wonder what it would look like to be in a solo or small operation doing a mix of practice rather than acting as a specialist.

 

For background info, I work at a two-lawyer firm now doing paralegal/legal assistant work and I'm not sure that the firm will be available or able to hire me for articles, or even that I want to end up in this sort of environment. I like the idea of doing a mix of practice because well, variety is always nice, but I wonder how much of a lawyer's practice is flexible enough to accommodate doing different areas of practice as well as criminal work as I tend to see so many criminal-only lawyers.

 

Perhaps if you gave a rough breakdown of what it looks like to take a file on to closing a file in terms of hours spent at each stage and what the difficulty or frustration is with moving the file forward at each point in the process? 

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There are plenty of lawyers that have more broad-based practices. At one point I was with a small-town firm and running a general litigation practice - lots of family, side of criminal, a handful of civil lit as well (mostly in small claims).

 

The problem with being a generalist is that there's an awful lot of law out there to try and know and master. Sometimes I find it quite a challenge just to stay up on the latest crim developments. If i had to also follow up on all those other areas... I don't know I'd be able to do it.

 

Criminal law doesn't necessarily mesh well with other practice areas. The timelines are completely different. A criminal file will likely be concluded within a year, whereas a civil lit file may take several years, and your family motion needs to be in court immediately. And your nice corporate clients don't really want to sit in the same waiting room as your sketchy criminal clients.

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There are plenty of lawyers that have more broad-based practices. At one point I was with a small-town firm and running a general litigation practice - lots of family, side of criminal, a handful of civil lit as well (mostly in small claims).

 

Bit of a detour from the original thread, but I can see myself doing small firm work for several years after graduation then trying to move to prosecution work. How feasible would a transition like this be? And did you find much of a difference in the number of hours you put in/how those hours were spread out?

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