Diplock

Criminal Defence Lawyer in Sole Practice - Ask Me Anything

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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?

It could work, but if you want to do prosecutions, why not try to move straight into prosecutions?

 

I've definitely found a difference in the hours I work, but I think that may mostly be due to getting older, more experienced and efficient rather than a declining work load.

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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.

 

 

I hate to jump in on Diplock's Q&A (which I am finding most informative, actually), but I do a generalist mix of work, including criminal. You'd starve in a small town doing only criminal, and the corollary is that locals need criminal defence as well, so you have to be adaptable. Mind you, virtually all of the crim stuff I do is one of three offences: DUI, assault or drug possession. The key is to knowing when something is above your pay grade and when to walk away from it.

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Hey Diplock, 

 

Sorry, but I'm back. 

 

Firstly, have you ever found it emotionally difficult to represent an accused? I imagine defending some petty charge wouldn't be emotionally difficult, but have you ever done a murder trial? If so, what feelings were you experiencing? Do you become more immune to these emotions as time passes? 

 

Secondly, do you feel that you are, from non-lawyers/non-anyone-that-is-a-legal-actor, negatively judged on the basis of 'representing an accused'? 

 

Thanks! 

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Hey Diplock,

 

Sorry, but I'm back.

 

Firstly, have you ever found it emotionally difficult to represent an accused? I imagine defending some petty charge wouldn't be emotionally difficult, but have you ever done a murder trial? If so, what feelings were you experiencing? Do you become more immune to these emotions as time passes?

 

Secondly, do you feel that you are, from non-lawyers/non-anyone-that-is-a-legal-actor, negatively judged on the basis of 'representing an accused'?

 

Thanks!

+1. Was interested in finding out the answer to this as well.

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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.

 

Experience in court today reminded me to expand on my original answer here with an additional note regarding mental health. When an accused has mental health problems, I find this is as close as Crowns and Defence ever get in terms of sharing concerns for both the best outcome for the accused and for the protection of society. I really don't want to let someone out on the street who is out of control and off his meds. It isn't good for society (obviously) and it's no good for the client either. Regardless of his instructions (coherent or otherwise) in the moment, I know it's bad for him if he gets out and does something serious and unfixable. And Crowns, generally, appreciate that mental health problems aren't the "fault" of the accused, and are sympathetic towards doing their best for them.

 

Had a very good Crown today, and a very sincere conversation about doing what's best for this client I've got, in all of the above senses. It doesn't always work this way, but the days when it does are fulfilling, and it helps you get through the bullshit when you're just climbing down each others' throats some other time.

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Can someone speak to how you actually get per diem Crown work in the GTA? Are positions posted by MAG like any other job, or is there some other route that you have to take?

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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?

 

Gauging overall difficulty is tough. I mean, you acknowledge that in your question below by seeking more concrete examples (which I'll still fail at) but I'll try to give you something, at least. In my own entirely subjective opinion, there are two things that stand in the way of "making it" as you say. Aside from simply having the nerve to make the leap at all. First, you need the sort of personality that allows yourself to continually put yourself out there, scramble for clients, and just generally work it. This isn't the same thing as networking. It's best termed hustle, I suppose. You need to be able to do that. Second, you need to be willing to essentially devote your life to your practice for a couple of years. I'm sure you can do it with less, but it's going to eat most of your life no matter what you do. You have to be ready and willing to work until midnight not because anyone is watching your billables but only because that's what you need to do.

 

In my opinion, most lawyers could do this. That is, most lawyers have enough of each quality that they could, if they cared enough, make it. Whether it's actually worth what it takes is another question. Maybe the ones that choose not to make these sacrifices and just work for the Crown instead are smarter than me

 

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? 

 

The problem with answering this is that sole practice isn't really an in or out thing. I know lawyers in sole practice who tried to make it on their own and then worked instead for another lawyer on contract for a while. Does that mean "giving up?" Or lawyers who intentionally only work part time or from home (often women) who aren't trying to make a full time income at all. Is that "success" or not? I don't know.

 

Sorry, I just don't have enough data. Anecdotally, there are probably quite a few lawyers who at least dip their toes into sole practice and they give up or fail out quickly. But it's actually far easier to dip in than you may believe, so that's going to skew the numbers too. See an answer I already anticipate, below.

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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. 

 

You know, you'd be amazed how minimal your basic costs really are. You need space, yes. So your first month's rent. You need a computer, but you probably already have one, or else you need a cheap(ish) one for the office. If your office isn't furnished you need some basic things. A bit of stationary. And business cards. Once you are able to take on clients (which is mainly dependent on getting legal aid empanelment) then you've started. There really isn't much else that's needed to do the job.

 

Put it this way. My expenses hover at around $2,200-2,300/month, and that's with a fairly generous attribution of stuff like car, phone, etc. that I would otherwise need anyway. My first month of operation (I just checked) was around $4,700 but that includes over $2,000 in LSUC fees I paid that month. There really isn't a lot of other overhead.

 

That said, you need to eat and pay your own rent too. So probably the biggest start up cost is simply supporting yourself before your billings start to reach sustainable level.

Edited by Diplock
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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?

 

Could do it, and nothing is explicitly stopping me. But as noted already it's very hard to maintain multiple areas at once. Some lawyers do crim/family or crim/immigration or even crim/civil litigation and I think that works well. But doing more than two areas would drive me mental. I already feel out of my depth a lot of the time. Early on, I took some civil files. I found they were more trouble than they were worth simply because I was always lost and didn't have the advantage of repetition to make my job easier. Now I do only criminal.

 

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

 

Some, but it's only a trickle. I try to send it to people I like and trust, and ideally people who are positioned to refer some work back to me at times. I don't make anything off referrals (or ask for anything) but that's mainly because the clients I'm referring aren't well-paying clients and therefore the referral isn't worth a lot. If they were good, cash clients I'd probably ask for a fee of some kind.

 

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

 

If Brian Greenspan, or maybe Marie Henein these days, tapped me on the shoulder and said "hey, you're just the associate we need, and maybe part of the future of our firm" I'd think seriously about that invitation. There's no real reason to believe that invitation is coming, however. And even then I can only promise I'd think about it. Nothing else would attract me into signing on to someone else's practice.

 

The alternative, of course, is simply building my own firm. It's something I'm thinking carefully about, exactly because I'm very good at attracting business. I haven't figured out how to scale up yet, but maybe in the future. If I build my own firm, does that count as being "back" in a firm, or working for myself, or both?

 

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?

 

My network from law school, to whatever extent I had a network, is meaningless to me now. I have a few friends, but it's hardly part of the foundation of my practice in any way.

 

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? 

 

I don't think I can. There's no "normal" here. Some files are so quick that it's literally just one day in court to assist a client with pleading guilty. Meaning, a major trial (which I don't really do yet) could run for weeks, and that's after kicking around for two years to even make it to trial.

 

Maybe I'll keep this question in my back pocket and come back to it at some point where I break down every stage of a file and do my best to cover all contingencies. But there really isn't anything like a "typical" criminal file. Some cases are huge. Some are almost nothing.

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How do you figure out what to bill on a private retainer ? (I'm working on getting out on my own and the financial side is worrying more so as I'm in a very small commuity with no real chamber oproutities )

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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?

 

I agree with MP, in that I don't necessarily see why you'd look to work for a firm for a while first. I mean, maybe if you can't get a Crown position having another plan is a good idea, but why not start as a Crown in the first place? That said, I do see Crowns coming from a variety of backgrounds, so I certainly think having a general litigation background and applying for a Crown gig you'd be considered a viable candidate. More than that I can't say. MP's insight should be considered far superior to mine on this line of inquiry.

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I hate to jump in on Diplock's Q&A (which I am finding most informative, actually), but I do a generalist mix of work, including criminal. You'd starve in a small town doing only criminal, and the corollary is that locals need criminal defence as well, so you have to be adaptable. Mind you, virtually all of the crim stuff I do is one of three offences: DUI, assault or drug possession. The key is to knowing when something is above your pay grade and when to walk away from it.

 

I 100% agree that the small town scene is very different, and it makes much more sense to dabble in that context. Though that said, I have no idea how you can dip your toes into DUIs. That's a heinously complex area of law. I know full-time crim lawyers who don't touch it. But I guess if you live in a town with a lot of drunk idgits, you might learn it well of necessity.

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Firstly, have you ever found it emotionally difficult to represent an accused? I imagine defending some petty charge wouldn't be emotionally difficult, but have you ever done a murder trial? If so, what feelings were you experiencing? Do you become more immune to these emotions as time passes? 

 

I rarely find it difficult, though there are times you question what you're doing. Doesn't have to be a big thing. Might just be your average domestic case where the victim wants the whole thing to go away because he promised he'll change and won't do it again and she thinks it's best for the children. So you're stick handling some resolution with the Crown that you know will result in them staying together because suddenly the reluctant witness has screwed up the case for the Crown. Do I love that stuff? No. But it's part of the job. In situations like these, I usually remember that people are entitled to make their own stupid fucking mistakes, and being a part of those mistakes isn't necessarily my fault. Sometimes people buy a big screen TV instead of stocking the fridge for their kids. Is the sales guy at Future Shop at fault? I know that sounds like justification, and it IS justification, but I think it's also valid. It's a mistake to inflate your role as a lawyer. Yes, we have authority. But not so much that it becomes my job to make everyone's decisions for them. If they want my help to do something I think is stupid, it may still be my job to help them. I don't enjoy it, but it doesn't haunt me.

 

I've never had my own murder trial. That's getting called up to the big leagues. But I'm assisting senior counsel on a murder file. It involves the abuse and neglect and the eventual death of a small child. There are pictures. The file (and the pictures) are a foot and a half behind me as I type this. It makes me think sometimes. I'm comforted (in this case) by the fact that all we're really doing right now is dickering between first and second degree murder charges. I'm not sure it's first. I can get behind this defence. But the facts still make me sick.

 

Again, I think the answer here is a bit of humility. We're doing a necessary job in a difficult system. Someone has to do it. The days when I can't enjoy it, I at least take pride in knowing that I do what needs to be done.

 

I'll let you know if I ever become immune. But I'll tell you what. Black humour is very common in criminal defence circles. I don't know if it's a defence mechanism (hee) or if we're all just tactless jerks. But if you can't laugh at the very clumsy woman married to the badly misunderstood man who's telling the court for the third time that she fell down again and broke her arm and of course he never hits her ... what can you laugh at?

 

Secondly, do you feel that you are, from non-lawyers/non-anyone-that-is-a-legal-actor, negatively judged on the basis of 'representing an accused'? 

 

Sometimes. It very rarely bothers me. Here's an interesting tidbit. My wife has a friend who knows the family that were killed in the Marco Muzzo case. As in, he has pictures with those kids who are now all dead. She's told me flat out - you can't be involved in that. (As if Brian Greenspan might call me up for an assist, but that's not the point). I feel like I could and would defend him. I think I'd defend anyone - or I hope I would. Usually my wife supports me. But she doesn't "get" it. She doesn't get why everyone needs a defence. When it's personal for her, it's personal. She'd also probably stop feeding me if I defended anyone who hurt a dog.

 

Most times, I can't give a shit if people think criminal defence lawyers are bad people. I'll happily tell them why they are wrong and stupid and then get another beer. There's also a lot of people who know we're cool, and have a profession that comes with all kinds of cool stories to tell (and even more we can't tell) and we know dangerous people and do cool shit. And sometimes we get on the news. That's fun. I enjoy the image. It fits with who I am, and that's probably no fluke. When I'm an old criminal defence lawyer I plan on getting a motorcycle and growing my hair long (again) and maybe go around town with a stripper half my age and bring her to inappropriate social events. I mean, if you're going to be that guy, might as well have fun with it.

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Can someone speak to how you actually get per diem Crown work in the GTA? Are positions posted by MAG like any other job, or is there some other route that you have to take?

 

No clue. I'll try to remember to ask a per diem Crown. Unless someone who does know wants to chime in?

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Here's an interesting tidbit. My wife...

 

My mind is kind of blown right now. I always thought you were married to being a dick to people on the internet.

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My mind is kind of blown right now. I always thought you were married to being a dick to people on the internet.

 

Diplock's a big softy. This thread is doing a lot to cripple the image of being a no-nonsense hard-ass. 

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My mind is kind of blown right now. I always thought you were married to being a dick to people on the internet.

We are his collective mistress. Ranking somewhere below his eventual stripper date.

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How do you figure out what to bill on a private retainer ? (I'm working on getting out on my own and the financial side is worrying more so as I'm in a very small commuity with no real chamber oproutities )

 

I suck at this. I just drastically under-charged someone.

 

Most lawyers will tell you that you figure out what your client is willing to pay and then quote them that much. I may eventually become that mercenary. I mean, I'm doing okay right now, but I'm working insane hours for only a good income with no benefits or retirement plan. I don't want to do this all my life. Hell, I probably just can't - I'd die. So eventually I'll have to slow down and that means being more of a bastard about squeezing the clients you've got. But I'm not very good at this.

 

As a starting ballpark, here are some decent rules. Figure out what legal aid pays you to do stuff. You'll know that very soon. You should quote a private client at least 1.5-2 times that amount. Never work for less than legal aid. And the rest you'll feel you way towards as you go.

 

NOTE - This applies to Ontario. No idea how legal aid pays in other provinces. I've heard some horror stories. Not that Ontario is generous, but there's always worse and better.

 

NOTE ALSO - You don't need to be in chambers to gain local insight. You can probably find this out from a local source for the price of coffee or beer and it won't take more than 20 minutes. Other lawyers will probably be fairly generous with their advice here. New lawyers tend to price too low rather than the opposite, and no one wants you under-cutting the market by too much. So you'll probably find people will be willing to chat, probably especially in a small town where one new lawyer can have a real impact on the market.

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Thank you for the response. Very thoughtful and I appreciate it. 

 

[...] I'm comforted (in this case) by the fact that all we're really doing right now is dickering between first and second degree murder charges. [...]

 

So, despite whatever happens, the accused, in this case, is being locked up for a very long time. I know you said this isn't your actual file, so maybe my question won't resonate to the extent I want it to, but I'll ask anyway. I would imagine, to at least the smallest degree, some sort of connection, between yourself and the client, will be built. Knowing that the accused, in this situation, is being sent to jail for a very long time, how does that make you feel? Do you feel sorry for the person, or have you been able to build some wall that rejects the sharing of emotions between yourself and the accused? 

 

Like I said, I know this isn't your file, so maybe you haven't built a connection with the client. In that case, I'm not sure if you are able to answer my question. But I'm still interesting (edit: interested) in hearing your thoughts. 

Edited by PerniciousLaw

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