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Criminal Defence Lawyer in Sole Practice - Ask Me Anything

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2 hours ago, pzabbythesecond said:

valid point. But I think you can still object to the idea that counsel can be barred from the questioning, even if they want to be present.

The police are entitled to do their jobs. Investigating crimes is their job.

It is not the roll of lawyers to interrupt an otherwise valid police investigation technique - the accused is entitled to know her rights and how to exercise them. That is the limited role of counsel at that stage. If the police can then take advantage of a guilty conscience to properly identify the guilty party, we as a society are ok with that. 

The best way I have ever found to get a client to keep their mouth shut is to tell them that every single word they say gets recorded, transcribed, and a copy ends up on my desk. If they ignore my advice I will know. And then we will sit in my office afterwards and they will have to answer to me for every single word that escapes their mouth. I make that very clear. 

I find it gives them context for the interview, which can otherwise feel totally alien and awful and never ending. If they can imagine sitting across my desk in my office a short time into the future, well away from the interrogation, they seem much less inclined to get chatty with the cops. 

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3 hours ago, setto said:

Aren't articling students normally tasked with this sort of thing?

Not for murder sit-downs. For youth,  yes. 

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28 minutes ago, Hegdis said:

The police are entitled to do their jobs. Investigating crimes is their job.

It is not the roll of lawyers to interrupt an otherwise valid police investigation technique - the accused is entitled to know her rights and how to exercise them. That is the limited role of counsel at that stage. If the police can then take advantage of a guilty conscience to properly identify the guilty party, we as a society are ok with that. 

The best way I have ever found to get a client to keep their mouth shut is to tell them that every single word they say gets recorded, transcribed, and a copy ends up on my desk. If they ignore my advice I will know. And then we will sit in my office afterwards and they will have to answer to me for every single word that escapes their mouth. I make that very clear. 

I find it gives them context for the interview, which can otherwise feel totally alien and awful and never ending. If they can imagine sitting across my desk in my office a short time into the future, well away from the interrogation, they seem much less inclined to get chatty with the cops. 

But this depends on what jurisdiction they are in. In the US, accused are entitled to have a lawyer present, and the hope in Canada, on the part of defence counsel at least, was that when that trilogy of "advice" cases went before the SCC, we would also move in that direction. 

I think that the analysis often overlooks or minimizes the extreme power imbalance between police and accused, and that's not even taking into account the large proportion of accused persons who are indigenous/racialized, have severe mental health and/or cognitive issues, have limited educations, and so on. The presence of counsel could redress that imbalance somewhat and prevent police exploiting clients' frailties. We allow counsel to attend for youth, recognizing the power imbalance there, which doesn't magically correct itself when an accused turns 18. Nor does having counsel at youth interviews impede valid police investigations. 

I know a Crown who was arrested and brought to the police station, and they told me that as a Crown, they had never really understood the sheer terror of being alone in that tiny room with a cop, and that they had to fight the feeling of just saying whatever it took of getting out of there, and they now understood how accused, with less education and understanding of the process, would feel. 

I find that it takes a lot of time on the phone with most clients to get them to keep their mouths shut, and most counsel or students don't spend that time, which is understandable when you consider that it's usually unbilled time, often when you are woken in the night from a deep sleep or are busy trying to have private time, but is not excusable. I will tell them what you said above as well as role-play with them, describe common police techniques and give them examples of clients who had good outcomes because they didn't talk, and the opposite.

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Both @Hegdis and @lioness raise good points and I think the way you're both explaining how and why to remain silent is really good.  I think Hegdis nailed it though with the comment about the guilty mind.  I've done more post arrest interviews than I can recall and I can count on one hand the number of accused persons who followed their lawyer's advice and said nothing.  I'm not sure how much is on account of the guilty mind or how much is attributed to them just loving to talk and/or brag.  It's not Hollywood where we get confessions or great statements every time, but most of them talk and it's fairly easy to get them to do it even when they start the interview saying they're not going to say anything.

 One of my favourite interviews was with an adult male who had spent most of his life in and out of prison.  He had been burned in previous interviews with police where he disclosed more than he wanted to and the evidence was used against him.  Even despite knowing that and speaking to his lawyer twice (once when first arrested and once before the interview), he still gave a great statement implicating himself in multiple crimes.

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42 minutes ago, Stark said:

but most of them talk and it's fairly easy to get them to do it even when they start the interview saying they're not going to say anything.

This should be a warning sign that there aren't enough safe guards in place.

When people readily and easily give up information which is used against them, even after being told not to, they are acting clearly against their own self interest. Why that would happen seems to point to the power imbalance lioness mentioned. It just makes sense to stop this from happening.

Crown should be able to put criminals away without them jeopardizing themselves through a frightening mechanism.

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Well, the driver in the Humbolt crash chose to plead even though he likely had a triable issue. The urge to confess and take responsibility is a pretty hefty thing. 

That a person later regrets their candid discussion with police is not a legal issue. In the moment they feel a sense of relief, and that is a great motivator.

I am not saying that it isn’t an uncomfortable and frightening process. But what’s the alternative - to prevent police from investigating? At a certain point society’s interest in solving crime does counter the balance.

 

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1 hour ago, Stark said:

Both @Hegdis and @lioness raise good points and I think the way you're both explaining how and why to remain silent is really good.  I think Hegdis nailed it though with the comment about the guilty mind.  I've done more post arrest interviews than I can recall and I can count on one hand the number of accused persons who followed their lawyer's advice and said nothing.  I'm not sure how much is on account of the guilty mind or how much is attributed to them just loving to talk and/or brag.  It's not Hollywood where we get confessions or great statements every time, but most of them talk and it's fairly easy to get them to do it even when they start the interview saying they're not going to say anything.

 One of my favourite interviews was with an adult male who had spent most of his life in and out of prison.  He had been burned in previous interviews with police where he disclosed more than he wanted to and the evidence was used against him.  Even despite knowing that and speaking to his lawyer twice (once when first arrested and once before the interview), he still gave a great statement implicating himself in multiple crimes.

It’s because we are social beings, and silence between people is incredibly uncomfortable, so the urge to break the ice by talking can be overwhelming. 

 

9 minutes ago, Hegdis said:

Well, the driver in the Humbolt crash chose to plead even though he likely had a triable issue. The urge to confess and take responsibility is a pretty hefty thing. 

That a person later regrets their candid discussion with police is not a legal issue. In the moment they feel a sense of relief, and that is a great motivator.

I am not saying that it isn’t an uncomfortable and frightening process. But what’s the alternative - to prevent police from investigating? At a certain point society’s interest in solving crime does counter the balance.

 

The alternative is to find ways to investigate that don’t rest so heavily on pressuring vulnerable people to say things that may not even be reliable. 

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I should say that having successful challenges to the voluntariness of a statement illustrates that there is an answer to a person being intimidated or overwhelmed. Your client takes the stand and if you do it right the Court can assess for themselves that person’s mental capacity, youth, or timidity. 

Reliability is another thing counsel can illustrate in court during a trial. The interrogation is not the end of the file. My point is lawyers typically step in later in the process for a reason. Not a flawless reason, but one that our SCC in Sinclair set out clearly. 

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Just now, Hegdis said:

I should say that having successful challenges to the voluntariness of a statement illustrates that there is an answer to a person being intimidated or overwhelmed. Your client takes the stand and if you do it right the Court can assess for themselves that person’s mental capacity, youth, or timidity. 

Reliability is another thing counsel can illustrate in court during a trial. The interrogation is not the end of the file. My point is lawyers typically step in later in the process for a reason. Not a flawless reason, but one that our SCC in Sinclair set out clearly. 

True.... but this depends on the competency of counsel and sad to say, on legal aid files, there are counsel who don’t even watch the statements. I’ve had appeal files where this was the case. I know a few counsel who have never done a voluntariness file, which I find hard to believe with the volume of files they have, considering how many I have done. 

There are also lots of times where counsel shows some pressure and intimidation by the police but the court finds it falls short of making the statement involuntary. And as well, the vast majority of judges assessing a statement come from backgrounds so different from the accused that I question whether they can properly grasp the issues. 

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I see your point but I don’t think letting an incompetent lawyer sit in on the interrogation will improve matters. 

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I agree with Hegdis.  Let the court be the ones to decide whether the statement was voluntary.  If they believe police overstepped their authority, then the court is best placed to remedy that. 

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11 minutes ago, Stark said:

I agree with Hegdis.  Let the court be the ones to decide whether the statement was voluntary.  If they believe police overstepped their authority, then the court is best placed to remedy that. 

Of course voluntariness should be within the court's purview. My point is that in some cases, a phone call and a potential future voluntariness inquiry are insufficient safeguards against improper police actions in interviews.

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If I were king of confessions law for a day, I would create some sort of rule that investigators must allow counsel (or maybe someone else) to be present throughout questioning, where investigators know or reasonably ought to know that the accused has a disability or mental illness, which may impair their ability to understand the nature of the questioning or produce a false confession. I understand that where the markers of reliability are absent, judges can exclude the evidence after the fact. But I think that the justice system should do more to protect the rights of the most vulnerable throughout the process. We already afford the protection to youth. I don't see why we shouldn't extend the same right to other individuals, who, as noted by the SCC in Hart, are at similarly elevated risks for giving false confessions. 

Alas, despite my continual monitoring, I haven't seen a single posting for a king of confessions law position (w/ requirements: not called to the bar yet, minimal experience valued). 

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On 4/3/2019 at 3:18 PM, Hegdis said:

Well, the driver in the Humbolt crash chose to plead even though he likely had a triable issue. The urge to confess and take responsibility is a pretty hefty thing. 

That a person later regrets their candid discussion with police is not a legal issue. In the moment they feel a sense of relief, and that is a great motivator.

I am not saying that it isn’t an uncomfortable and frightening process. But what’s the alternative - to prevent police from investigating? At a certain point society’s interest in solving crime does counter the balance.

 

The Humboldt driver’s decision is a little different, though. He had months of advice from experienced counsel I assume he trusted who had the benefit of disclosure and research and could make some predictions as to possible outcomes. There may have been various considerations we know nothing about that were discussed between defence and crown and defence and client. He made an informed and free decision to plead after receiving extensive advice. The parties laid out agreed facts and each had their chance to speak.

People confessing to police have often had a 5- or 10-minute conversation with a sleepy lawyer or law student they don’t know and don’t have a relationship with, who does not have the disclosure in front of them. This does not lead to an informed decision to do something that will greatly influence the conduct of the matter and their options going forward - and this is exactly what I tell clients. 

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I thought about this some more, and I think we’re looking at it too narrowly by focusing on clients who make admissions. What will happen a lot is that a client who may actually not be guilty harms their defence by providing a denial. Example: police lie to client and say they have his fingerprints on a knife used to stab someone. What actually happened was that the complainant tried to attack the accused with the knife, and the accused tried to disarm them and in the struggle, the complainant got poked. When the police confront the accused and lie about his fingerprints, he panics and blurts out that he never touched that knife, and repeats it several times. 

The problem here is that when the accused tells their lawyer the truth about what happened, the lawyer is now in a tough spot, because they need their client to testify about the struggle, but when their client does, the Crown will impeach them and call them a liar because that’s not what they told the cops. And voluntariness doesn’t really apply in that situation. The Crown wouldn’t put the statement in as part of their case, since it only contains denials, but they would sure as shit use it to cross-examine.

 I can understand to an extent the argument that it’s fair game for cops to encourage people to confess out of a guilty conscience, but I wish the courts would at least ban lying by cops. 

 

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On 4/3/2019 at 11:15 AM, lioness said:

I know a Crown who was arrested and brought to the police station, and they told me that as a Crown, they had never really understood the sheer terror of being alone in that tiny room with a cop, and that they had to fight the feeling of just saying whatever it took of getting out of there, and they now understood how accused, with less education and understanding of the process, would feel. 

1

Just out of curiosity, what ultimately happened with this person? Were charges approved against them? If so, did they elect for a trial or settle on a lesser charge? Were they disciplined by the Crown office? I always wondered what would happen in that scenario. 

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Question to any soles who happen to be lurking

How important/helpful is it for a sole to have a website? Whenever I stumble upon an advertisement posted by a sole practitioner on career services/Indeed/etc I usually Google them to find out about them. The majority of the time I can't find a website or any social media presence whatsoever. The best I can find is usually a listing in a directory that lists the type of law they practice. 

Many of these lawyers were called less than 10 years ago so it's not a matter of older lawyers not bothering to keep up with new technology. 

 

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Speaking personally, I find a website is somewhat useful, but more as a seal of legitimacy than a place that clients find you first. I always imagine a client doing what you just did - they think they want to retain me and they want to find out more. If they Google me and don't find anything - or worse just find the random crap that's collected on the Internet over time - maybe they go elsewhere. But that said, I consider it a lesser issue in my practice. So I'm not at all surprised others don't maintain one at all. It's not that it's useless, it just gets swamped by other, more pressing concerns.

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On 4/10/2019 at 8:29 PM, Toad said:

Question to any soles who happen to be lurking

How important/helpful is it for a sole to have a website? Whenever I stumble upon an advertisement posted by a sole practitioner on career services/Indeed/etc I usually Google them to find out about them. The majority of the time I can't find a website or any social media presence whatsoever. The best I can find is usually a listing in a directory that lists the type of law they practice. 

Many of these lawyers were called less than 10 years ago so it's not a matter of older lawyers not bothering to keep up with new technology. 

 

I don't have a website, but I have a well-curated LinkedIn page. I find that people Google me after they are already interested in me and referred to me by another source, and what they see on LinkedIn will solidify their interest. I don't think that that many people find lawyers by Googling them cold; word of mouth seems to be key, at least in my market. I find that most of the lawyers who do have websites are fairly junior and tend to use those SEO searches that tell you so-and-so is "one of the top lawyers in X city" or "one of the best impaired driving lawyers in Canada" and the like. I find that so cheesy and embarrassing and would never want to be seen to be paying someone to brag for me. If I did have a website, it would just be the website. The most senior and well-respected lawyers in my city hardly ever have websites and yet they are not hurting at all for business.

The main reasons I don't have a website is that if you have one, it needs to be maintained and frequently updated to be worth it, and that takes time and money, and I have limited resources and don't see it as a priority since I am doing just fine and have enough work. I think if you choose to chase more of a cash practice, which I am considering, it may start to be worth it, and I am looking at options that include not being a sole and would offer the opportunity to have a website that I personally am not directly responsible for. As a sole, it's just not something I've been able to do. LinkedIn is a bit easier to maintain and is also free, so that's my compromise. In other words, I'm pretty much agreeing with what @Diplock said. 

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Posted (edited)
On 4/8/2019 at 12:55 PM, Hesse said:

Just out of curiosity, what ultimately happened with this person? Were charges approved against them? If so, did they elect for a trial or settle on a lesser charge? Were they disciplined by the Crown office? I always wondered what would happen in that scenario. 

They were charged and ended up resolving with a community-based disposition. They were also fired as a Crown but I am pretty sure that there were other reasons behind that as well as the charges. I believe the law society got involved as well.

Edited by lioness
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