It’s probably not a surprise that we regularly hear from, and reach out to, many white collar criminal defense lawyers. Jason Goldman contacted us after reading our recent article in Entrepreneur, “9 Things to Know when Hiring a White Collar Criminal Defense Lawyer,” and offered to write a reflection from a white collar lawyer’s point of view. I think he did an admirable job. – Jeff
In my experience as a former prosecutor and now as a criminal defense attorney, I’ve learned that the most successful lawyer/client relationships are forged in trust and respectful behavior. Below, I have pointed out a few things to be helpful to both clients and the white collar bar:
1 – Don’t Lie
Of course, at the inception of being retained, your lawyer is going to ask you a number of important questions, many of them pointed and narrow. Don’t lie. As discussed below, by nature, we unfortunately operate in the dark during a federal case, especially early on in the prosecution before any discovery has been turned over. Yet, the client, with firsthand knowledge as to what evidence may be produced, can shed light and provide a glimpse into the future for us. Further, this is typically the time when the most favorable plea offers are made or the opportunity to cooperate is on the table, if desired. Therefore, gathering truthful and honest information from the client at this stage is crucial. First, we can better determine the best avenue for your case, whether it be setting you up for a potential cooperation, entering into an early plea, or gearing up to fight your matter through motions, hearings, and potentially a trial. Moreover, what a client relays to his or her attorney may very well become part of early conversations between defense counsel and the government. Hence, if you lie, not only will we both lose credibility at the outset of the case, we may also miss out on certain opportunities to engage in successful proffer sessions or effective plea negotiations.
2 – Be a Team
You feel confident about having hired an esteemed defense attorney. However, with a great lawyer also comes one that is in-demand and busy. You may feel that, given the hefty sum you just paid, that your work is done. In reality, your attorney is going to need a lot from you, whether it be documents, details regarding certain aspects of your case, or help investigating potentially favorable leads for your defense. The same way you should only hire an attorney that is willing to answer your frantic Saturday at midnight call, is the same way your attorney should be able to reach you at all hours as well – your successful attorney works on weekends, and he or she may have blocked out a time for your matter on a Sunday morning. Similarly, if your attorney asks you to track down an individual or a document, keep it on your radar so that neither of you let it slip through the cracks. Feel comfortable creating deadlines with one another.
3 – Be an Open Book
Similar to Point 1, there will be times where your attorney asks you extremely open – “lay it all out to me” – questions. You should do exactly that. Often, this will take place after you have taken a plea but before your attorney has drafted your sentencing submission. As you have already admitted your guilt on the record, now is the time to let it all out – whether it be good, bad, or neutral. What you think may be a small and irrelevant detail about your life may turn into an incredibly useful point for mitigation during your sentencing, one that can be explored, evaluated by an expert, and that can result in months of your eventual sentence. Your attorney should advise you that this approach is even more crucial during your pre-sentence interview, as Judges give great, if not the most weight, to any and all items included within the four corners of the pre-sentence report.
4 – Try not to Google or Listen to Family Regarding the Finer Points of Law
If your dentist mentioned to you that he or she was using a certain tool for your upcoming root canal, would you question that choice by searching on Google, Reddit, or consulting with family members? Keep this same mentality for the finer points of law. The best attorneys are successful, in part, because they are not “yes-men” to their successful, white-collar clients who are used to calling the shots – therefore, your attorney is ultimately unlikely to follow your in-laws advice anyway. That being said, questioning your attorney’s knowledge and skill has its collateral consequences – it shows a lack of trust and, if it becomes common practice, will ultimately serve to annoy your attorney and take time away from productive work. At worst, depending on your attorney’s level of experience, he or she may begin to question their own strategy, and walk back on some promises and positions already made towards the prosecutor, which will only hamper credibility and reliability moving forward.
5 – Ask for Clarification
That being said, you must ask your attorney to clarify anything you don’t understand. Federal criminal defense, particularly plea agreements, guidelines, and sentences, is a complex and ever-evolving field of law. The federal guidelines manual is over 2,000 pages, and even seasoned attorneys, with years of practice, are always working to better understand each and every caveat. Therefore, it’s expected that you won’t comprehend everything about your case and where you stand. Yet, by the time of your guilty plea, it is imperative that you do understand the significance of that plea, the different possibilities you will face at sentencing, as well as any collateral consequences. Will this plea effect your immigration status or your professional licenses? Will this plea expose me you to a certain minimum or maximum amount of prison time? These basics are imperative. Ask until you know with as much certainty as possible. Nothing is worse for us or for you than a client, who well after he is sentenced and perhaps is now serving out prison time, feels as if they didn’t know certain things that were taking place during his prosecution, plea, and sentence, and is now making frantic, angry calls from prison in hopes of a do-over.
6 – Listen to the Good, Bad, AND the Ugly
If, during your initial search for an attorney, you are fed only the best case scenarios – think, “you definitely aren’t going to jail” – don’t go with this attorney. He or she is likely lying to you, feeding you what you hope to hear in order to land your business. Very rarely will you be looking at a guaranteed outcome of zero months in prison, and even less likely will this be known so early into the prosecution against you. Rather, go with the attorney that is honest, the one who tells you that while non-jail may certainly be an outcome, it may also be just as likely that you are going to prison for some amount of time. As attorneys, we certainly want to exude confidence towards you, especially during your darkest days following what is likely your first ever time in hand-cuffs. However, the honest attorney will still make it a point to explore best AND worst case scenarios.
As a client, you must then also be fair to yourself, your family, and your lawyer by later remembering the good, bad, and ugly. IF, as often is the case, a final sentence handed down to you requires some prison time, it’s unfair if you told your family and children the whole time that you were getting probation because your attorney said so, when, in reality, your attorney told you that probation, home-confinement, and years of prison time were all potential outcomes. Keep your and your family’s expectations in check, especially towards sentencing, by remember that no outcome is certain until the Judge hands down her final decision.