Resolutions to Avoid Criminal Law Claims

• I will take the time to ensure the client understands my recommendations: Failing to effectively communicate with the client is just as much a claims pitfall in criminal law as in other areas. This could be because of the rushed nature of many “courthouse steps” conversations, or the fact that the lawyer’s years of experience on cases may obscure the fact that the client doesn’t fully understand the course of action the lawyer recommends. There is a risk that clients may later regret their choices and make a claim against the lawyer. To guard against this, be sure to provide detailed information about your analysis of the case, the plea options available, your recommendations, and a reminder that the plea decision is the client’s alone. It may not be required to document ALL your communications with the client, but it is good practice to do so as much as possible.
• I will discuss with the client the potential consequences of pleading guilty (and document it): While criminal law is traditionally a low claims-risk area of law, those claims we do see often involve a failure by the lawyer to communicate all the long term ramifications of pleading guilty to a charge. For instance, a truck driver pleading guilty to DWI may find out later that he may have difficulties with his job if he can’t cross the U.S. border. Be sure to document your conversations with the client in this regard.
• I will promptly notify LAWPROof any appeals based on “ineffective assistance of counsel.”: A client may appeal a guilty verdict based on grounds that the trial lawyer provided ineffective assistance. The appellate lawyer may ask the trial lawyer to sign an affidavit supporting this ground of appeal. If asked to do so, you should call LAWPRO right away so that we can advise on whether it is necessary and if so, how to do so without admitting negligence.
• I will meet with my client in my office whenever possible: Client meetings held at the courthouse while awaiting appearances sometimes lead to poor documentation of the content of the meeting, and incomplete understanding, by the client of what was explained. Wherever possible, and especially where charges are serious, you should make the effort to hold dedicated meetings at your office to discuss important issues if a client is not in custody.

These resolutions were taken from “New Year’s resolutions for a better practice and a new you” which can be found in the December edition of LAWPRO Magazine.