This might seem like a strange title for an article. Aren’t lawyers required to be honest with their clients? Of course. Does that mean lawyers are always completely honest with their clients? Unfortunately, my experience as a criminal defense lawyer indicates that some lawyers may not always be completely candid, especially when trying to get a client to hire them.
One of the roots of the problem is that many criminal defense clients do not really want their lawyer to be completely honest with them. If you ask them directly, they will say they want their lawyer to be honest, but what they often really want is for their lawyer to tell them that the lawyer can solve all of their problems. This can create a powerful incentive for lawyers to say (or at least imply) what clients want to hear. Beyond the obvious ethical issues, I believe this is a serious disservice to clients, and it can create major problems for the client down the road.
When someone is accused of a crime and is looking at potential prison time, it is a crisis that is extremely stressful for the accused as well as their loved ones, especially if the accused is the one who provides for the family. People who go to a criminal defense lawyer naturally want the lawyer to make them feel better by telling them that everything will be OK, and they may decide to hire the lawyer who makes them feel the best about the case.
Many people also have unrealistic expectations about what lawyers can do. For example, I was recently called by a woman who said that her boyfriend had been arrested for armed robbery in Dallas County. Without telling me anything more, she asked, “What are the chances that you can win his case?” I had to explain to her that her question is like saying to a doctor, “My boyfriend has cancer. What are the chances that you can cure him?” The doctor would need all kinds of information before even making a guess, like what kind of cancer it is, where it was in the body, how much it had already grown, whether it had spread to other areas of the body, the patient’s age and health, and a lot of other information that I don’t know because I am not a doctor.
Like the doctor, I could not possibly even guess at the chances of winning the case without knowing a LOT more about the case. Very often, I will not have enough information to do an accurate evaluation of a case just from what the accused tells me, much less a loved one who tells me what they have heard second hand. I can probably only get that information by working hard on the case and investigating the facts, but I need to be hired to do that.
It is also surprisingly difficult for a lot of people to understand how someone they hired to be their advocate can also tell them why the case against them may be difficult to overcome. When we are meeting to talk about the case, clients have said things like, “How can you say that? You are supposed to fight for me!” I have to explain to them that I am their advocate when I am dealing with the prosecutor or in court, but I also have to give them realistic expectations about their chances so that they can decide, for example, whether they want to accept a plea agreement offer or go to trial.
Because criminal defense clients want lawyers to make them feel good, it can be very tempting for lawyers to tell them that the lawyer can win their case even though the lawyer really does not know enough to say that. This is especially true when the lawyer is trying to get hired. Some lawyers may use sales tactics like saying, “I definitely believe I can win your case,” which implies a promise, but the lawyer may really be just expressing confidence in his general ability and not promising anything about your case. As the lawyer knows, though, the client, who is desperate for assurance, hears, “I promise I will definitely win your case.” The client then feels good and hires the lawyer.
The problem is that the inflated expectation the lawyer has created can absolutely torpedo the case later. If the client thinks the case will be won, and it turns out that the case is extremely difficult to win, the lawyer will have a tough time recommending a good plea bargain that is in the client’s interest. The result can be disastrous.
Here is an example. I was recently approached by the family of a man who wanted representation on appeal. Their family member was a man who was offered a plea bargain of seven years in prison for a drug case. The man’s trial lawyer had assured him that the lawyer was the best in town and would win the case. The man did not take the plea bargain offer and went to trial. He was found guilty and sentenced to 68 years in prison. Obviously, he would have been much better off taking the deal, but the expectation the lawyer created caused him not to take it.
Another problem occurs when the lawyer gives the client and the client’s loved ones an overly optimistic expectation at the outset and then tries to change those expectations later when it turns out that a less favorable plea agreement is in the client’s interests. Trying to lower a client’s expectations after the lawyer has built them up can confuse the client. If the expectations of loved ones have been built up hearing what the lawyer has said, the loved ones will probably resist the new and less optimistic view of the case. Pressure from the lawyer and loved ones can make a client feel like the lawyer is trying to force the client to plead guilty. This is a recipe for a grievance.
I get a lot of calls from people saying, “If I hire you, I need to know what you are going to be able to do for me.” They are used to people being able to tell them that, if they pay a certain amount of money, their car will be fixed, or their house will be painted. They are used to businesses giving money-back guarantees, and they want a promise of results. I have to tell them that I cannot promise them a result and that the ethical rules I have to follow tell me it is not ethical to do that. I do tell them that I can promise they will be hiring a very smart, very experienced lawyer who will work hard for them, who will communicate with them, who will always give them honest advice, and who will fight for their rights. I tell them what I have accomplished as a criminal defense lawyer, and I urge them to look over my website to see what I am all about.
I also use another doctor analogy: If you had a life-threatening medical condition, a doctor is not going to be able to promise that you can be cured, but wouldn’t you want the best doctor you can find so that you have the best chance at the best possible outcome? For a person faced with a serious criminal charge, it is no different.
Originally published in Texas Lawyer,
April 10, 2017