The choice of who will defend someone belongs entirely to the defendant. The lawyer has nothing whatsoever to say in the matter. While the lawyer’s feelings may be hurt, or he may feel that the client has made a poor choice, clients are entitled to hurt the lawyer’s feelings and make poor choices. It is, without reservation, a choice that belongs solely and exclusively to the client. For better or worse, it is his or her life. He or she will live with the consequences of the choice. The only caveat here is that we’re talking about retained cases, not assigned or PD, where different rules apply.
There are any number of reasons why a client would decide to retain other counsel. It could be about money or about a bad mix of personalities. Perhaps there has been a loss of faith, whether justified or not. A client’s trust is crucial to a lawyer’s ability to defend. There must be meaningful communication between the two, and there must be a sufficient level of trust if the lawyer is to be effective. When there is war between lawyer and client, the defense will inevitably suffer.
But Mark also seizes upon a sentence in Shawn’s post that he even known Weinstein to steal clients, and writes:
I am with Shawn most of the way. I’m hugely frustrated by the hacks who, to get hired, make promises they can’t keep. They are doing a huge disservice to the clients, to the bar, and to the profession. But I don’t believe that one lawyer can steal another’s clients.
I believe that Mark is referring to the fact that “stealing” suggests taking something that he has no right to take, and since the case belongs to the client and not the lawyer, it is something that cannot be stolen. While certainly true in a definitional sense, I don’t know if Mark has seen some of the things that happen in New York from time to time. I feel comfortable calling it stealing.
There are lawyers roaming the hallways of New York’s citadels of justice trolling for clients. There are lawyers who go into the jails, both state and federal, and bring down defendants with new cases whom they’ve never met before and who have never requested a meeting with them. There are lawyers who pay defendants a bounty to convince new defendants, including those who are already represented, to hire them. There are lawyers who pay the hot dog vendor outside the courthouse for referrals. I call these lawyers the “vultures”.
New York lawyers can be very aggressive in their approach to getting new cases. Perhaps (and I hope this is true) Houston lawyers don’t do these things. But I call this type of conduct stealing clients. Note, we’re not talking about lawyers who have received a phone call from the family or the defendant, asking for a visit. We are talking about defendants being brought in cold, thinking that their lawyer would be there in the visiting room only to find someone they don’t know at the table, telling them tall tales about what they can do for them.
Again, Mark is correct when he writes that there is no ethical prohibition against meeting with a defendant who has sought a meeting, even though he is already represented by another lawyer. It is the client’s right to change, even if he’s shopping for a bargain, testing the waters or just trying to get a second opinion. But when a lawyer pro actively approaches another lawyer’s client without invitation, he’s crossed a huge ethical chasm. It may not be “stealing” in a penal sense, but it is most definitely stealing in an ethical sense. Perhaps “raiding” is a better word. Regardless of what word you prefer, it’s wrong.
Like Mark, I generally find myself in the position of being the new lawyer rather than the old. My experience is that this is due to the need to find a lawyer fast following an arrest, and that they’ve made an ill-advised choice. After some research and discussion, they find out about me and give me a call. There is also a tendency to go with an inexpensive lawyer to find out if the arrest is “serious” before going for the more serious, and more expensive, lawyer. This second reason presents numerous problems due to lost opportunity, but we work with what we have and can’t make the past go away. It’s better to move forward in the right direction than keep doing the wrong thing as a result of inertia.
When the clients comes, we don’t trash talk the old lawyer. We don’t undercut his fees to get a case. We don’t chastise the client for a foolish or knee-jerk decision. We look at the case and offer the best advice we can as to what can be done to help. Sometimes, the advice is to stay with the current lawyer, whether because we can’t do anything to help or because the client’s desire to change lawyers is based upon a misapprehension that the old lawyer “didn’t do anything.”
The client’s expectations or perception of the old lawyer may have been wrong, and the lawyer has done, and is doing, exactly what he should be doing. While I don’t turn this client away if he insists, I try to let him know that his unhappiness with the old lawyer is based on misperception, and that his lack of confidence in the old lawyer is based on misunderstanding, not poor lawyering.
Why tell a potential client to give his old lawyer another chance? Because we live in a community of people who hope are honorable, and we choose to be honorable as well. I choose not to be a vulture, even though it could put money in my pocket. I won’t steal another lawyer’s client. But if a client decides that I am a better fit for his needs, and I can do something to help, I will accept his case.
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Loved the post. Again, no one has stolen a client of mine, lately. But the scenario I’m really talking about has to do with the letter lawyers. I commented about this on Mark’s post.
A client comes in and hires you. Then the client starts to get all kind of “one-size-fits-all” advertisements from the Weinsteins. So the client goes for a free consult. The client is then given the pitch, which is completely without any basis in fact. It sounds so good, the client decides to make the switch. The client then gets to court and the Weinsein tells him he can’t get him what he “promised” and he should just plead. Because Weinstein doesn’t try cases.
It’s not something that bothers me as the lawyer that was subbed out, but it bothers me that we have to be associated with “hacks” like that.
Oddly enough, New York has very little direct mail and TV advertising by lawyers. Certainly nowhere near as much as I’ve seen elsewhere. Thankfully.
I blogged some time ago about a variation on this theme, in which a now-defunct criminal defense corporation told the mother of a potential client that there was a 99% chance they could beat his case. It was an outright lie, in an warpedly inspired sort of way: if you promise results, you might be held to them, but if you say “99%” nobody can every prove you wrong.
Here in Houston we have a couple of hacks whose clients in the federal detention center refer people to them. (I am at a disadvantage because I don’t have enough clients who remain in custody.) I disapprove of what they do, and I think they’re ripping off the clients, but I don’t see them as stealing from me.
If a lawyer knows about the Weinsteins’ modus operandi, he should be able to inoculate his clients against it. If the Weinsteins can separate his clients from him, he may be doing something wrong (not unethical “wrong”, but suboptimal wrong). Maybe he’s not collecting enough money from the clients up front to give them a sufficiently vested interest in keeping your services? Maybe he’s not showing them how much better than the Weinsteins he know his stuff? The lawyer is a communicator; communicate.
While there’s merit in your points, it is a bit too simplistic to offer a real solution. Like you, I don’t find myself in a position where another lawyer “stealing” my clients presents a problem, but the phenomenon happens (even if you want to question the nomenclature) and Shawn’s angst about it is legitimate.
Even if you prefer to consider this problem from the client’s perspective, and ignore the lawyer altogether, raiding clients and using deceptive inducements is part of the reason why defendants find lawyers untrustworthy. This is bad for defendants, bad for the system and, yes, bad for honest attorneys who will not lie to potential clients to get their business. This is not the sort of thing to dismiss so quickly and easily.
Hanging Out A Shingle
Hanging Out A Shingle