It was only a few days ago when Fresno criminal defense lawyer Rick Horowitz twitted in victory, that he had managed to do the near-impossible. He got the call that a suspect was in the hands of the police and, despite them denying they had him in their clutches, he was able to get there in the nick of time, say the right words, and prevent the interrogation that would have sunk any chance of defending. Rick was elated.
Alas, in this business, elation is short-lived. But here, it wasn’t at the hand of some crafty, scheming prosecutor or callous, haughty judge. The enemy turned out to be his own client and family.
I got my investigative team started, but I myself was face-to-face with everyone for too long. They were not happy that I did not see things their way. I “needed” to look at this, and this, and this. How could he be in danger of drowning, when such-and-such — a relatively minor fact that did not really assist his case at all — was true?
When I told them the things they were focusing on would not save him, they thought I did not believe in his innocence. This was important to him, even though I explained that it did not matter to me. I even tried to explain that it was my job to deliberately develop doubts about the case — the same sorts of doubts that a jury might develop — so that I could recognize the problems that needed to be targeted, where more investigation was needed. Part of my job is to question things as if I were a prosecutor, so that I can be prepared for those things which a prosecutor will ask a jury to question.
It’s not unusual to bask in the glow of success, enjoying the closeness of a battle fought and won. But the detachment that allows a lawyer to defend is undermined when that distance between lawyer and client is breached. Both client and family begin to feel flush with the small victory. They feel empowered. They feel brilliant. They feel that they are as much a part of the solution as the lawyer.
Rick had good reason to be proud of his effort. He managed something that is rarely accomplished. But as he realized just a bit too late, he let his guard down in the afterglow, allowing the client and his family to labor under the misimpression that their roles in this victory were conjoined, that their understanding of how to prevail was as worthy as his.
The lesson here is that the lawyer, no matter how much he cares about his client and how proud he is of his effort, can never allow the distinction between lawyer and his client to be forgotten. The lawyer is not a friend. The lawyer is not a family member. The lawyer is not “one of them.” He is the lawyer. He is the professional charged with representing a criminal defendant. Both the client and his family can never be allowed to mistake their respective roles.
It’s hardly unusual for a client or his family to tell the lawyer their view of the evidence, the severity of the case or the potential for conviction. It’s done all the time. Listen to them. Sometimes they offer an interesting idea. Once in a blue moon, they come up with a really critical point. Most of the time, they are completely off base. It’s “justice” as viewed through the facile eyes of a defendant. The talk is cathartic, and the attorney’s job is to explain why life doesn’t work the way they believe it should. No big deal.
But familiarity breeds contempt. Rick allowed his client to become too familiar, and they treated him contemptuously when he broke from the happy fold. It was a mistake that Rick won’t likely make again.
Hard feeling aside, however, Rick made one other mistake that can’t be chalked up to elation.
There is also the knowledge that, this time, there will be no pay-off. Not only will they likely not keep their word — no small part of our disagreements this week came out of my attempts to convince them that lying to your attorney is not a good thing, because it sends him off in the wrong direction and potentially costs him credibility with courts, opponents and jurors — to pay what is due of my fee, or even the investigative costs that accrued this past week, but there will be no thanks. There will be no good feeling that comes from saving a drowning person. This one is lost (at least to me and my team).
While familiarity can mistakenly happen in the glow of success, this problem should never happen. Rick trusted his client for his fee. Rick trusted his client to pay the expenses of his investigation. After all, happy clients are happy to pay. Until they become unhappy clients, at which time you can kiss the fee good-bye. Bye-bye, fee.
We are lawyers. We are not bankers, financiers, money-lenders. Retained counsel, by definition, perform a service for a fee. The variables in criminal defense are too great to be so naive as to believe that trust will suffice, that everything will work out in the end. Sometimes it does, but more often than not, it doesn’t. Sometimes it’s because a client simply can’t keep a promise made during a time of stress. Sometimes, a client’s devotion at the time of payment is less than at the time of promise.
There is a reason why criminal defense lawyers get their fee up front. There is a reason why expenses should always be advanced so that the lawyer isn’t left holding the bag at the end. While the familiarity lesson in client management must have stung, the finance lesson can be brutal in a tight economy.
The shame of it all is that Rick did such a great job for his client. The primary lesson is that in criminal defense, appreciation for the lawyer’s efforts is fleeting. Don’t count on love to cover all.