At My Law License, Brian Tannebaum writes a provocative post (yes, everything he writes is provocative, but this one was also interesting) about second lawyers.

Or like the policy I want to talk about here, never being the second lawyer.

Yep, that’s mine.

I don’t want to be the second lawyer, for several reasons.

One, and most important, is that the majority of people who have a falling out with the first lawyer, will never be happy with any lawyer.

Many calls I receive from clients with Bar complaints begin with “I was the (second, third, fourth) lawyer on the case.”

Not everybody is cut out to be a second lawyer, but if you are, it can be a remarkably productive and satisfying status.

There are two types of clients who find themselves in need of the services of a criminal defense lawyer.  For lack of a better description, I’ll call them the professional and the amateur.  The former is engaged in a career that happens to be illegal.  He anticipates being arrested at some point in his career, and accepts it as a normal part of his career choice. 

He similarly is prepared for it, and that preparation includes knowing who to call when it happens.  He knows that it will eventually happen.  He’s not thrilled about it, but he’s not shocked or outraged.  There’s no crying in crime.  The criminal defense lawyer is just a anticipated cost of doing business.  Smart criminals prepare, putting aside funds and having the telephone number of their favored lawyer memorized.  They’ve met in advance, know Miranda by heart and can recite the magic arrest words in their sleep.

For the criminal defense lawyer, they’re a pleasure to work with.  Sure, their mothers and girlfriends, baby mamas and cousins may not be as easy, but the client is calm and appreciative, focused on the task at hand.  There are no crazy illusions/delusions about “justice.” Give them everything you’ve got, and they are prepared to deal with the consequences.

Then there are the amateurs.  Whether one-off criminals, the innocent or those who merely refuse to accept that they could every find themselves in the position of being accused of a crime, these defendants are completely unprepared for what they’re facing.  They don’t know how to be arrested (and keep their mouth shut).  They haven’t put aside money for a rainy day.  Their mind reels in fear of the unknown before them.  And they have no clue who to call.

Sometimes the initial reaction is denial; denial that it’s serious, or that it could happen to them, or that their vague and self-delusional vision of justice won’t save them.  For some, it’s a prayer to God.  For others, it’s a call to their cousin, neighbor, the guy at the grocery store, who knows a lawyer that does house closings, who knows a lawyer who was once an assistant district attorney. 

Maybe they eventually find themselves in the hands of a person who practices criminal defense, at least a little bit.  Maybe the lawyer sees easy money and takes the case despite not knowing where the courthouse is.  Usually, this lawyer’s fees are substantially less than what would be charged by a lawyer who understands and appreciates the work to be done.  Sometimes not. Sometimes, the fee is outrageously high, but not too often.

Even if the amateur manages to find his way to a criminal defense lawyer who is appropriate to handle the case, there’s a strong likelihood of sticker shock.  At the earliest stages of a case, defendants want to believe that the cop or prosecutor will realize the error of his ways, dismiss the case and apologize to the defendant for the inconvenience.  At worst, there will be a very strong tongue-lashing by the judge with an admonition to never darken his courtroom doorway again.  And life goes on.

Who wants to squander the family fortune over nothing?

It’s not until the reality sinks in, usually after arraignment on the indictment and the prosecutor’s motion to increase bail to several gazillion that it hits home.  This is for real.  It’s not going away.  It’s not a game.  It might cost a defendant a significant part of his life in prison.  His head explodes.

The defendant blames his lawyer.  Often, his anger is misdirected, blaming his lawyer because the lawyer is the most convenient target, the person who is supposed to protect him from the nightmare and failed.  Familiarity breeds contempt, and the defendant has gotten to know his lawyer and now despises him as the personification of a rotten system. 

Other times, the client comes to the realization that the savings on legal fees was a bad investment.  This is where the defendant realizes that the fee was for a quick plea of guilty, the lawyer’s plan being to get paid then graciously plead the defendant out at the earliest opportunity.  This wasn’t the defendant’s plan at all. 

Or perhaps the client, now having a slightly better understanding of what’s ahead of him, realizes that the story he was told just before he handed over the cash wasn’t exactly truthful.  There are no guarantees.  “Don’t worry” isn’t a defense. The lawyer told him what he wanted to hear, even though it bears little resemblance to his brutal reality.  What initially appeared warm and comforting now appears to be the road to the big house.

The call is made to the second lawyer.  The defendant and his family have done some homework to identify a lawyer that’s capable of providing the representation he seeks.  He understands that he desperately needs competent representation, that it will involve hard work and that hard work will be expensive.  He’s prepared to fight, and needs a lawyer capable of fighting for him.  The hiatus in purgatory is over and it’s time to get real.

When the call comes, it’s critical to identify which client is calling.  The most important question is why the defendant is calling, what it is about his current lawyer that compels him to seek new counsel.  If it’s misguided anger, and the lawyer is competent and has served the defendant well even though the defendant lays his anger at the lawyer’s feet, beg off.  Tell the defendant that he’s being well represented.  Tell the defendant that his lawyer is doing right by him, and that it’s not the lawyer’s fault that his expectations have yet to be achieved. 

Do this for three reasons. First, because it’s true.  Second, because clients sometimes just need reassurance when facing a situation they don’t truly grasp, that they haven’t made a grievous mistake.  If you believe in helping people, then this is your chance, despite it being contrary to your pecuniary interest.  And third, because you are a lawyer. You don’t mislead to get a case. You don’t mislead to take a case from another lawyer. And if you do mislead for a buck, the client will eventually recognize that you are doing exactly what his former lawyer did, and blame you for having misled him.

If you take this client on despite the fact that his former lawyer did nothing wrong, this will be the nightmare client.  This is the client Brian is talking about.  If you take this case, you deserve whatever happens to you.

When the client’s answer to this first, critical question informs you that he is, indeed, in desperate need of competent counsel, and you are fully capable of representing him and providing him with the legal representation he seeks, then take the case.  What he will see, and see almost immediately as you get to work undoing the damage of your predecessor and preparing to do the best possible for your client, is that he’s gone from the ridiculous to the sublime. 

The defendant will realize what a good lawyer can provide, and will have a palpable appreciation of your representation.  The difference between good lawyering and a quick buck grab is night and day.  Client’s may not have a firm appreciation of what it is lawyers do, but they can recognize hard wor
k, thoughtfulness, focus and skill.  Even if it should not prove adequate to get a dismissal or acquittal, they know that everything possible has been done for them.  They know that they have been well represented.

There is no client as appreciative of hard work than the client who is on his second lawyer for good reason.  Show this defendant what an excellent lawyer can do.