Client Centered Representation

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CHAPTER 3

BUILDING A RELATIONSHIP WITH YOUR CLIENT

One of the most important facets of the defense attorney’s practice is the ability to develop and foster a good relationship with her client. The energy required to build an advantageous attorney/client relationship is even greater for the public defender than it is for retained counsel. Our clients don’t choose us, they have little reason to trust us, and they have likely heard tales about the inadequacies of court appointed counsel. At best, our clients are often inclined to see us as far inferior lawyers to our retained counterparts. At worst, they are disposed to believe we don’t much care about them or their case. Some of the common beliefs our clients hold about us as public defenders, which create obstacles to our ability to build the attorney/client relationship, include the stereotype that 1) we are part of the system, 2) we do not care about them, 3) we are incompetent/we could not find another job, 4) we believe they are guilty, and 5) we will fight harder for them if they can convince us of their innocence. To overcome the attitudes our clients often have of us we have to demonstrate competence as attorneys, commitment to their case, and concern for their well-being. Earning the trust and confidence of our clients requires that we do our best to view the world from their shoes. It calls for us to have patience, compassion, and a dedication to developing the relationship. It requires positive interaction. It requires that we are always conscious of whether our behavior is reinforcing one of the stereotypes above or breaking them down. A healthy relationship will facilitate the representation of your client in many ways. It will make it easier for you to obtain reliable information from the client that can assist in every aspect of the case. It will instill in the client confidence in the advice you give thereby saving tremendous time and effort getting the client on board with a recommended course of action. It will minimize the client’s need to have you constantly reassure him that you are working on his case, a process that can otherwise be very time consuming. The time and thought you put into the development of your relationship with the client will also transform the client’s negative image of the public defender and allow him to realize that he has a zealous advocate upon whom he can count. While this last consequence may only be a psychological benefit to you as the lawyer, empowering the disenfranchised in our criminal justice system is a worthy aspiration standing alone. As vital as it is to our practice that we cultivate a productive relationship with our clients, very few of us devote the time and thought required to maximize our ability to do so. Some of us ignore the import of the attorney/client relationship. Even worse, others may view the client as a hindrance that makes it more difficult to do “our” work. The lawyer that holds this point of view creates an impediment to achieving a successful outcome in the case. More importantly that lawyer does a great disservice to the person he has committed to represent, his client. Developing your relationship with your client must begin with the first meeting. You must continue to nurture your relationship with your client in subsequent meetings. You must be cognizant of how your behavior outside the context of attorney/client meetings might impact your client’s perception of you and, therefore, your relationship with your client. We must view the process of relationship building with our clients as occurring at every

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phase of the case and with everything that we do in the case. This is necessarily a time-consuming and thought-intensive process. While the time it takes to develop a rapport will necessarily vary among clients, it will never happen immediately. Fostering this bond will take time on your part. In order to effectively forge this relationship you will have to appreciate your client’s perspective of you, the allegations against him, and the criminal justice system. Taking the time to familiarize yourself with your client’s attitudes in these areas will be time well spent. However, there are a couple of generalizations upon which you can likely rely. First, understand that your client will not likely take on faith that you are truly on his side. That is a trust that you will have to earn. Your client probably sees you, along with the prosecutor who is trying to send him to prison and the judge who ultimately might place him there, as an insider in “the system.” On the other hand, your client will certainly see himself as an outsider to that system. Until he identifies you as standing with him on the outside fighting those on the inside, he will be reluctant to trust you. This reluctance will impact the degree to which he cooperates with you on the preparation of his case and to which he relies on the advice you provide him. Second, consistent with the adage “you get what you pay for,” your client probably harbors doubts that you will really work hard for him. He’s apt to think you don’t really care about him or his case. He’s prone to be skeptical that you are doing any work on his case beyond the times he sees you in court or during attorney/client meetings. He almost surely assumes that you are paid by the case and therefore resigned to ultimately coaxing him to take a plea. This attitude will certainly undermine your ability to persuade him that a recommended course of action is really in his best interest. Therefore, demonstrating to your client that you are on his side and his side only and that you are committed to putting in the time and effort to which he is entitled is of paramount importance. Since your ability to earn your client’s confidence and respect will be the result of actions, not words, you will not completely earn the confidence and respect of your client during your first meeting. However, understanding that your client likely feels this way will allow you to begin to establish a mutually beneficial attorney/client relationship from your first meeting. The following are some things to consider as you begin the process of relationship building with your client and as you continue to develop that relationship. You must keep these things in mind from the outset of the case and consider them throughout. a. Know your trade, educate your client As you prepare to meet your client for the first time, keep in mind that what he is going through is likely foreign to him. Even people who have prior records can be very ignorant to how the criminal justice system works. The process is likely both terrifying and confusing to your client. Before you first meet with your client, do your homework. By demonstrating competence and knowledge at your first meeting with your client, you will do much to ease his mind. You will be responsible for ensuring that your client understands the charges against him, the possible penalties, and potential defenses. Explain the attorney/client privilege and the importance of his not speaking to anyone about the facts of the case without first consulting you. Provide your client with the names of people who may be contacting him

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on your behalf. Obtain copies of any reports or documents available, such as police reports and charging documents, and review them with your client. It is your job to ensure that your client knows the procedural progression of the case and the law governing upcoming hearings. Explain to him what he can expect at the next hearing and what will happen thereafter. As best you can, give him a timeline so he understands the potential life of his case and the chronological order of important events. For clients who are incarcerated, make sure you are familiar with the legal criteria for determining pretrial release and the various pretrial release conditions your client may expect if released. You should also be familiar with procedures available for reviewing a bail determination. As the case develops you must also keep client abreast of any legal issues relevant to his case and factual developments as they occur. By doing all of these things, in addition to fulfilling your duty to your client to provide him certain information, you will begin to demonstrate your competence as a lawyer. The greater your command of law and procedure, the more headway you will make towards establishing your client’s confidence in you. However, it is not just what you say and what you do that will shape your relationship with your client. How you “say and do” will be equally important. Keep in mind the message you send your client from your words and deeds.

b. Show your client that you are willing to presume he is innocent . . .

As you work to convince your client that you are on his side, you must remain conscious not to convey the message that you think he is guilty. Your client will likely initially see you as another person in the system who does not believe in him. He will see you as an insider who he will have to convince of his innocence. He probably holds the attitude that you will work harder for him if you believe in his innocence than if you think he is guilty. You must work to help him realize that how hard you fight for him is independent of his guilt or innocence. However, until that time comes, there is a great risk that your client will withdraw from the relationship if he senses that you assume he is guilty. At first blush, there can appear to be a tension between your desire to learn everything that the client knows and your ability to appear as though you don’t assume he was involved in the alleged offenses. How do you solicit from your client names of witnesses without implying that you believe he was present at the crime scene? How do you ask your client about physical evidence without insinuating that you think he was involved? Keep in mind that your goal is to get the information. You don’t need an admission from your client to do this. A technique that will allow you to elicit the information you need, without making the client feel that he has to make an admission to you, is by simply rewording the question. Rather than asking, “who saw you do this?” consider asking, “who will say they saw you do this?” Instead of “in which pocket did the police take the gun?” ask, “in which pocket will the officer claim he found the gun?” Built into your question is an assurance that you don’t necessarily credit these witnesses.

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This technique will allow your client to give you the information you need, if he knows, without admitting his involvement. To the first question he may respond, “man, I think it’s that dude Junebug who is trying to say I did it, me and him never got along.” To the second question he might answer, “that lying cop is saying the gun was in my inside coat pocket . . . that guy is always trying to set someone up.” Notice that these answers provide you the information you need without requiring your client to admit his guilt to you, a stranger who he has no reason to trust at this point. Equally important, it allows you to seek the information you desire without appearing to have assumed his guilt. It leaves the client an out so the he need not choose between giving you accurate information and maintaining the appearance of innocence – something he may feel he needs to do at this stage to ensure that you advocate zealously for him. While you must seek to assure your client that the zealousness of your advocacy will not be impacted by any personal opinions about his guilt or innocence, it will take time before your client is convinced of the sincerity of your pledge. At least until that time, you must avoid sending the message that you believe the allegations against him.

c. . . . while you ensure your client that how zealously you advocate for

him is independent of your personal assessment of his guilt or innocence

That your personal assessment of your client’s guilt or innocence is independent of how zealously you advocate for him is axiomatic to your role as a criminal defense attorney31. You must believe this and you must work to convey this to your client. Your client must come to believe this if he is to maintain confidence that you will continue to zealously advocate for him as the evidence against him develops. Consider explaining to your client at the outset that determining whether he did the things with which he is accused is not your role. You should explain to your client that your role as his lawyer is not to attempt to determine guilt or innocence. Let your client know that whether he did the things he is accused of or not, your sole mission in this case is to help him reach an outcome that he desires. Along these lines, consider explaining to your client that if there is a trial, whether or not he is guilty will be determined by the fact-finder’s assessment of the evidence presented. Therefore, you must figure out what evidence will be presented by the government and the strengths and weaknesses of that evidence. Explain that what actually happened may or may not be accurately presented through the evidence. Make clear that you personally have not drawn any conclusions about what actually happened and that your opinion in that regard is irrelevant. Therefore, your sole concern is with the evidence

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I go even further in my practice and refrain from making a personal assessment of guilt or innocence. I assure my clients that I will make no such personal assessment. I explicitly let them know that what they may have done is irrelevant to me. What is relevant is the evidence that they may have committed the charged offense and my assessment of how that evidence will be viewed by the fact-finder. I assure each client that whatever I learn about the evidence in the case, I will do everything in my power, within the bounds of the law, to achieve an outcome that they deem desirable. The bottom line is that the defense attorney’s opinions about guilt or innocence are irrelevant. Since it would be antithetic to our role as defense attorneys to consider a client’s guilt or innocence when deciding how zealously to advocate for him, there is no benefit to doing the mental exercise of trying to reach a conclusion in that regard. There is a great risk however. Once convinced of a client’s guilt there may be a temptation to allow your opinion to impact your advocacy.

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that is available and your assessment of how the fact-finder will view that evidence. Explain that a witness who is not being truthful, but who comes across as honest and reliable, must be cause for concern. Likewise, a truthful witness, who has credibility issues that render him unbelievable, might not help the government make its case against him. By having this conversation you can begin the process of discussing damaging evidence as concerns that you and he must consider without your client feeling you have personally formed an opinion about the quality of the evidence and, therefore, his guilt. You should use subsequent meetings to help your client understand that what the evidence might suggest to the fact-finder is your sole focus. Refrain from expressing your beliefs about the evidence and instead discuss your opinion about how the fact-finder will view the evidence. Assume you interview a very reliable, disinterested government witness who knows your client well. The witness is confident that she saw your client commit the charged offense. When you meet with your client to discuss what you have learned think about how you will characterize this evidence. Resist saying, “the witness saw you commit the crime and she sure is believable.” Consider saying, “this witness will say that she is confident that she saw you commit the crime.” You might add, “in my opinion this witness is going to appear very credible to the jury.” You may want to throw in, “this is a problem we need to consider.” Now you can discuss this witness and how she might impact how you and your client proceed without conveying that you personally think she is telling the truth or that your client is guilty. By discussing evidence in this manner you also reinforce your earlier assurance to the client that your concern is the evidence and how it will be perceived by the fact-finder, not your personal assessment of the quality of that evidence. As another example, imagine that you receive laboratory results from the government indicating that DNA found at the crime scene matches a DNA sample from your client, very damaging evidence given that until this point your defense was likely mis-identification. It is not necessary to say to your client, “your DNA was found at the crime scene.” This suggests that you are now convinced of his guilt, something that you have explained to him is irrelevant to how you carry out your duties as his lawyer. Rather consider having the following discussion:

The lab results indicate that DNA found at the crime scene matches your DNA. With this evidence it is going to be very difficult to convince a jury that you were not at the crime scene. We have to really reconsider whether sticking with a mis-identification theory is the best strategy. Let’s talk about your options in light of this evidence.

The client invested in your believing in his innocence may continue to insist that the lab results are wrong. Avoid having a discussion about the accuracy of the results. It could appear that you are convinced of your client’s guilt due to these results. Such a discussion is not necessary. Consider responding to his assertions as follows: I don’t know if the lab results are right or not. What is important to me is how these results will be viewed by the jury. We can look into whether an expert might disagree with these results but, if we are unable to find one, we have to deal with this evidence. I fear that it will be very difficult to

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convince a jury that the DNA at the crime scene did not come from you. Therefore, we need to discuss our options.

Using this technique you can have the same discussion about the impact of the evidence without implying that you personally have drawn any conclusions based on it. By relating to your client this way you will reinforce your pledge that you are on his side and that you will not waiver from that position in the face of harmful evidence. This will allay his concerns that you a re constantly trying to figure out if he is guilty and that the zealousness of your advocacy will depend on your conclusion. This will allow you to earn your client’s trust and allow him to consider your advice without skepticism that you may have an ulterior motive other than his welfare.

d. Do you really want to ask you client what happened?

As should be apparent from the discussion in the above two sections, you should avoid having a conversation with your client about what he claims happened, at least until you are sure you have sufficiently developed a relationship with him. While there is disagreement among defense attorneys about whether we should ever ask our clients to tell us what happened, it is certainly an unwise strategy early in the development of our relationships with our clients. There is little, if any, benefit to making this inquiry early on, if ever. There are serious dangers to forcing the client to commit to a version of events prior to establishing a relationship with his lawyer. The thoughtful defense attorney should consider techniques for obtaining the information she needs, without putting the client in this position. Our clients have little reason to trust us when we first meet and have no way of knowing how the information they provide will affect the zealousness of our representation. As discussed above, initially your client likely believes that the energy you put into getting him out of his predicament will be directly related to your belief in his innocence. Therefore, when you first meet your client, if given the opportunity, the client has a great incentive to try to paint a picture of innocence for you. This is true both with respect to the factually guilty client as well as the innocent client. With respect to the innocent client, there is some version of facts out there that point to his guilt. Otherwise he would not have been arrested. There is a risk that the innocent client will lean towards “fudging” the facts to more clearly paint a picture of his innocence. Either way, there is a strong likelihood that if forced to give you a version of events at that first meeting, it will not be an accurate version. The dangers inherent in this conclusion are obvious. First, you will likely be relying on unreliable information as you begin to prepare your client’s case. Second, your client may become wed to this version. As you learn new information that suggests your client’s initial version was inaccurate, your client may develop a stake in convincing you that he did not lie to you initially. He may fear that once he loses your trust you will cease to zealously advocate for him. You may find yourself in a predicament where your client insists on you pursuing an untruthful account of events that are inconsistent with the developing evidence. By insisting on your client providing you a version of events at the initial meeting, you may cause your client to commit to an untruthful account that you will have difficulty

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getting him to retract. You may also negatively impact your ability to acquire truthful information from him in the future. For example, suppose you represent a client who is charged with a shooting. In fact your client did shoot the complainant but did so in self-defense. At the first meeting you ask your client for “the truth.” He insists that he was not present when the shooting occurred and the witnesses are mistaken about the shooter’s identity. He tells you he doesn’t know who any of the witnesses are since he was not present. As you begin to learn more information that suggests that your client has a strong self-defense claim you discuss this option with your client. Your client may be so wed to his first story, and afraid that you will think he is a liar, that he continues to insist that he was not present. By asking him to tell you what happened at the first meeting you have caused your client to be committed to an untruthful account that is not your best defense theory. You have also eliminated your client as a source of useful information. Although in reality he likely knows who was present at the time of the shooting, because he is wed to his initial version he may continue to insist that he does not know who the witnesses are. In order to assure that you avoid this dilemma, you may want to affirmatively keep your client from committing to a version of events at the initial meeting. If you are going to have that discussion at all it may be more productive once you have developed a relationship with your client and after you have both had a chance to evaluate the evidence against him. However, in order to avoid getting in the predicament described above, you may consider having the following discussion with your client at the first meeting:

We have discussed the attorney/client privilege and what that means. For one thing, the attorney/client privilege means that you are not stuck with anything you have told me. Unlike other people, I can not be forced to reveal discussions we had about the case. Therefore, if you ever tell me something, and later find it necessary to change what you told me, you are free to do that. I understand that there are many reasons why you might tell me something that is inaccurate and that you may later want to change. I understand that we have not developed a relationship and that you may not trust me right now. I also understand that people can remember things differently as time passes. Whatever your reason for needing to tell me something different from what you may have said before, understand that you maintain that flexibility with me. Having said that, I don’t want to talk about what you remember happening just yet. What I’d like to do is to read the affidavit in support of the arrest warrant to you so you have an idea of what the government is saying happened. Understand that some of what the government says may be untrue. But I still want to make sure you know what they are saying happened because that is what we have to deal with. After I read you the government’s version, I want to talk to you about who you think the government’s witnesses might be and reasons why you think they might be saying what they are saying. It is very important that we locate and interview all of these witnesses. It is especially important that we find the most damaging witnesses even if they are lying. By

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finding them and talking to them, they may say things that will be different from what they say at trial. Then we can show they are lying. It is also important that we learn as much as we can about any bad evidence against you because we want to think of ways to try to keep that evidence out of the trial. The sooner we learn about bad evidence and damaging witnesses, and the more we learn about them, the better prepared we can be to try to keep that evidence out of the trial. It will be much harder to keep the evidence out of the trial, or show that it is unreliable, if we learn about it later rather than sooner. So I am really going to need your help in trying to figure out who these witnesses might be and why they would be saying what they are saying.

This conversation achieves several objectives: 1) it helps the client to understand that he is not wed to anything he tells you should he happen to give you unreliable information that he later wishes to correct; 2) it allows the client understand that the focus of the discussion about the evidence is on what the government is alleging, regardless of the truthfulness of the alleged facts, and that you don’t necessarily credit that evidence; 3) explains to the client why it is important for him to help you learn what the evidence against him may be. This will make it easier for your client to talk about the damaging evidence without feeling defensive. He will better understand that he can provide you witness names, and discuss the evidence against him, without conceding that the government’s theory is accurate. He better understands that you will not draw any conclusions about the accuracy of this evidence based on your discussions with him. This will greatly enhance you ability to have your client provide you useful information.

e. The “plea” discussion

One undercurrent that usually exists in every case you will have is that the client wonders if you will try to force a plea on him. Some clients will be more overt about their suspicions than others. However, most, if not all, clients who are appointed a lawyer that they do not know, either from past experience or reputation, are concerned that they have a “plea lawyer.” Deal with this issue during your first in depth meeting with you client. Let your client know at the outset that inevitably there will be a plea offer made and that it will then be your duty to tell him what it is. Tell him that does not mean you think he should take a plea. Then assure your client that you are willing to try his case and that you will be preparing for trial unless and until he tells you to do otherwise. There will inevitably come a time that the government gives your client a plea offer. At that point you will have to have a discussion with your client about that plea. The further into the case you are when the discussion occurs, the greater the chance that it may appear that you are trying to push a plea on him based on your assessment of the evidence. Your client will wonder why you are now, all of the sudden, talking to him about a plea. If your client suspects that you are afraid to go to trial or that you want him to take a plea because it will make your life easier, he will never follow your advice regarding a plea. Every client wants to be assured that he has a “trial lawyer”. Consider laying the groundwork for that inevitable discussion at the initial meeting in the following manner:

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Mr. X, do you know what a plea offer is? It is where the government agrees to let you plead guilty to a less serious offense and in return promises not to go forward with the more serious charges. Now Mr. X there are some lawyers who are considered “plea lawyers”. They try to get their clients to take plea offers because they don’t want to go to trial. Mr. X, I AM NOT ONE OF THOSE LAWYERS. I do this work because [I like fighting for folks who otherwise wouldn’t be able to afford a good lawyer], [I don’t like the way the government goes after people and I like fighting them], [any other reason]. I like going to trial and unless you tell me to do otherwise, I am preparing as though we will go to trial. However, understand that at some point the government is going to come to me with a plea offer for you. This offer is not mine, it is yours. It is my job to tell you what the plea offer is when one is made. So, at some point I will have to come to you to tell you that the government wants to offer you a plea. When that happens, do not think that I am trying to get you to take that plea. It is my duty to you to tell you when the government makes you a plea offer. When that day comes, if you want to discuss the plea offer, I will be glad to do that. If you don’t want to, simply tell me that you have no interest and we will continue to prepare for trial. You can always come to me at any time if you want me to look into a plea offer for you but until that happens I will be preparing for trial.

By having a discussion like the one above you will help to prepare your client for the inevitable day when you will have to relay a plea offer. You will increase the chances that when that day comes he will not assume that you are trying to force a plea on him because you are discussing a plea with him. You have also assured him that you are willing and preparing to go to trial and helped him understand that your willingness to go to trial is not inconsistent with your duty to relay a plea offer to him. Sending your client the message that you are willing and preparing to go to trial, a message you should reinforce throughout your relationship with your client, will surely instill confidence in him even if he ultimately wishes to take a plea.

f. Show concern about your client as a person Another factor you must overcome is that your client will likely see your world as one that is completely disconnected from his. This view will enforce his notion that you and he are on different sides of the criminal justice divide. While you and your client likely come from very different backgrounds and mostly experience dissimilar life experiences, you likely share some commonalities. Show concern about the things that are important to your client and demonstrate an interest in learning who your client is. Take the time to ask about his family, his interests, and his life experiences – obviously being sensitive not too overstep your bounds by delving into sensitive areas too early in the relationship. Make sure to follow up these discussions by continuing to touch on these areas throughout the relationship. For example, if your client tells you his mother is ill, think to ask about his mother at future meetings. If he tells you he is a Georgia Bulldogs fan, comment on a recent game at some future visit. This technique conveys to your client that you have an interest in him as a person. g. Be Yourself!

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Another obvious issue that will likely alienate your client from you is that you are a lawyer and he likely is not. He probably sees you as a member of a professional class with which he can’t identify. This difference almost certainly also adds to his doubt that you can identify with him. Be cautious not to exacerbate the perception of this divide by speaking in legalese or talking “like a lawyer.” Be yourself! Talk to your client the way you talk to any regular folks you meet on the street. Just as you don’t talk to the clerk in the grocery store in a manner that conveys that you are “above” him, don’t do so with your client. Some lawyers think that language will convey that you are a professional and thereby comfort your client. Most of our clients are not that shallow. You will have to convey professionalism through your work and not your words. Having said that, be equally careful not try to be something you are not because you think that is what will connect you to the client. Don’t try to feign an accent or speak slang if that is not who you really are. Our clients will see through the veneer and lose faith in the relationship which will begin to appear dishonest. Again, be yourself!

h. Be mindful of differences

Be conscious of differences between you and your client such as race, gender, age, sexual orientation, and culture. Do not assume you can predict how these differences will impact your client. Some clients will have concern about having a young lawyer. They will assume youth means lack of experience. Others may feel that older lawyers are more likely to be burnt out or cynical. Many of our clients harbor biases and prejudices about race, gender, and culture, although we may be surprised at which way these feelings cut. Calling an older client by his first name may strike the client as disrespectful. Comments about religion can be offensive to some clients. Do not presume to know a client’s sexual orientation or how comments along these lines may touch your client. How a client reacts to you based on these differences will vary from case to case. You must be sensitive to the potential for these differences and deal with any issues as they arise. i. Be sensitive to potential limitations Many of our clients have limitations that are not obvious. Be sensitive to cognitive limitations that might be based on your client’s age, mental health, or educational limitations. Be sensitive to potential issues surrounding emotional or physical abuse your client has suffered. Do not assume your client understands basic concepts. Sometimes a client may nod as you speak to convey that they understand you when, in fact, they are sensitive to their own limitations and embarrassed to reveal them. Some of our clients are illiterate. Explore that possibility before asking a client to read a document. Make certain to obtain mental health, neglect or special education records where they exist. Understanding your client’s history may help you to communicate with him. It may also be of assistance in preparing your client’s case for trial or sentencing.

j. Never make promises you can’t keep / make some that you can

Few things will cause your client to lose confidence in you more than for you to make him a promise that you don’t keep. Your client is probably looking for you to prove that he can trust what you say. Any promise you make, no matter how small, that you don’t

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keep, will hinder your efforts to earn that trust. Given the unpredictable nature of the work we do, there is very little you will be able to promise about the case. This is certainly going to be true with respect to the issues that will initially matter most to your client: can we win this case? Will you get me released? Resist the temptation to promise a desirable outcome because you think it will help you gain the client’s confidence. If you can’t follow through with the promise the long-term damage to the relationship will far exceed any perceived short-term benefit. If you do feel certain of an outcome there is no downside to saying, “I am as certain as I can be that X will occur, but given that this outcome depends on some forces beyond my control I need to stop short of making you a guarantee.” By couching your prediction in this way you have protected yourself from going back on your word should the unexpected occur. The flip side of this coin is that few things will earn your client’s trust more than following through on promises that you know you can keep. Promise to visit your client at the jail by a certain date and make sure to follow through. Ask your detained client if you can call anyone for him to let them know how he is doing and then be sure to do so. Let your client know that you will bring him certain documents or look into a specific issue for him and keep your word. These token gestures will slowly earn you the trust of your client and help to build your relationship with him.

k. Keep your client updated and maintain regular contact

One issue that can be most concerning to a person who is appointed an attorney is that the attorney will have more cases than she can handle. Your client will surely harbor doubts that you will give his case the care and attention it deserves. Until your client is dispelled of this notion, his attempts to ensure that you are giving his case adequate attention can really impact your efforts to manage your time. This is especially true with a detained client. The client who does not have confidence that his lawyer is working on his case will turn to others for advice about what should be done on the case. Many of the people from whom the client will seek advice will be his incarcerated colleagues or others equally untrained in the law. Your client will then bombard you with calls to see if you have done those things. Much of the advice may not be productive or may not be relevant to your client’s case. You will now have to spend extra time explaining to the client either why the requests may not pertain to his case or why it would not make sense to pursue those tasks. You will be in a position of having to change your client’s mind, an endeavor that will vary in time consumption depending on how set your client is on having these tasks accomplished and the degree of confidence he has in you as a lawyer. Other requests may relate to tasks that, while you are sure will not reap a positive contribution to the case, you are unable to convince the client that they are not worth the time. Your inability to talk the client out of pursuing these tasks will be directly related to your client’s lack of confidence that you are adequately preparing his case. Your client’s decision to turn elsewhere for advise on how his case should be prepared will often be the result of his not having confidence that you are sufficiently focused on his case. His insistence that you spend time on tasks that are not productive, despite your advice, is likely because he does not have trust that you are invested in his case

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and seeks reassurance that you will put in the requisite time. Your client needs to be convinced that his case is a priority for you. The energy you will spend trying to undue damage that has resulted from your client’s skepticism about your commitment to his case will surely exceed that which you could have spent preventing this problem from occurring. Two things you can do to prevent the fallout described above are to maintain regular contact with the client and to keep him apprised of developments in his case. In every case there can potentially be stretches of time in which not much is happening. If your client neither sees not hears from you during these stretches he can begin to wonder why he hasn’t. To the client, his case is likely the most important event in his life at the time. Thinking about the case may consume him. He may not understand why it does not equally consume you. Just knowing that you have not forgotten him can go a long way towards helping him understand that a decrease in activity on his case is a function of the course of the case’s life and not of your commitment to his cause. Regular meetings will certainly help your client understand this. For detained clients, consider putting aside a few hours every couple of weeks to check on all of your detained clients. You can often achieve this with one visit to the jail. Spend fifteen minutes with each client just to say hello and see if they have any concerns you might address. This “reminder” that they have not fallen off your radar screen can really help you avoid the issues discussed above. For clients who are not detained, give them regular calls inviting them to meet with you to discuss any concerns they might have. Most will not take you up on the invitation, but the thought alone will help them understand that you are thinking about them and their cases. Along these lines, keep your client apprised of developments in his case. During these regular visits discuss with him any investigative efforts that have been made since you last met. Even if you can only relay that you have made three trips to a certain witness’ home and they were not in, this shows that you are working on the case. During your regular visits reassure your client that you looked into a legal issue that you may have previously discussed. Consider bringing him a case or two that relates to the issue. Leaving a client with tangible items such as paperwork will serve as a reminder that you are working on the case. Even if you simply relay to your client that you called his mother as he requested to tell her he was thinking about her and she wanted to pass along that she is also thinking of him, this will go a long way towards cementing your relationship.

l. Show that you are a fighter

How you acquit yourself outside of client meetings can equally affect how your client relates to you. Many of our clients believe that court appointed lawyers are afraid of judges. They believe that our incomes depend on our maintaining a good relationship with judges. They have concern that we are unwilling to fight for them before judges. Telling your client that you are a fighter will not do the trick. You must show him. The bright side is that this

58

is easy to do. Most of our clients aren’t evaluating the legal rationale of every argument you make in court. They are looking to see if you are assertive for them. They want to be convinced that you are not timid in court. Do not pass upon an opportunity to advocate for your client. This is especially true when the relationship is new. The stakes are increased significantly when the argument has to do with the client’s release. Bond hearings are ideal arenas to prove to your client that you will fight for him. There may be times that it is obvious to everyone in the courtroom that your client is going to be denied bond, or given a bond he can’t possibly make. You may be at a loss for an argument that will change the judge’s mind. SAY SOMETHING!! Say it forcefully. Say it as though your client’s release is the most important thing in the world to you (it should be at that moment). Even if your arguments cause people in the courtroom to laugh at you, your client will be impressed with your willingness to take on anyone who wants to deny him his freedom. You should rarely, if ever, submit without argument, and never submit when it comes to your client’s freedom. Even if your argument is short, make it. Even if the judge knows that the only possible reason for your argument is for the benefit of your client, say something. A submission indicates to your client that you are not a fighter. You can try to explain later that there were not arguments to be made or that the result was a foregone conclusion, but your explanations will never achieve what a two-minute argument before the judge would have.

m. Be conscious of how you relate to others around your client

One thing about which our clients are most concerned is that we are part of a system that wants to take their life from them. They imagine that we hang out with the judges and prosecutors who they see as responsible for their predicament. They see us all as part of a clique that has little concern for them. This view obviously impacts their confidence in our willingness to fight for them. To avoid adding to your client’s concerns in this regard, be conscious of how you relate to others around your client. Obviously as lawyers we need to be professional. This necessarily includes having professional relationships with everyone associated with the criminal justice system. Some of us may even have personal relationships with judges, prosecutors, and others in the criminal justice system. Be considerate about how you conduct your personal relationships with those in the system who your client identifies as his opponents. Don’t let your client, or his family, hear you discuss personal plans with a prosecutor on your client’s case or a law enforcement officer who was involved in the arrest of your client. There may be times when after a contentious court hearing the prosecutor approaches you to shake hands. Consider letting the prosecutor know that, while it is not personal, you are uncomfortable shaking his hand in front of your client or his family, who may be in court. This may help to avoid a situation that causes your client to question “whose side you are on.”

59

Another option may be to have a discussion with your client about how you interact with judges and prosecutors as a professional. Explain to him how maintaining a professional relationship with these people may help you achieve positive outcomes for your client. Reassure him that these relationships in no way impact your commitment to him or his case. While there are various methods for handling these situations, it is important that you remain conscious of how your relationship with others in the criminal justice system may be perceived by your client and that you take steps to avoid potential fallout.

n. Dealing with an abbreviated initial meeting

You will begin to accomplish much of what has been discussed above in the initial meeting with your client. Ideally this is a meeting without time constraints. However, for many of us, a private meeting without time constraints is not possible when we first meet our clients. For those of you who meet your clients for the first time in court, soon before you are to appear before a judicial officer, do not let the hurried nature of that first meeting throw you off. You do not want your client to lose confidence in you because you seem frazzled and nervous. You will obviously be hampered in your ability to develop your relationship with your client at this meeting since you may only have ten or fifteen minutes with him. Much of what has been discussed in this memo will have to wait until you have a more in-depth meeting with your client within the next day or two. Stay focused on what you ultimately need to accomplish in that meeting: 1) acquire any information that is necessary for that first day in court, 2) make sure your client has an understanding of what is happening that first day and when he will have a chance to talk to you at length. Your client likely has many things he’d like to talk about that day. He may want to blurt them all out. You will not have time to answer all of his questions at this short meeting. You must control the meeting. Let you client know what you need to focus on at that meeting, explain why it is important that you get the information you need from that meeting, assure him that you will meet with him soon to discuss the case in much more detail, and tell him when that next meeting will be. You want to make sure your client understands the attorney/client privilege and that you explain to your client that he should not talk to anyone about the case. Make sure your client knows what he can expect to happen in court today. Tell the client that during this meeting you need to concentrate on getting information necessary to deal with the immediate task at hand, which is likely his release. Explain to the client that you are very interested in what he has to say and that you have a lot more that you need to talk to him about, but that you have very limited time right now. If you are not alone with the client explain the dangers of speaking in that setting, which can easily be done in the context of explaining the attorney/client privilege. Promise that you will meet with him within a certain period of time and at that meeting you will listen to everything he has to say. The time frame you set will vary with the circumstances but should never exceed 48 hours. WHEN YOU TELL YOUR CLIENT YOU WILL SEE HIM BY A CERTAIN TIME, KEEP YOUR PROMISE!!! An example of a possible introduction leading into a discussion of information needed that day follows:

60

Mr. X, I want to introduce myself to you. My name is ______________, and I am going to be your lawyer. I want to give you this card [hand client a business card] that has all of my contact information. Keep this card with you so you always know how to reach me if you need to. The first thing I want to discuss with you is something called the attorney/client privilege. Do you know what that means? [allow your client to try to explain if he wants to]. That means that you and I have a very special relationship. As your lawyer, you can say anything you want to me and I am not allowed to tell anyone what you tell me without your permission. It is very important that you understand this because you also need to understand that you don’t have that same privilege with anyone else. You don’t have it with the guys back here who you’re locked up with, you don’t have it with your girlfriend, you don’t have it with your family. If you say anything about this case to anyone other than me, or around anyone other than me and they hear you, they can be forced to come to court to testify about what you said. It is important that you take this privilege seriously both to protect you, and the people you care about. It protects you because you can talk about whatever you want to with me and know that it goes no further than us. It protects your loved ones because if they are ever forced to testify and asked if you ever said anything they can honestly say, “No, he told me if I want to know about the case I should call his lawyer.” So if anyone asks you about this case, tell them that your lawyer instructed you not to talk about the case and that they can give me a call. Do you have any questions about that? Now for the reasons I just described, I want to make sure we don’t talk about the facts of your case with all these people around. I want to wait until we have some privacy. So I don’t want to discuss the facts of your case right now. Also, we don’t have much time to talk today and I really want to focus on the things that will help us get you out of here today. We need to meet tomorrow so we can discuss your case in much more detail. If you are released today I ask that you come to my office. If you are not released today I will come to see you tomorrow. Now, let’s turn our attention to what will happen today. Today’s hearing is called a first appearance hearing, have you ever heard of that . . . [have a discussion to make sure your client understands what today’s hearing is and what issues are decided at that hearing]. After his hearing, if you are released we will wait to see if the government indicts you, and we will discuss that whole process tomorrow. If you are not released your next hearing will be a preliminary hearing, and, if we need to, we will discuss what that is tomorrow. Today I really want to focus on information I need to argue for your release today. Any questions before we get started? [start discussing information relevant to his release] . . . . . . Any questions about any of that? OK, is there anyone I can contact for you if you are not released – family, employer, etc.?

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This is a very hurried discussion, as dictated by the circumstances. However, note several things you have accomplished: 1) you have conveyed the information to your client that he needs to know today: that he should not talk to anyone about his case and what the process will be today, 2) you have explained to him why you have to limit your discussion to certain information and explained that information is necessary to achieve what is likely his primary objective, his release, 3) you have promised to meet with him by a date certain and to have a much more in depth discussion at that time, 4) you have conveyed that you are competent lawyer by explaining legal concepts and procedures, and by appearing confident and organized, 5) you have given him a chance to ask questions although you’ve limited the conversation to the task at hand, and 6) by asking if you can contact anyone for him you have both shown that you care about him and you have begun the process of making promises that you CAN keep – perhaps the first building block in your relationship. Now, go to court with him and show him you are a fighter! You will be well on your way to building a good relationship with your client.

THE HIGHEST CALLING: CLIENT-CENTERED

REPRESENTATION AND THE ROLE OF THE DEFENSE LAWYER

Jonathan Rapping Atlanta’s John Marshall Law School /

The Southern Public Defender Training Center

*** ABA/NACDL National

Defender Training Program Atlanta, GA 2011

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Cameron Todd Willingham

• “There were no grounds for reversal, and the verdict was absolutely the right one… Shit, it’s incredible that anyone’s even thinking about it.”

• “Most of the time they’re guilty as sin”

Eddie Joe Lloyd

“This is a sick individual who raped, kidnapped and strangled a young woman on her way to school. His claim of my wrongdoing is frivolous, just as is his existence. Both should be terminated”

When we walk past a person in need – indifferent - we lose a little bit of our humanity

• The role of the Defender differs from the role of the prosecutor . . .

• Understand the difference . . .

• Most prosecutors DON’T

The Defense Function

The Defense Team

Represents one person only . . .

THE CLIENT!

ABA Standard 4-1.2(b):

The basic duty defense counsel owes to the administration of justice and as an officer of the court is to … …serve as the accused counselor and advocate with courage and devotion and to render effective, quality representation.

ABA Model Rule of Professional Conduct

Our “responsibility to a client requires a lawyer to subordinate the interests of others to those of the client…” * Rule 4.4 [Comment]

The Prosecution Function

The prosecutor does not represent an individual … … his/her duty is to seek justice Berger v. U.S., 295 U.S. 78 (1935)

ABA Standard 3-1.2(c):

The duty of the prosecutor is to seek justice, not merely to convict.

ABA Model Rules of Professional Conduct

Prohibit a prosecutor from proceeding on a charge that the prosecutor knows is not supported by probable cause. Rule 3.8

[A]n advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go on reckless of the consequences, though it should be his unhappy fate to involve his country in confusion.

-- Henry Lord Brougham

Client-Centered Representation IS:

Acting as an agent for the client to effectuate the outcome or results that the client desires AFTER advising the client about :

* legal aspects of the case * factual information learned by the defense

team * the various options and strategies available

to the client and the pros and cons of each

#1

LOYALTY TO THE CLIENT

Central to the work of any criminal defense attorney is the duty to provide the “zealous and loyal [representation] required by the Sixth Amendment.”

Nix v. Whiteside, 475 U.S. 157, 189 (1986)

“Indeed, . . . the highest claim on the most noble advocate [is] fidelity, unquestioned, continuing fidelity to the client.”

Young v. United States ex rel. Vuitton et Fils

S.A., et al., 481 U.S. 787, 804 (1987)

The lawyer’s “duty of loyalty [to the client is] perhaps the most basic of counsel’s duties.”

Strickland v. Washington, 466 U.S. 688 (1984)

#2

ZEALOUSLY ADVOCATE

THE CLIENT’S CAUSE

* From this duty of loyalty “derive[s] the overarching duty to advocate the client’s cause.”

* The lawyer’s “function is to assist the client”


“[The 6th Amendment] speaks of the ‘assistance’ of counsel, and an assistant, however expert, is still an assistant. The language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by the Amendment, shall be an aid to [his/her client].” Faretta v. California, 422 U.S. 806 (1975)

CLIENT CENTERED REPRESENTATION IS NOT…

• Substituting our judgment for that of

the client’s • Doing what we believe is best for the

client IF the client disagrees

Defense Attorney as Advisor

We (can/should) (advise/encourage/persuade) the client regarding our opinion about the best course of action, BUT ultimately must respect the client’s wishes.

#3

AThe lawyer shall provide competent representation to a client …

Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

ABA RPC 1.1

#4

A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions

regarding the representation, shall keep the client reasonably informed about the

status of matters and shall promptly comply with reasonable requests for

information.

ABA RPC 1.4

ETHICS SPECTRUM

CYA SAVE CLIENT

You Try It…

Example #1 Assume that you are appointed a new client, Mike Client, who is charged with distribution of cocaine. As you prepare to handle the initial hearing, which will include a bond determination, you meets Mr. Client in the courthouse cellblock. During this initial interview, you ask Mr. Client if he has ever been convicted of any crime before. Mr. Client replies that he has two prior convictions for distribution of cocaine. When you receives the bail report that is given to the judge, she notes that it is silent regarding any criminal history. At the initial hearing the judge is considering the amount of the bond to be set. The Judge turns to you and asks, “Do you have any information about your client’s prior criminal history, counsel?”

Example #2 Assume that Joe Client failed to appear for a trial resulting in the judge issuing a bench warrant (a warrant for the client’s arrest). You have no idea where Mr. Client is. You know that if Mr. Client turns himself in it will reflect more favorably upon him than if he is arrested and returned to court forcibly, but you also believe that either way Client will spend a significant amount of time in jail. One day Joe Client appears at your office to seek advice. He believes he made a mistake not showing up for trial but what’s done is done. Client is afraid that if he turns himself in now he will be taken to jail. Client is a single father with two young children and wants to avoid jail until they are old enough to get along without him. Client is considering leaving town with his kids and wants advice about how to handle the situation.

Example #3

Joe client is charged with shooting Willie Witness. You meet Joe Client for the first time and ask Joe what happened. Joe says “I shot Willie because I didn’t like the way he looked at me.” A couple of days later you receive a phone call from Joe’s girlfriend, Linda. Linda claims that Joe could not have shot Willie because Joe was with her at the time of the shooting. Armed with this new information, what should you do?

Back in 20 minutes…


a) Yes I do your honor, while I have not verified this, it is my understanding that he has two prior convictions for distribution of cocaine.

b) Your Honor, this is Mr. Client’s first time ever being arrested.

c) I don’t have to tell you anything, if you want to know go find out yourself.

d) I do not have any information that I am able to provide the Court to supplement the bail report. There is no criminal history reflected in the bail report and I would ask the Court to rely on that for the purposes of this hearing.

What about this twist?

You learn the information from the courthouse clerk

Rule 1.6 CONFIDENTIALITY OF INFORMATION

• Confidentiality is broader than the attorney-client privilege it includes ALL INFORMATION RELATING TO THE REPRESENTATION, WHATEVER ITS SOURCE

»Comment 3

How might you handle this…?

You are sitting in the living room of Ms. Pauline Betts. Ms. Betts is a friend of your client, John Client, who is accused of killing a third friend. Client says he was not present at the time of the shooting and has no knowledge of the case. Ms. Betts is telling you about the various friends of both your client and the decedent. Halfway through the interview, she stops you and says, "Well, what does John say about this? Does he have an alibi?" You say:

Or this…? You represent a 16 year old client. The client stopped by your office to tell the secretary that he left his mother’s home and is staying with his friend. He leaves a number where he can be reached. Later that day, the mother calls concerned about where her son went. She asks you if you have a contact number for him because he ran away from home.


a) Excuses yourself for a moment saying you need to use the restroom, then call the police from another office to report that Client is in your office.

b) “Leaving town isn’t good enough. The best way to avoid jail would be to leave the country, I recommend you get a bus to Mexico and don’t come back.”

c) “You need to turn yourself in. If you don’t turn yourself in, I will see you when you eventually get picked up. I have nothing else to say about the matter.” Then end the conversation.

d) “Let’s talk about the likely consequences of turning yourself in as well as those of deciding to remain on the run.” Then methodically lays out the pros and cons of each decision and offer to always be available for consultation regardless of which option Client chooses.

Example #3


a) Do not tell Joe about the conversation with Linda because you don’t want to encourage Joe to lie.

b) Go to Joe and say, “Look, I know you shot Willie, but Linda will say you didn’t do it. If you just get on the stand and say that you were with Linda, I think we have a good shot at winning this trial.”

c) Go to Joe and say, “I just talked to Linda who says she was with you when Willie got shot. She is obviously willing to lie to protect you, but I cannot help you put on that defense.”

d) Go to Joe and explain what you learned from Linda. Explain some of the tactical challenges with putting on an alibi defense when the only alibi witness is the girlfriend. Suggests that they conduct further investigation to determine whether there may be other evidence to corroborate Linda’s account as well as look into other possible defenses




information.

ABA RPC 1.4

Jack Martin’s 7 Principles of Ethical Lawyering

#7 To practice defense law defensively is unethical, because by definition you are then conflicted counsel

How About This Twist?

Suppose the first version the client provides is less believable to you…

ALIBI

• What does your conversation with client look like?

»Rule 1.4 – duty to inform, consult,

and comply »Lawyer as “assistant”

Anatomy of a Murder

Another twist….

Client wants to testify

Considerations

• “Know” vs. “reasonably believe” – Doubts must be resolved in favor of client

(See Rule 3.3 Comment 8) – Unless lawyer “knows” may NOT refuse

client’s desire to testify (but MAY refuse to offer other witness’)

– Know jurisdictional variations!!!

Would you help prepare Client?

Imagine this…

Client turns down plea offer you think he should take…

Before trial the judge asks… “Is there anything you want to put on the record counsel?”

» Rules 1.2, 1.6

Suppose…

… You want to interview an uncharged potential co-defendant who is locked up in another matter • Rule 4.2

Rule 4.2 COMMUNICATION WITH PERSON REPRESENTED BY

COUNSEL

1) A lawyer/[investigator] representing a client in matter X

2) may not communicate about matter X 3) with a person the lawyer/[investigator]

knows to be represented in matter X 4) Unless the lawyer/[investigator] has

consent of the other lawyer

Rule 4.2 MATTERS OUTSIDE THE SCOPE OF

REPRESENTATION

Rule 4.2 does not prohibit communication with a represented person concerning matters outside the representation [See Comment]

Rule 4.3 DEALING WITH UNREPRESENTED PERSON

• Duty to make clear your role in the matter and to make reasonable efforts to correct any misunderstanding

• May not give any advice other than the advice to seek counsel if lawyer reasonably believes witness’ interest are in conflict with client

Last one… … You represent Marco Brown. The phone rings. You answer it. The caller identifies herself as Linda Johnson. She says that she witnessed an incident and has been subpoenaed by the state to testify at trial. She lost the subpoena and does not remember the court date. However, she remembers that the defendant’s name is Marco Brown. She asks if you can help her. Mr. Brown’s trial is scheduled for next Tuesday.

THE HIGHEST CALLING: CLIENT-CENTERED

REPRESENTATION AND THE ROLE OF THE DEFENSE LAWYER

Jonathan Rapping The Southern Public

Defender Training Center ***

ABA/NACDL National Defender Training Program

Las Vegas, NV 2011

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Cameron Todd Willingham

• “There were no grounds for reversal, and the verdict was absolutely the right one… Shit, it’s incredible that anyone’s even thinking about it.”

• “Most of the time they’re guilty as sin”

Eddie Joe Lloyd

“This is a sick individual who raped, kidnapped and strangled a young woman on her way to school. His claim of my wrongdoing is frivolous, just as is his existence. Both should be terminated”

When we walk past a person in need – indifferent - we lose a little bit of our humanity

• The role of the Defender differs from the role of the prosecutor . . .

• Understand the difference . . .

• Most prosecutors DON’T

The Defense Function

The Defense Team

Represents one person only . . .

THE CLIENT!

ABA Standard 4-1.2(b):

The basic duty defense counsel owes to the administration of justice and as an officer of the court is to … …serve as the accused counselor and advocate with courage and devotion and to render effective, quality representation.

ABA Model Rule of Professional Conduct

Our “responsibility to a client requires a lawyer to subordinate the interests of others to those of the client…” * Rule 4.4 [Comment]

The Prosecution Function

The prosecutor does not represent an individual … … his/her duty is to seek justice Berger v. U.S., 295 U.S. 78 (1935)

ABA Standard 3-1.2(c):

The duty of the prosecutor is to seek justice, not merely to convict.

ABA Model Rules of Professional Conduct

Prohibit a prosecutor from proceeding on a charge that the prosecutor knows is not supported by probable cause. Rule 3.8

[A]n advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go on reckless of the consequences, though it should be his unhappy fate to involve his country in confusion.

-- Henry Lord Brougham

Client-Centered Representation IS:

Acting as an agent for the client to effectuate the outcome or results that the client desires AFTER advising the client about :

* legal aspects of the case * factual information learned by the defense

team * the various options and strategies available

to the client and the pros and cons of each

#1

LOYALTY TO THE CLIENT

Central to the work of any criminal defense attorney is the duty to provide the “zealous and loyal [representation] required by the Sixth Amendment.”

Nix v. Whiteside, 475 U.S. 157, 189 (1986)

“Indeed, . . . the highest claim on the most noble advocate [is] fidelity, unquestioned, continuing fidelity to the client.”

Young v. United States ex rel. Vuitton et Fils

S.A., et al., 481 U.S. 787, 804 (1987)

The lawyer’s “duty of loyalty [to the client is] perhaps the most basic of counsel’s duties.”


#2

ZEALOUSLY ADVOCATE

THE CLIENT’S CAUSE

* From this duty of loyalty “derive[s] the overarching duty to advocate the client’s cause.”

* The lawyer’s “function is to assist the client”


“[The 6th Amendment] speaks of the ‘assistance’ of counsel, and an assistant, however expert, is still an assistant. The language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by the Amendment, shall be an aid to [his/her client].” Faretta v. California, 422 U.S. 806 (1975)

CLIENT CENTERED REPRESENTATION IS NOT…

• Substituting our judgment for that of

the client’s • Doing what we believe is best for the

client IF the client disagrees

Defense Attorney as Advisor

We (can/should) (advise/encourage/persuade) the client regarding our opinion about the best course of action, BUT ultimately must respect the client’s wishes.

#3

AThe lawyer shall provide competent representation to a client …

Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

ABA RPC 1.1

#4




information.

ABA RPC 1.4

ETHICS SPECTRUM

CYA SAVE CLIENT


a) Yes I do your honor, while I have not verified this, it is my understanding that he has two prior convictions for distribution of cocaine.

b) Your Honor, this is Mr. Client’s first time ever being arrested.

c) I don’t have to tell you anything, if you want to know go find out yourself.

d) I do not have any information that I am able to provide the Court to supplement the bail report. There is no criminal history reflected in the bail report and I would ask the Court to rely on that for the purposes of this hearing.

What about this twist?

You learn the information from the courthouse clerk

Rule 1.6 CONFIDENTIALITY OF INFORMATION

• Confidentiality is broader than the attorney-client privilege it includes ALL INFORMATION RELATING TO THE REPRESENTATION, WHATEVER ITS SOURCE

»Comment 3

How might you handle this…?

You are sitting in the living room of Ms. Pauline Betts. Ms. Betts is a friend of your client, John Client, who is accused of killing a third friend. Client says he was not present at the time of the shooting and has no knowledge of the case. Ms. Betts is telling you about the various friends of both your client and the decedent. Halfway through the interview, she stops you and says, "Well, what does John say about this? Does he have an alibi?" You say:

Or this…? You represent a 16 year old client. The client stopped by your office to tell the secretary that he left his mother’s home and is staying with his friend. He leaves a number where he can be reached. Later that day, the mother calls concerned about where her son went. She asks you if you have a contact number for him because he ran away from home.


a) Excuses yourself for a moment saying you need to use the restroom, then call the police from another office to report that Client is in your office.

b) “Leaving town isn’t good enough. The best way to avoid jail would be to leave the country, I recommend you get a bus to Mexico and don’t come back.”

c) “You need to turn yourself in. If you don’t turn yourself in, I will see you when you eventually get picked up. I have nothing else to say about the matter.” Then end the conversation.

d) “Let’s talk about the likely consequences of turning yourself in as well as those of deciding to remain on the run.” Then methodically lays out the pros and cons of each decision and offer to always be available for consultation regardless of which option Client chooses.

Example #3


a) Do not tell Joe about the conversation with Linda because you don’t want to encourage Joe to lie.

b) Go to Joe and say, “Look, I know you shot Willie, but Linda will say you didn’t do it. If you just get on the stand and say that you were with Linda, I think we have a good shot at winning this trial.”

c) Go to Joe and say, “I just talked to Linda who says she was with you when Willie got shot. She is obviously willing to lie to protect you, but I cannot help you put on that defense.”

d) Go to Joe and explain what you learned from Linda. Explain some of the tactical challenges with putting on an alibi defense when the only alibi witness is the girlfriend. Suggests that they conduct further investigation to determine whether there may be other evidence to corroborate Linda’s account as well as look into other possible defenses

Jack Martin’s 7 Principles of Ethical Lawyering

#7 To practice defense law defensively is unethical, because by definition you are then conflicted counsel

How About This Twist?

Suppose the first version the client provides is less believable to you…

ALIBI

• What does your conversation with client look like?

»Rule 1.4 – duty to inform, consult,

and comply »Lawyer as “assistant”

Anatomy of a Murder

Another twist….

Client wants to testify

Considerations

• “Know” vs. “reasonably believe” – Doubts must be resolved in favor of client

(See Rule 3.3 Comment 8) – Unless lawyer “knows” may NOT refuse

client’s desire to testify (but MAY refuse to offer other witness’)

– Know jurisdictional variations!!!

Would you help prepare Client?

Imagine this…

Client turns down plea offer you think he should take…

Before trial the judge asks… “Is there anything you want to put on the record counsel?”

» Rules 1.2, 1.6

Suppose…

… You want to interview an uncharged potential co-defendant who is locked up in another matter • Rule 4.2

Rule 4.2 COMMUNICATION WITH PERSON REPRESENTED BY

COUNSEL

1) A lawyer/[investigator] representing a client in matter X

2) may not communicate about matter X 3) with a person the lawyer/[investigator]

knows to be represented in matter X 4) Unless the lawyer/[investigator] has

consent of the other lawyer

Rule 4.2 MATTERS OUTSIDE THE SCOPE OF

REPRESENTATION

Rule 4.2 does not prohibit communication with a represented person concerning matters outside the representation [See Comment]

Rule 4.3 DEALING WITH UNREPRESENTED PERSON

• Duty to make clear your role in the matter and to make reasonable efforts to correct any misunderstanding

• May not give any advice other than the advice to seek counsel if lawyer reasonably believes witness’ interest are in conflict with client

Last one… … You represent Marco Brown. The phone rings. You answer it. The caller identifies herself as Linda Johnson. She says that she witnessed an incident and has been subpoenaed by the state to testify at trial. She lost the subpoena and does not remember the court date. However, she remembers that the defendant’s name is Marco Brown. She asks if you can help her. Mr. Brown’s trial is scheduled for next Tuesday.

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CHAPTER 2�

DOING RIGHT BY YOUR CLIENT WHILE DOING RIGHT: ETHICS AND

CLIENT-CENTERED REPRESENTATION As lawyers committed to representing poor people accused of crimes we must constantly strive to simultaneously live up to two important ideals: to be a client-centered lawyer and to be an ethical lawyer. The Rules of Professional Conduct (the Rules) set boundaries, outside of which we may not venture without violating our responsibility to our profession. However, within those boundaries we are often given wide latitude and much discretion. The duty of loyalty that we owe to our clients, people who did not choose us as their representatives and who have nowhere else to turn, dictates that we must strive to resolve all ethical dilemmas in a manner that falls within the range of permissible responses, while at the same time is calculated to maximize the likelihood of achieving the objectives of the representation as explicitly articulated by the client. I. 7 Principles of Ethical Lawyering Jack Martin, an outstanding Georgia lawyer who has devoted much of his career to defending indigent defendants charged with the most heinous crimes, articulates seven principles of ethical lawyering. These principles serve as an excellent foundation from which to begin our discussion of ethics and indigent defense19.

1. You don’t have to do this work if you don’t want to This first principle serves as an obvious, yet important, reminder that we chose to do this work and, to therefore, shoulder the special responsibilities that come along with it. We do this work, in part, because we understand that a person’s income should not determine the quality of justice s/he receives in our criminal justice system. The indigent defendant does not get to choose his or her attorney. The lawyer is appointed to represent the client without the client having any say in the matter. At a minimum, each client should expect that his or her lawyer will work as hard, and be as loyal, as if the client paid handsomely for the lawyer’s services. As was discussed in the chapter on The Special Role of the Public Defender, this job is not for everyone. There is no shame in opting for another career path. However, if a lawyer chooses to represent poor people accused of crimes, s/he must always strive to provide the kind of representation s/he would want for his or her own loved ones.

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While the seven principles come from Jack Martin, the discussion of these principles represents the views of this author.

[A]n advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go on reckless of the consequences, though it should be his unhappy fate to involve his country in confusion. -- Henry Lord Brougham

�

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2. If you do take on a client’s case, you are ethically obligated to employ every legal means to maximize the outcome for your client

It is not for the lawyer to decide how much justice a client deserves. Every client should receive as much justice as is available under the law. It is the lawyer’s duty to ensure that happens. Therefore, unless the law or the Rules of Professional Conduct prohibit it, the lawyer should take any course of action that will advance the client’s cause. At times the Rules are permissive; they tell us that a lawyer “may” undertake a course of action. Other times the Rules are mandatory; instructing that the lawyer “shall” undertake a course of action. While the lawyer must always do what the Rules, and the law, require, when there is discretion the criminal defense attorney should always choose the course most likely achieve the client’s desired outcome. When the lawyer identifies an outcome or strategy that will benefit the client, it is incumbent upon the lawyer to look for legal avenues to achieve that end.

3. It is your client’s case, not yours, so it is unethical to preempt your client’s moral judgments

There will be times when the lawyer’s moral compass will not be perfectly calibrated with the client’s. It is not the lawyer’s job to impose his or her moral code upon the client. As long as accomplishing the client’s desire does not require the lawyer to violate the law, or the ethical rules, the lawyer should defer to the client. The case will be but one of many for the lawyer. For the client, it represents his or her life. The client should have the ultimate say since it is s/he who will have to live with the outcome. Of course, the lawyer serves as a counselor and advisor. It is the lawyer’s duty to discuss the pros and cons of any strategy, and to advise the client about how various decisions will impact the case. However, there will be times when, after all counseling and advising is done, the client will not agree with the lawyer’s advice. At these times, the lawyer must respect the client’s wishes.

4. The client, in making his or her decisions, has the right to know the law, and the evidence

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This principle reminds me of a training session I facilitated for a group of young law firm associates who were preparing to handle some pro bono misdemeanor cases. The topic was client interviewing and relationship building. I posited that before asking the client for his or her version of events, you should begin by letting the client know the evidence the state has and the possible defenses to the charges. I opined that to ask the client to jump into his or her version of events before knowing anything about the case, the law, or the lawyer, would invite a distrustful client to give a version that s/he assumed would be favorable. This might lead to the client feeling wed to a narrative that is neither truthful nor helpful.

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Jack Martin’s 4th principle only addresses the client’s right to know the law but it is equally true

that the client has the right to know all of the information about the case that the lawyer knows whether from informal discussions with the prosecutor, discovery, investigation, or another source.

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One of the lawyers in the audience suggested that to provide the client with this information without first ferreting out what s/he claims happened is tantamount to coaching the client. The lawyer argued that the client would then tailor his or her account based on the knowledge the lawyer provided. Suddenly, a young lawyer from the firm interrupted, implying that the other lawyer was employing a double standard. The younger lawyer reminded the audience that the firm represents white collar defendants and that these wealthy clients routinely walk into a firm lawyer’s office demanding to know the charges against them, the evidence against them, and the possible defenses. The white collar client wants this information before he says a word. The younger lawyer suggested that not a lawyer in the room would refuse to provide the requested information until the client first committed to a story. The younger lawyer went further and said that if any firm lawyer did so, the client would simply go elsewhere and the lawyer would be appropriately chastised for his handling of the matter. The young lawyer concluded by asking, “Why should our more criminally sophisticated clients receive a better quality of representation than the less fortunate clientele we are volunteering to represent?” This anecdote helps to illuminate the fact that many of us, whether consciously or sub-consciously, have a different standard for the indigent client. Some of us are more willing to assume that the poor client is going to concoct a lie if given the information with which to do so. Others are of the view that a client who is sophisticated enough to ask for the information that would allow him to craft a creative defense is entitled to it but that there is something wrong with the lawyer educating the ignorant client so that he can make the same decisions. However, it is our job to educate the client about the law and the facts that will impact the case. It is not our job to decide which clients are able to responsibly handle having certain information. Ultimately, the case is the client’s and we work for him or her. The American Bar Association Model Rule of Professional Conduct 1.421, governing the lawyer’s duty of communication, supports this view. In requiring that the lawyer “promptly comply with reasonable requests for information,” it is clear that if the client were savvy enough to ask for the information, the lawyer would have to provide it. Part of our responsibility in representing poor clients, who are often less educated , is to ensure they are equipped with the information and knowledge that a more sophisticated client may have so that justice is not determined by one’s ability to maneuver in the criminal justice arena. Comment [7] to Rule 1.4 mandates that, while there may be extraordinary circumstances where sharing information with a client might not happen immediately, a lawyer may never “withhold information to serve the lawyer’s own interest or convenience or the interests or convenience of another person.” If a lawyer assumes the worst in the client, s/he are not giving the client the representation s/he deserves. If the lawyer believes that s/he needs to withhold information from the client in order to protect the client from his own shortcomings, the lawyer would do well to remember Principle #1: You don’t have to do this work if you don’t want to.

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When we refer to the Rules of Professional Conduct, and related commentary, throughout this article, we will be referring to the American Bar Association Model Rules of Professional Conduct and the comments to those Rules. While the Model Rules are not binding on any state, they serve as the model of the codes of professional conduct adopted by almost every state.

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5. Never lie to or mislead a client, especially as to the confidentiality of communications

It is never okay to lie to, or to mislead a client. Imagine if you hired a lawyer, only to find out that s/he had been withholding information from you or lying to you about what s/he knows. You would likely fire that lawyer. Indigent defendants deserve no less than we expect from our agents and representatives. The lawyer must always be honest with his or her clients, even when the lawyer fears that doing so may upset the client or cause disharmony within the defense team. Successful representation requires that the client be able to trust his or her lawyer. The client must understand that the lawyer works for the client and has the client’s interests at heart. Only then will the client have the confidence in the lawyer necessary for a successful attorney-client relationship. One way in which lawyers violate this principle is by withholding information, or lying about what they know, because they fear that disclosure will cause the client to make a choice with which the lawyer does not agree. Perhaps the lawyer has been advocating one defense theory over another and it has taken a while to get the client to agree with the lawyer’s view. Suppose the lawyer later learns some information that the lawyer believes a jury will give little weight but that s/he fears will cause the client to gravitate back to the less desirable theory. There may be a temptation to not fully disclose the information. But this information belongs to the client, as it was learned during the course of the representation. Not sharing this information with the client, or lying about what we learned, is not an option. Lawyers must operate with full and honest disclosure, serving as counselor and advisor to help the client make the best decisions to achieve his or her goals. A second way that lawyers frequently mislead clients is by disclosing confidential information. This is frequently done without the lawyer realizing s/he is violating a duty to the client because lawyers often do not appreciate the breadth of the obligation. Other times lawyers disclose confidential information because they believe it will help the client’s cause. This is always permissible with the client’s express permission, after consultation. But a lawyer may never preempt the client’s decision about whether to reveal confidential information. Confidentiality, as defined by Rule 1.6, is much broader than privileged information learned directly from the client. As the Comment makes clear, “the confidentiality rule applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.”22 Therefore, the Rules protect all information, whether learned through the client, investigation, discovery, or even public records, as long as that information relates to the representation. When a lawyer undertakes the representation of a client, s/he makes a promise not to disclose any confidential information without the client’s “informed consent.”23 S/he must never break that promise to the client.

22

Rule 1.6, Comment [3] 23

Rule 1.6(a).

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6. Preserving client confidences preserves the truth finding process Those who do not understand the defense function in our criminal justice system are sometimes critical of the defense lawyer’s obligation to protect confidential information. These critics argue that this Rule keeps the truth from surfacing. They suggest that once a lawyer knows information that will shed light on important details, it thwarts the ends of justice to keep those facts confidential. This conclusion is the product of flawed thinking. In fact, preserving client confidences promotes the truth seeking process. During the course of defending a criminal case, the defense attorney learns a lot of information that is not in the possession of the prosecution. Much of this information may come from direct conversations with the client. This is information that can only be learned if the client chooses to reveal it. Other important facts are gathered through the investigative process. Much of these investigative fruits ultimately trace back to leads acquired through communications with the client. Without the client’s involvement, there are often important details that would never be discovered. Frequently, it is the defense that is introducing evidence at trial that would otherwise remain hidden. The Rule protecting client confidences is the reason the defense lawyer is able to learn anything from the client. Clients would frequently be unwilling to provide information and leads if they believed that they would have no say in whether the fruits would be provided to the prosecution. It is the confidence in knowing that the defense team will decide whether and how to reveal details learned during the course of its investigation that promotes candid communications between the client and the lawyer. While the defense attorney is not at liberty to disclose everything s/he learns while preparing the case, much of what the defense does disclose would never be learned otherwise. Every time a defense lawyer violates the confidentiality rules, the client becomes more distrustful of the lawyer and is less willing to share information. The lawyer, in turn, is rendered a less effective vehicle through which important information about the case can be unearthed. By remaining faithful to the confidentiality rules the lawyer maximizes his or her ability to learn about the case, thereby increasing the likelihood that the defense will be a vehicle through which otherwise unknown information is learned. Furthermore, comment [2] of the ABA Model Rules suggests that the confidentiality rules encourage individuals to seek legal advice and to openly reveal “legally damaging subject matter.” This, in turn, allows lawyers to give appropriate legal advice. The commentators conclude that the facilitation of this relationship helps to uphold the law, as individuals will more often err on the side of violating the law if forced to make decisions without the counsel of an attorney.

7. To practice defense law defensively is unethical, because by definition you are then conflicted counsel

The Henry Lord Brougham quote at the start of this article brings home the truism that in order to be an effective advocate for one’s client, the lawyer cannot consider any potential personal cost. The lawyer who considers how a course of action will impact him or her personally, is practicing defensively. This lawyer has pitted his or her own interests against those of the client. By definition, the lawyer is conflicted and, therefore, incompetent to represent that client.

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This phenomenon manifests itself in many ways. We see it when a lawyer requires a client to sign a letter acknowledging that the lawyer relayed a plea offer and the client rejects it, if the motivation is because the lawyer thinks the client should have taken the plea and is worried that the client will later claim the lawyer never conveyed it.24 This effort to gather evidence to be used against the client at a later date is defensive lawyering. We also see it when a client insists that a certain argument be made and the lawyer prefaces the argument with a disclaimer that s/he is only making the argument because the client insists. This is usually the result of a lawyer who is more concerned about his or her reputation with the judge than making the best argument for the client. We see it when lawyers fail to file necessary motions or litigate important issues because they are afraid that the judge, whose primary interest is moving the docket along quickly, will become angry. In each of these scenarios, the lawyer has failed to appreciate his or her constitutional obligation to provide zealous and loyal representation; that “the highest claim on the most noble advocate [is] . . . unquestioned, continuing fidelity to the client.”25 By allowing his or her own interests, or those of others, to interfere with the zealous defense of the client, the lawyer is conflicted.26 This lawyer will be unable to fulfill his or her obligations as an advocate. III. Review of the Rules Most Relevant to Our Practice There are several Rules that are implicated in our practice most frequently. In this section we will quickly review the most relevant lessons from these rules. We are only examining aspects of certain rules that come up most office in the public defenders practice. Every lawyer must thoroughly review all of the rules to ensure that s/he is in compliance. Keep in mind that we are reviewing the ABA Model Rules and that any given jurisdiction may have made modifications to these Rules. You should be sure to consult the Rules in the jurisdiction where you are practicing. 1. Rules 1.1 and 1.3 – Competence and Diligence Combined, Rules 1.1 and 1.3 place an obligation upon the lawyer to have the appropriate expertise and time to competently represent the client in a diligent manner. A lawyer may be rendered incompetent because s/he does not have the experience or skill to handle a particular matter. Obviously, some cases are more complex than others, either because of the charges involved or the evidence at issue. A new lawyer should not endeavor to handle a serious felony where the stakes are high and there is a great need to be skilled in many facets of practice. Likewise, a lawyer who has no

24

I do not mean to suggest that a lawyer should not thoroughly document all communications with the client. However, the instinct to require that the client sign a letter acknowledging the plea is often a way to gather evidence against the client should he later want to deny the lawyer ever conveyed the plea offer. One lawyer suggested to me that he has his client sign a letter rejecting a plea because it forces the client to take the decision more seriously. This potential benefit must be weighed against the risk that asking a client to sign such a letter may cause the client to view the lawyer’s motives with suspicion. The client may perceive that the lawyer is trying to protect himself and that s/he does not trust the client. In any event, the lawyer should never practice defensively; taking precautionary steps to protect himself against the client. 25

Nix v. Whiteside, 475 U.S. 157, 189 (1986). 26

Rule 1.7(a)(2) tells us that whenever the lawyer’s personal interest materially limits his responsibilities to a client, the lawyer is conflicted.

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understanding of a complicated issue like DNA should not take on a case where that issue is central to the prosecution. A lawyer may also be rendered incompetent because s/he does not have the time to thoroughly study and prepare for the representation. Every client is entitled to a lawyer who will have the time to research up to date law relating to issues in the case and thoroughly investigate the relevant facts. Even the least complicated representation involves a significant investment of time devoted to investigation, legal research, discovery, drafting motions, client meetings, and other preparation. Rule 1.3 requires that the lawyer have the time to fulfill these obligations promptly, so that the client does not have the burden of a pending criminal charge hanging over his or her head longer than necessary and so that the benefit of prompt attention, like pursuing investigative leads while they are still warm, does not fade. 2. Rule 1.2 – Authority to Make Decisions While some lawyers divide the universe of decisions in a case into two categories: “lawyer decisions” and “client decisions,” this is based on a misunderstanding of Rule 1.2. This Rule does explicitly set forth three decisions for which the client has the final word: whether to take a plea offer, whether to waive a jury trial, and whether to testify. However, these must obviously be made with the advice of counsel after gaining a full appreciation for the consequences of the decision. Likewise, Rule 1.2 mandates that the client determine the “objectives” of the representation. Generally this refers to the outcome, or result, the client would like to achieve, or what the client would like to have happen in his or her life with respect to the case. Again, the client should be armed with counsel’s advice when making this critical call. The Rule then requires that the lawyer “consult with the client as to the means by which [the objectives] are to be pursued.” This does not mean these decisions are “lawyer decisions.” It explicitly means they are decision to be made jointly after consultation27. While a lawyer who preempts a client’s decision about a particular strategy for accomplishing the client’s stated objective may not be in violation of Rule 1.2, nothing in the Rule requires the lawyer to substitute his or her judgment for the client’s. A client-centered lawyer may (and, I would argue, should) defer to the client where the two disagree about a course of action. Of course, the lawyer should spend as much time and energy as is necessary to ensure the client fully appreciates the ramifications of his or her choice, but in the end it is the client’s life that hangs in the balance. As long as the lawyer is confident that s/he has adequately explained the pros and cons of each potential course of action, where the lawyer and client disagree about a strategy, the greater impact the result will have on the client’s life militates in favor of giving the client great deference. Nothing in Rule 1.2 prohibits the lawyer from doing so. Furthermore, the duty of the lawyer to explain a matter to the client to the extent necessary to allow the client to make informed decisions is laid out in Rule 1.4, the topic of the next section.

27

The requirement that the client be allowed to play a central role in these decisions is further supported by Rule 1.4, Comment [5], which discusses the lawyer’s obligation to consult with the client in these matters.

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3. Rule 1.4 – Duty to Communicate With Client One of the most important responsibilities the defense lawyer has is to communicate with the client. Rule 1.4 requires that the lawyer consult with the client about strategy, keep the client informed of developments in the case, and comply with requests for information. Attorney-client communication is critical to an effective working relationship. The lawyer who prefers to prepare and litigate a case without any input from the client, or who thinks clients interfere with their ability to do their job, fails to appreciate the central role the Rules envision the client playing in guiding the representation. Communication is the foundation of client-centered representation. 4. Rule 1.6 – Confidentiality of Information For reasons discussed above, Rule 1.6 is absolutely fundamental to preserving the ability of lawyers to represent clients and to achieve just outcomes in our criminal justice system. The Rule is incredibly broad, applying to “all information relating to the representation, whatever its source.”28 A lawyer can never be compelled to disclose confidential information. The Rule makes clear that as a general matter, the lawyer shall never reveal confidential information without the client’s permission. The Rule then sets forth some situations in which the lawyer may reveal a confidence. However, under the ABA Rules, there is never a time when the lawyer must reveal a confidence. Even under this framework, the exceptions to the rule prohibiting disclosure are narrow. For example, the lawyer may not disclose information that would prevent physical harm to another unless disclosure would “prevent reasonably certain death or substantial bodily injury.” 5. Rule 1.7, 1.9, and 1.10 – Conflicts of Interest Rule 1.7 prohibits a lawyer from representing a client if doing so would directly and adversely impact another client. It also prohibits a lawyer from taking on a case where there is a significant risk that doing so would materially limit the lawyer’s ability to fulfill his or her obligations to another client. Rule 1.9, dealing with responsibilities to former clients, prohibits a lawyer from taking on the representation of a client whose interests are materially adverse to those of a former client. And Rule 1.10 commands that lawyers who are part of the same office are treated as the same lawyer for conflicts purposes (i.e. if one lawyer would be conflicted, the others are as well). The two situations where this comes up the most are when two lawyers in the same office represent co-defendants, or where one client is a witness against another client in a different matter, and when lawyers have more cases than they can responsibly handle. Lawyers must be diligent about ensuring that they are checking to ensure that co-defendants are not represented by a lawyer in the same office. Lawyers must also keep an eye out for state’s witnesses who may have a pending case and are represented by a co-worker. When either of these situations occurs, the lawyer must know to whom in the office they should report the conflict so that it can be resolved. Lawyers must also be conscious of when their caseload begins to materially impact their ability to fulfill all of their ethical obligations to their other clients, including the duty to be competent and diligent in every case.

28

Rule 1.6, Comment [3]

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6. Rule 1.16 – Declining or Terminating Representation Rule 1.16(b) mandates that, absent a narrow set of exceptions, a lawyer may not withdraw from a case if doing so would have a materially adverse impact on the interests of the client. However, pursuant to Rule 1.16(a), withdrawal is mandated if the representation would result in a violation of the Rules of Professional Conduct. Therefore, when a lawyer comes to realize that his or her caseload is causing him or her to fall below the standards set forth in these Rules, withdrawal will be necessary. Obviously, the lawyer should seek to withdrawal from those cases in which withdrawal will not materially adversely impact the client. 7. Rule 3.1 – Meritorious Claims Litigating motions is an essential component to the representation of any client. Unfortunately it is a practice that often goes underused. Some lawyers who are guilty of sporadically filing motions point to their obligation to not file “frivolous” motions. Whether they are understand this or not, they are likely relying on Rule 3.1 for authority. Rule 3.1 dictates that a lawyer “not assert … an issue …unless there is a basis in law and fact for doing so that is not frivolous.” Because the criminal defense attorney often has so little information about the case at the time motions are due, it is easy for the lazy lawyer to conclude that they have no basis in either law or fact for filing any motions. The version of events laid out in a police report will almost never make out a valid constitutional claim. If the officer violated the constitution, s/he likely knows enough o write the police report in order to mask the transgression. However, the comments to Rule 3.1 are not so stringent as to require that the defense has already verified the facts that give rise to a motion. Comment [2] instructs us that a motion “is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery.” All that is required is that the lawyer determines that s/he can make a good faith argument in support of his or her client’s position. The fact that the lawyer does not expect to prevail should not prevent the lawyer from raising the issue. A lawyer should never rule out filing a motion until s/he has educated the client about the relevant law, discussed the types of information that might give rise to a claim, and thoroughly investigated whether that evidence exists or might be developed through discovery. After taking these steps, the lawyer should only decide to not file the motion if s/he concludes that s/he could not in good faith even argue the position (again, the standard is not whether the lawyer believes s/he will prevail). Furthermore, the lawyer need not have personal knowledge of the facts asserted. The Rules explicitly recognize that assertions in the pleadings, giving rise to a good faith basis, often come from the client or other sources. See Rule 3.3, Comment [3]. 8. Rule 3.3 – Candor Towards the Tribunal Obviously, a lawyer may not knowingly make a false statement of fact or law to a judge. This prohibition comes from Rule 3.3. There are times when there appears to be a conflict between Rule 3.3 and another obligation under the Rules. Most notably Rule 1.6. If a judge asks for information that is confidential, the lawyer may not lie about the answer. However, the lawyer may refuse to answer on the grounds that to do so would violate Rule 1.6 (and the thoughtful lawyer will consider ways to do so without implying that the lawyer is withholding damaging information). Therefore, the tension is not as

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great as it may appear. Rule 3.3 requires that if the lawyer makes a statement to the Court concerning a fact or the law, the lawyer must be truthful. This rule also deals with the lawyer’s obligations with respect to offering evidence. It distinguishes between evidence that the lawyer knows to be false, versus evidence that the lawyer reasonably believes to be false. It also distinguishes between the defendant’s testimony and all other evidence. A lawyer may not offer evidence that the lawyer knows to be false. A lawyer has discretion about whether to offer evidence s/he reasonably believes to be false, other than the defendant’s testimony. With respect to this category of evidence, the Rule says a lawyer “may refuse to offer [it].” A lawyer may not refuse to offer a defendant’s testimony, even if the lawyer reasonably believes it is untruthful. The client’s constitutional right to testify is the reason for a different analysis when it comes to the defendant. Where the lawyer knows the defendant wishes to testify falsely (assuming the lawyer could know such a thing) the ABA Rules prohibit the lawyer from presenting the testimony. The Comments point out that this is not the case in every jurisdiction. In some jurisdictions the lawyer would still be required to allow the client to testify while in others the Rules would require the lawyer to allow the client to testify in a narrative fashion. While a conscientious lawyer should try to dissuade a client from testifying falsely (if for no other reason than it is likely a bad tactical move because a good cross examination will reveal the untruths and destroy the client’s credibility), should the client insist on testifying, and where the Rules give the lawyer an option, the client-centered lawyer should always choose the alternative that best protects the client. 9. Rule 3.4 – Fairness to Opposing Counsel Rule 3.4 prohibits a lawyer from unlawfully obstructing another party’s access to evidence or from unlawfully altering, destroying or concealing a document or other material having evidentiary value. This obviously does not mean that a lawyer may not keep files that include items with evidentiary value. These items may or may not be producible pursuant to discovery or a subpoena and the law relating to those vehicles of discovery would govern. Obviously, the prosecutor gathers evidence all the time. Some of that evidence is discoverable, and some is not. Investigation and evidence collection is obviously not tantamount to obstructing access to evidence or concealing evidence. Likewise, the defense has an obligation to investigate and gather evidence. However, when the defense team collects evidence that has evidentiary value, it must maintain it in such a way that it will be available should there be a basis for the state to gain access to it (such as discovery or subpoena). The Comments to this rule make clear that the goal of this rule is to ensure that efforts to lawfully obtain evidence from another party through these vehicles will not be frustrated because the other side altered or destroyed the evidence. This Rule should not cause the defense attorney to shy away from investigating and collecting evidence of evidentiary value for fear that removing an item with evidentiary value from the public sphere and placing it in the client’s file is tantamount to concealment. Clearly it is not.

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A second important issue is raised in Rule 3.4(f). The rule prohibits a party from advising a witness to refrain from voluntarily giving information to the other side. Unfortunately, some prosecutors advise witnesses not to talk to the defense. When the defense learns this has happened, the lawyer should consider filing a motion for relief, arguing that the conduct violates Rule 3.4.29 This prohibition does not apply to the client (you may, and should, advise your client against providing information to the prosecution). It also does not apply to the client’s family members as long as the lawyer reasonably believes the family members interests will not be adversely impacted by refusing to voluntarily provide information. 10. Rule 3.7 – Lawyer as Witness Rule 3.7 prohibits a lawyer from representing a client in a matter in which the lawyer is likely to be a witness. Because of this, it is imperative that whenever a lawyer interviews a witness in a case, s/he has an investigator or a colleague with him or her so that if the need to impeach the witness arises, the lawyer will not have to be the impeaching witness. Because one never knows when a witness may say something at trial that differs from what s/he told the defense previously, a lawyer should never interview a witness alone. It is not worth the risk that the lawyer will have to withdraw from the case. Note that Rule 3.7 allows another lawyer in the same office to be a witness. Therefore, a lawyer may investigate with a colleague (as long as the colleague is not co-counsel on the case they are investigating). 11. Rule 4.1 – Truthfulness to Others Rule 4.1 essentially commands that a lawyer not lie when dealing with other parties. But the commentary also makes clear that the lawyer does not have an affirmative duty to inform others of relevant facts. As a matter of fact, often times such revelations will run afoul of Rule 1.6. 12. Rule 4.2 – Dealing With Represented Parties Rule 4.2 deals with attempts to interview a person who is represented by a lawyer. The Rule does not allow a lawyer to talk to a represented party about the subject of the representation. It does allow the lawyer to talk to the person about matters other than those that are the subject of the representation. So, suppose Mark Lawyer wants to talk to Jimmy Witness about what Jimmy saw during a robbery with which Mark’s client is charged. Jimmy has a pending drug case and is represented by a lawyer in that matter. Mark may discuss the robbery with Jimmy (Jimmy is not represented in any matter concerning the robbery) but he may not ask Jimmy about the drug offense with which he is charged and represented. Suppose, however, that Jimmy is charged as a co-defendant in the robbery and represented in that case. Mark may not talk to Jimmy about the robbery, without his lawyer’s permission, because Jimmy is represented in that matter. Because Rule 4.2 only protects a defendant from being questioned about the subject matter of his representation, a lawyer must always advise his or her client not to talk

29

This conduct raises constitutional concerns. See Gregory v. United States, 125 U.S. App. D. C. 140, 369 F.2

d 185 (1966). Jurisdiction specific research must be conducted.

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about any matters with prosecutors or police without counsel being present. Of course, this Rule supplements the protections afforded under the Fifth and Sixth Amendments. 13. Rule 4.3 – Dealing With Unrepresented Parties When a lawyer deals with an unrepresented party, the lawyer must be honest about his or her role in the case. Rule 4.3 instructs that when dealing with a person who is not represented by counsel, the lawyer must not imply in any way that s/he is disinterested in the matter. If a lawyer reasonably knows that the person misunderstands the lawyer’s role, the lawyer should make reasonable efforts to correct the misunderstanding. If the party asks a questions that calls for legal advice, how the lawyer may handle it depends on the party. If there is a reasonable possibility that the party’s interests will be in conflict with the client’s, the lawyer may only advise the party to secure counsel. Otherwise, the rule does not prohibit the lawyer from answering the question. 14. Rule 5.3 – Responsibilities Regarding Non-Lawyer Assistants Defense lawyers depend on non-legal assistants whether they be investigators, paralegals, administrative assistants, or interns. These assistants are bound by the Rules of Professional Conduct. It is incumbent upon the supervising attorney to provide non-legal assistants the training, instruction, and supervision to ensure that they comply with these rules. II. Resolving Ethical Challenges in a Client-Centered Way With Jack Martin’s 7 principles as a guide, and an understanding of the Rules most relevant to indigent defense practice, we now turn to a model that will help us to resolve ethical dilemmas in a manner that is both client-centered and ethical. We can view reactions to any ethical challenge along a spectrum, which is represented in Figure 1 below. On one end of the spectrum are those reactions that are purely the result of the instinct to curry favor with a third party (most likely a judge) or to protect oneself rather than the client. This end of the spectrum is represented by the word “Lawyer” because the motivation is often selfish. On the other end of the spectrum are those reactions that are purely the result of an instinct to achieve the client’s desired outcome at all costs, without regard to the law or the ethical rules. This end of the spectrum is represented by the word “Client.” At each end of the spectrum, the lawyer will often find himself behaving in violation of the rules of professional conduct. In the model the lawyer begins to engage in unethical behavior once s/he moves beyond the broken line at either end. There will then be a range of responses along the spectrum that are ethical, some which err more towards catering to the lawyer’s interest, of those of a third party, and others which lean more towards protecting the client. The ethical client-centered lawyer will resolve ethical dilemmas in the latter range. In other words, we must always strive to achieve the client’s goals in a manner that is ethical and lawful. The instinct to protect the client is the right instinct but, if unchecked by legal and ethical boundaries, can lead to troublesome results. On the other hand, the instinct to protect oneself, or to cater to the desires of parties other than the client, will ultimately violate principle #7 and result in unethical behavior. The lawyer with this instinct should consider referring back to principle #1 and seek employment elsewhere.

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By looking at three examples we can see how different responses to ethical challenges can lead to behavior that falls at various points along the model described above. We can also better understand how to resolve these dilemmas in a client-centered and ethical manner.

EXAMPLE #1: Judge asks for confidential information Assume that Jane Lawyer is appointed a new client, Mike Client, who is charged with distribution of cocaine. As Ms. Lawyer prepares to handle the initial hearing, which will include a bond determination, she meets Mr. Client in the courthouse cellblock. During this initial interview, Ms. Lawyer asks Mr. Client if he has ever been convicted of any crime before. Mr. Client replies that he has two prior convictions for distribution of cocaine. When Ms. Lawyer receives the bail report that is given to the judge, she notes that it is silent regarding any criminal history. At the initial hearing the judge is considering the amount of the bond to be set. The Judge turns to Ms. Lawyer and asks, “Do you have any information about your client’s prior criminal history, counsel?” Consider the following possible responses:

a. Yes I do your honor, while I have not verified this, it is my understanding that he has two prior convictions for distribution of cocaine.

b. Your Honor, this is Mr. Client’s first time ever being arrested. c. I don’t have to tell you anything, if you want to know go find out yourself. d. I do not have any information that I am able to provide the Court to

supplement the bail report. There is no criminal history reflected in the bail report and I would ask the Court to rely on that for the purposes of this hearing.

This example raises a recurring dilemma in our line of work; one that pits the obligation to hold inviolate all client confidences pursuant to Rule 1.6 and the duty of candor to the tribunal under Rule 3.3. Rule 3.3 prohibits a lawyer from “mak[ing] a false statement of fact or law to a tribunal.” Therefore, if a lawyer chooses to answer a question posed by a judge, the answer must be truthful. However, refusing to answer a question, where doing so would violate a competing ethical obligation, does not run afoul of Rule 3.3.

Lawyer Ethical Responses Client

FIG. 1: In this model the far left end of the spectrum represents unethical behavior caused by a desire to please others (the judge) or protect the lawyer. The far right end of the spectrum represents an ethical behavior caused by a desire to achieve the client’s desired outcome at all costs. The area in the middle represents a range of ethical responses which vary in their degree of client-centeredness.

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In the above hypothetical, the first option is a clear example of the lawyer who is more interested in currying favor with the judge than protecting her client. While the lawyer was certainly candid with the judge, she violated Rule 1.6 which prohibits the lawyer from disclosing confidential information. This behavior certainly falls on the far left end of the spectrum in the above model. The second option falls on the far right end of the spectrum. While it is an obvious way to maximize the chance of getting an immediate benefit for the client (an affordable bond), it requires that Ms. Lawyer be dishonest with the Court, a violation of Rule 3.3. While Ms. Lawyer is prohibited from disclosing what she learned from Mr. Client, she may not lie to the Court. The third option violates neither Rule 1.6 nor Rule 3.3 but it is an ineffective way to achieve what the client’s goal (low bond). It signals that the lawyer has some bad information that she is unwilling to share and prompts the judge to delve further, likely discovering the prior convictions. The fourth option is a much better answer. Notice the italicized language, “that I am able to provide the Court.” This language makes all the difference in the world. If Ms. Lawyer simply said, “I do not have any information,” that would be dishonest. She does have some information. However, it is true that she is unable to disclose this information pursuant to Rule 1.6. Therefore, to say “I do not have any information that I am able to provide the Court,” is both true and protective of the confidence. Other possible responses might be, “I have not been able to verify anything different from the bail report,” or “the bail report certainly does not reflect any, your Honor.” Words matter! As lawyers we must select words carefully. The difference between Jane Lawyer saying, “I have no information about a prior record,” and “I have not been able to verify my client’s prior record,” is the difference between ethical and unethical lawyering. For a twist on Example #1, assume that Joe Client does not reveal his past criminal history but that Jane Lawyer learns of Client’s two prior convictions because she obtained a printout of his criminal history at the courthouse. Assume further that this document is a public record, accessible to anyone interested. For the purposes of this hypothetical problem, assume the bail record is again silent regarding any criminal history. Again, the Judge asks Lawyer, “Do you have any information about your client’s prior criminal history, counsel?” Does it matter that Jane Lawyer learned this information through a public record rather than a privileged client communication. No. Remember that confidences are much broader than client communications and include information that is learned through the public record. Do not confuse Rule 1.6 confidences with information that is considered privileged due to the attorney-client relationship. It would violate Rule 1.6 for Lawyer to respond, “According to the criminal history I obtained through the court, Mr. Client has two prior convictions.” The fourth option above is still the best answer.

EXAMPLE #2: Client with a bench warrant Assume that Joe Client failed to appear for a trial resulting in the judge issuing a bench warrant (a warrant for the client’s arrest). Jane Lawyer has no idea where Mr. Client is. Jane Lawyer knows that if Mr. Client turns himself in it will reflect more favorably upon him than if he is arrested and returned to court forcibly, but also believes that either way

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Client will spend a significant amount of time in jail. One day Joe Client appears at Jane Lawyer’s office to seek advice. He believes he made a mistake not showing up for trial but what’s done is done. Client is afraid that if he turns himself in now he will be taken to jail. Client is a single father with two young children and wants to avoid jail until they are old enough to get along without him. Client is considering leaving town with his kids and wants advice about how to handle the situation. The following are some potential responses:

a. Jane Lawyer excuses herself for a moment saying she needs to use the restroom, then calls the police from another office to report that Client is in her office.

b. “Leaving town isn’t good enough. The best way to avoid jail would be to leave the country, I recommend you get a bus to Mexico and don’t come back.”

c. “You need to turn yourself in. If you don’t turn yourself in, I will see you when you eventually get picked up. I have nothing else to say about the matter.” Jane then ends the conversation.

d. “Let’s talk about the likely consequences of you turning yourself in as well as the likely consequences of deciding to remain on the run.” Jane then methodically lays out the pros and cons of each decision and offers to always be available for consultation regardless of which option Client chooses.

The first option is obviously a violation of Rule 1.6, likely motivated by a lawyer who does not understand the ethical rules trying to cover her own back. All of the information reported to the police has been learned during the course of the representation and is, therefore, confidential. This is an example of gravitating across the broken line to the left in the above model. The second option gravitates too far to the right in the model above. Presumably Lawyer is motivated by a desire to help Client avoid detection so that he may be with his kids. While a lawyer is obligated to render candid legal advice, the lawyer may not advise a client to break the law. Rule 2.1, governing the lawyer’s role as advisor, and the accompanying commentary make clear that a lawyer is not limited to providing only legal advice. The lawyer may discuss the “moral, economic, social, and political” ramification of a course of action, as the legal decisions cannot be made in a vacuum. Therefore, the lawyer may say something like, “You should be aware that when you try to register your kids for school you will have to provide information that will likely lead to your detection. Therefore, moving to another county in [the same state] will not likely save you from being arrested in this matter.” The client may conclude from this conversation that he should turn himself in because it will not be so easy to avoid detection. Alternately, the client may conclude that he should take his kids and leave the country. While the end result may be the same, the lawyer has not advised the client to continue to break the law by remaining a fugitive. The third option is less clearly an ethical violation than the first, but is certainly not very client-centered. We need to know more of the circumstances to determine whether this course of action violates Rule 2.1. The Rule requires the lawyer to “render candid advice.” However, the commentary makes clear that the lawyer need not offer advice that is not requested. Therefore, if Client persisted in asking for advice about various courses of action and Lawyer refused to provide it, she would be in violation of Rule 2.1. However, if Lawyer recommended that Client turn himself in and Client did not ask any

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other questions, Lawyer is not required to offer unsolicited advice. In this hypothetical, Client specifically asked Lawyer for advice on how to handle the situation after explaining his concerns and she expressly told him that she had “nothing else to say about the matter,” after advising him to turn himself in. There is a strong argument that Lawyer violated Rule 2.1. The final option is the most clearly ethical, and client-centered, response. Lawyer is obligated to provide requested advice and is entitled to discuss consequences beyond those that are legal. Without advising Client to undertake an illegal course of action, Lawyer can discuss the pros and cons of the actions Client proposes. Assume, for example, Client asks, “what if I go to Mexico? I have family there. Would they find me there?” Assuming it is consistent with the lawyer’s professional judgment, the lawyer may respond by saying, “You know, for the crime with which you are charged, the authorities will not likely try to find you in Mexico. Most likely, if you go to Mexico and never return to the United States, you will not be pursued. However, if you ever decide to return to the United States, and you get arrested, that decision will certainly have an adverse impact on your legal situation.” While this response may (or may not) encourage Client to go to Mexico, it is qualitatively different from affirmatively recommending that course of action. The lawyer need not, and indeed may not, withhold professional advice because she believes Client will “not do the right thing.”

EXAMPLE #3: Client changes his story Joe client is charged with shooting Willie Witness. Jane Lawyer meets Joe Client for the first time and asks Joe what happened. Joe says “I shot Willie because I didn’t like the way he looked at me.” A couple of days later Jane receives a phone call from Joe’s girlfriend, Linda. Linda claims that Joe could not have shot Willie because Joe was with her at the time of the shooting. Armed with this new information, what should Jane do? Consider the following courses of action:

a. Jane does not tell Joe about her conversation with Linda because Jane does not want to have a role in encouraging Joe to lie.

b. Jane goes to Joe and says, “Look, I know you shot Willie, but Linda will say you didn’t do it. If you just get on the stand and say that you were with Linda, I think we have a good shot at winning this trial.”

c. Jane goes to Joe and says, “I just talked to Linda who says she was with you when Willie got shot. She is obviously willing to lie to protect you, but I cannot help you put on that defense.”

d. Jane goes to Joe and explains what she learned from Linda. Jane explains some of the tactical challenges with putting on an alibi defense when the only alibi witness is the accused’s girlfriend. Jane suggests that they conduct further investigation to determine whether there may be other evidence to corroborate Linda’s account as well as look into other possible defenses.

The first option is a violation of Rule 1.4, the duty to communicate with the client. The lawyer has an obligation to communicate with the client about any information learned during the course of the representation that will inform the client’s decision about the objective of the representation or the means to be used to accomplish that objective. The lawyer who assumes his or her client will lie if he has the opportunity to do so, and in response tries to protect the client from doing so by withholding information, is conflicted (there are very limited circumstances under which the lawyer may withhold

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information from the client but this is not one of them – See Comment 7). The lawyer will find himself or herself in a constant dilemma in which his or her duty to provide the client information will clash with his or her fear that the client will use the information irresponsibly. The usual motivation of the lawyer who errs on the side of non-disclosure is a desire to protect himself or herself from being party to the client’s wrongdoing. However, by reviewing other hypothetical scenarios, one can see this position is untenable and requires the lawyer to draw fine lines between information provided by the client that the lawyer believes to be truthful and that which the lawyer assumes to be false. For example, suppose in the above hypothetical, after Joe told Jane that he shot Willie, Jane learned that Joe had a twin brother. Jane further learned that Joe always protected his brother and has, on past occasions, taken the blame for things his brother actually did. Jane’s investigation further reveals that Joe’s brother and Willie have fought each other in the past. Furthermore, Jane cannot find any evidence of any motive for Joe to shoot Willie. With this added information, the lawyer who opted for answer (a) previously will likely be more willing to agree that Jane should share the information about the alibi with Joe. Take another example. Suppose during their first conversation, Joe told Jane he did not know Willie and that he was in another state at the time of the shooting. During her investigation, Jane later discovers evidence that Joe and Willie were high school classmates. Jane also talks to several very credible witnesses who saw a man named Tony shoot Willie. Tony and Joe are friends. These witnesses all know Joe and say he was there but did not shoot the gun. We would all agree that Jane, having developed a good “innocent presence” defense, should certainly talk to Joe about what she learned. As lawyers, we must certainly assess the strength of the evidence we learn, and its susceptibility to attack, when advising our clients about the likely consequences of choosing among various defense. However, we cannot allow our own personal view of the quality of evidence keep us from fulfilling our ethical obligation to communicate information to the client. Often there is more to a situation than we realize. Clients may have reasons for telling us things that we do not understand. The bottom line is that Rule 1.6 allows the client to communicate freely with his or her lawyer without having the lawyer use that information to justify providing lesser representation that s/he would have had the client never talked to the lawyer. Only if the lawyer takes this view of Rule 1.6 can it effectively encourage free communication. The second option is problematic on the other end of the spectrum. Rather than trying to protect herself at the risk of denying Joe the representation he deserves, Jane errs too far in the direction of trying to win at all costs. While Jane must relay the information learned from Linda to Joe, Jane may not encourage Joe to testify to information she knows to be false. Rule 3.3 draws a clear distinction between information the lawyer knows to be false versus that which she reasonably believes to be false. The lawyer may not present the former but may present the latter. When the client in a criminal case wishes to testify to facts the lawyer reasonably believes to be false, the lawyer must allow him to. To the extent that the second option sets forth a situation where the lawyer knows the information is false, the lawyer may not encourage, or present, this testimony.30 For reasons discussed above, we should take issue with Jane’s conclusion

30

Again, you must check the rules in your jurisdiction. While the Model Rules do not allow a lawyer to present testimony of a criminal defendant that the lawyer knows to be false, some

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that she “knows” Joe shot Willie. But for purposes of this problem, assuming she does, she may not encourage Joe’s testimony to the contrary. The third option is marginally better than the first. At least, Jane revealed the information to Joe. However, after doing so, Jane refused to further pursue this defense. Jane assumed Linda was lying based on Joe’s original statement to her. In essence, Jane is penalizing Joe for confiding in her in the first place. Joe would have been better off to have refused to talk to Jane initially. In Jane’s world, clients will be encouraged to never tell their lawyers anything until the lawyer has fully investigated the case and explained all defenses. By talking to his lawyer, Joe limited his options down the road. Therefore, answer (c) runs afoul of Rule 1.6 by penalizing Joe for communicating with his lawyer. The last option is clearly the best. Jane is gathering information without making a value judgment about it. Jane recognizes that Joe may have had reasons for being less than fully honest with her (see the chapter on client relations) during their initial meeting. While Jan recognizes that Joe’s girlfriend may not make the best alibi witness, she is willing to take this lead seriously and investigate further. Jane has not limited Joe’s options based on their initial interview. While many lawyers understand that they are allowed to pursue the line of investigation based on the information received from Linda regarding a potential alibi, and agree that they may present an alibi defense, some remain reluctant to allow Joe to testify in support of this defense. These lawyers might call a dozen family members to say that Joe was with them at the time of the shooting but will not allow Joe to testify because he initially said he shot Willie and, therefore, must now be lying. This logic makes no sense. Rule 3.3 prohibits the lawyer from putting on any evidence she knows to be false. The lawyer who puts on the dozen family members obviously does not know they are lying. The lawyer may reasonably believe they are lying but Rule 3.3 does not prohibit the lawyer from offering this evidence. But Rule 3.3 gives the client’s testimony more protection than that of other witnesses. Unless the lawyer knows the client is lying, the lawyer may not prevent the client from testifying. Therefore, if the lawyer can present a defense through other witnesses, it will never be unethical to present the same testimony from the client. There may be tactical reasons fro advising the client to refrain from testifying, but this is different from the ethical question. Some lawyers might then ask, “But can I help prepare Joe to testify?” My response would emphatically be, “Yes!” Once we have concluded that it is not unethical for Joe to testify, he is surely entitled to the services of his lawyer. Again, Joe should not be penalized for communicating with Jane in the first place. in the above scenario, if Jane develops a strong alibi defense and Joe subsequently decides he wishes to testify consistently with the alibi defense, Jane should advise Joe of the ramifications of his decision (i.e. the pros and cons of him testifying) and otherwise prepare Joe as she would any client.

jurisdictions allow the lawyer to present such testimony in recognition of the countervailing Sixth Amendment right of the client to testify.

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These three examples help illustrate how the lawyer can try to resolve ethical dilemmas in a way that falls on the right side of the spectrum without crossing the line into unethical behavior. By acting on the instinct to always work to help the client achieve his or her stated objectives, the lawyer will look for client-centered reactions to ethical dilemmas. By understanding the Rules of Professional Conduct, the lawyer will know where the boundaries lie and be able to approach them without crossing them. The result will be ethical, client-centered representation.

4

CHAPTER 1

HOW CAN YOU REPRESENT THOSE PEOPLE? THE

SPECIAL ROLE OF THE PUBLIC DEFENDER �

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There are many reasons that public defense should be viewed as a noble undertaking. Those of us who have done this work appreciate the fundamental role that the effective representation of poor people charged with crimes plays in upholding those values that define who we are as a country and maintaining our system of justice. For many of us it is more than a profession, it is a calling. Public defenders are underpaid and often given little respect, nevertheless some of the most talented and marketable lawyers flock to this vocation. We are motivated to do this work for different reasons. Some would say that above all, they do this work because it is necessary to uphold the most important principles of our Constitution; an undertaking central to ensuring a just society. For these lawyers it is about ensuring justice and fairness in the criminal justice system. Others largely see themselves as a check on a government that, if left to its own devises, would abuse its power over our citizenry. These defenders see themselves as the last line of defense between freedom and tyranny. A third group might identify their primary motivation as fighting for people who have always been underdogs. Socio-economic forces increase the odds that certain individuals will fall victim to our criminal justice system. If we, as a society, are unwilling to address these factors on the front end, it is offensive to then treat those who exhibit anti-social behavior so inhumanely when they run afoul of the law. Most of us are driven to this work for some combination of these, or other, reasons. None of us lack compassion or sympathy for those who fall victim to crime. We just believe deeply in the special role the public defender plays in society. However, despite the fact that there are those of us who view indigent defense as one of the most honorable professions a lawyer could choose, there is incredible pressure outside our circle to shun this line of work. Many see it as employment of last resort; reserved for those law graduates who are otherwise unemployable. These critics view public defenders as lazy, and indifferent to the plight of their clients. Some equate the work we do with the crimes our clients commit; they see public defenders as people who coddle criminals and have contempt for crime victims. For this group, public defenders contribute to the deterioration of the moral and social fabric of society. We interfere with their ability to rid society of its predators. Every new public defender must be prepared for the inevitable question from friends and family who do not understand why s/he chose this profession: “How can you represent those people?” For our loved ones who “get it,” they will be confronted with a barrage of comments from people they know like, “Poor Johnny, he couldn’t get a real job,

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huh?” When I started my career as a public defender in Washington, DC, our Chief of Trials had a button in her office that read “Please don’t tell my mother I’m a public defender; she thinks I play piano in a whorehouse.” Most people fail to appreciate the public defender’s important role. To do this work well we must understand, and never lose sight of this important role, and the forces that originally drew us to public defense. The lawyer who fails to appreciate the unique public defender function is at risk of succumbing to the indifference that defines the general attitude towards the protection of the rights of poor people. This lawyer will be unable to resist those forces that drive public defenders to mediocrity. It is the ability to draw on the reasons we chose this profession that will allow us to sustain our inspiration and passion for the work. Without this fuel to one’s internal fire, it becomes very difficult to continue to overcome the challenges that drive public defenders to accept sub-par representation. Understanding and appreciating the special role of the public defender is essential to providing effective representation to indigent defendants. In this chapter we examine the special role of the public defender, highlight the importance of client-centered representation to address challenges unique to indigent defense, and consider various motivations for doing this work. I. The Special Role of the Public Defender Although obvious enough, it is worth noting that the practice of law requires a particular knowledge base and skill set, and that within the general legal arena criminal law is a specialization. One should be no more comfortable having a real estate attorney handling his or her criminal matter than s/he would be having a pediatrician performing his or her open heart surgery. Likewise, within the universe of lawyers who specialize in criminal law, defense work requires an expertise unique from that possessed by prosecutors. This is a less obvious proposition and there are many lawyers who spend their careers alternating between being prosecutors and defense attorneys. Less obvious still is the unique skill set required to represent poor people charged with crime. Not every good criminal defense attorney will make a good public defender. Being a good public defender requires developing an expertise in a specialty (indigent defense) within a specialty (criminal defense) within a specialty (criminal law) within a specialty (law). In short, it takes a very special person to be a good public defender. We need not address the fact that the practice of law requires special knowledge and skills. That is obvious. Nor will we lay out the differences between criminal law and other areas of the law. For anyone reading this, they go without saying. However, we must discuss the difference between the role of the prosecutor and that of the defense attorney. There are distinctions that may not be so obvious but which are critical to our understanding the special role of the defense attorney (and, therefore, the public defender).

6

1. The Unique Role of the Criminal Defense Attorney a. Upholding Justice One Client at a Time The prosecutor and the defense attorney play very different roles in helping to promote the administration of justice. The prosecutor is responsible for ensuring a just result for everyone in society, including the accused. To this end, the prosecutor’s duty to the administration of justice is to search for the truth and advocate for a resolution that takes into account everyone’s interests. The prosecutor must persist in his or her quest to uncover the truth even if doing so would harm his or her chances at securing a conviction. On the other hand, the defense attorney is obligated to look out for the interests of one person only – his or her client. To this end, if suppressing evidence that might help illuminate what actually happened would help his or her client achieve his objective, the defense attorney is bound to keep that information confidential.1 The defense lawyer must advocate for the goals as defined by the client, regardless of the lawyer’s personal opinion about what is best for society in the particular case at hand. This critical distinction is grounded in our Constitution, the American Bar Association Criminal Justice Standards, and the Rules of Professional Conduct that bind all lawyers. The Due Process Clause requires that the prosecutor help ensure the accused is treated justly in the judicial process. According to notions of fundamental fairness that form the basis of our criminal justice system, the prosecutor’s role “is not that it shall win at all costs, but that justice shall be done.”2 Our legal system, based on a notion of justice far broader than the result of any one case, places a commitment to fundamental fairness over the need to secure any given conviction.3 The prosecutor’s central duty in any prosecution is to ensure that this basic notice of justice is upheld. Conversely, the defense lawyer’s contribution to the administration of justice is to serve as the representative of the citizen who is at risk of losing his or her liberty. The Sixth Amendment Right to Counsel ensures that the accused will have “the guiding hand of counsel at every step in the proceedings against him.”4 We recognize that when the awesome powers of the state are aligned against any individual, he must have a representative to help him navigate the complex criminal justice arena. The lawyer’s sole “function is to assist the defendant,”5 and s/he owes a duty of “continuing fidelity to the client.”6 This “duty of loyalty [is] perhaps the most basic of counsel’s duties.”7

1 See The American Bar Association Model Rule of Professional Conduct 1.6.

2 Berger v. United States, 295 U.S. 78, 88 (1935).

3 The idea that a factually guilty person being acquitted can still be consistent with justice is

explicit in our standard for criminal conviction; proof beyond a reasonable doubt. This standard, synonymous with American justice, recognizes that some guilty people will be acquitted because the prosecutor is unable to prove its case. This protection strikes a balance between our desire to hold people accountable for breaking the law and our commitment to minimizing the number of innocent people wrongly accused. 4 Powell v. Alabama, 287 U.S. 45, 69 (1932).

5 Strickland v. Washington, 466 U.S. 688 (1984).

6 Young v. United States ex rel. Vuitton et Fils S.A., et al., 481 U.S. 787, 804 (1987) (citing

Brotherhood of Locomotive Firemen and Enginemen et. al. v. United States, 411 F.2d 312, 319 (5th Cir. 1969). 7 Strickland at 692.

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One example of this stark contrast between these different roles, as defined by Constitutional principles, can be seen with respect to each lawyer’s obligations with respect to disclosing evidence that would help the other side. The Due Process Clause mandates that the prosecutor disclose to the defense any evidence that would help the accused demonstrate that he is not guilty of the charged offense. The defense attorney, on the other hand has no reciprocal obligation and is, in fact, duty-bound to keep confidential any information s/he discovers that would help the state to establish his or her client’s guilt. The American Bar Association’s Criminal Justice Standards and the Rules of Professional Conduct further reinforce the differing roles of the prosecutor and the defender. According to the ABA Criminal Justice Standards,8 the prosecutor has a duty “to seek justice, not merely to convict,” while the defense attorney helps promote the administration of justice by advocating for the interests of the accused. The Rules of Professional Responsibility further dictate that the defense lawyer is required to “subordinate the interests of others to those of the client.”9 The Rules of Professional Conduct also require the prosecutor to refrain from proceeding on a charge that the prosecutor knows is not supported by probable cause10. Conversely, the defense attorney must seek to achieve the objective dictated by the client, including an acquittal, regardless of his or her belief about the guilt of the client or the heinousness of the crime11. To some laypersons, the notion that the defense attorney is required to help the accused win an acquittal when the lawyer may be convinced of his or her client’s guilt, and must keep confidential evidence that would prove that the defendant is guilty, runs counter to their notion of justice. But understanding history, the men who drafted our Constitution were keenly aware of the danger to all of us if the government is allowed to point an accusatory finger at any citizen, embroil that person in a complex legal system through which he cannot maneuver, and use the outcome to take the citizen’s freedom. A lawyer who is loyal to the accused is critical to protecting each of us should we ever find ourselves in that position. If the lawyer is allowed to betray the client’s confidence, the accused would remain suspicious of his counsel. By undermining the attorney-client relationship, we would promote the danger the right to counsel was meant to protect us against. Because this right protects the innocent as well as the guilty, its preservation is more critical to the broader concept of justice than the result of any one case. If every person had the education and experience to adequately defend against the government’s attempt to take their liberty, we might be far less threatened by the idea of the individual standing alone against the power of the state. The defense lawyer is a measure to further level the playing field by giving the accused counsel and voice. While it is understandable that a layperson, not educated in the principles that make up the foundation of our freedoms, is unaware of the duty the defense lawyer has to his or

8 Compare ABA Criminal Justice Standard 3-1.2(c) (The Prosecution Function) and Standard 4-

1.2(b) (The Defense Function). 9 American Bar Association Rule of Professional Conduct 4.4, Comment 1.

10 Rule 3.8.

11 See Rule 1.2 (dictating that the lawyer must abide by the client’s decisions about the objectives

of the representation) and 3.1 (defending a defendant the lawyer believes to be guilty does not violate the Rule against advancing frivolous claims).

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her client, and how it differs from the role of the prosecutor, surprisingly many prosecutors fail to appreciate this critical distinction. Far too often, prosecutors put winning ahead of process. They value convictions over justice. Convinced that the accused is guilty, some prosecutors in possession of exculpatory evidence refuse to disclose it out of fear that the defense will be able to use it to win an acquittal. For these prosecutors the outcome of the case at hand is more important than their role in fostering a system of justice that sets us apart from other countries less committed to individual freedoms. These prosecutors believe that if the defense is not required to be primarily committed to the truth, they should be held to no higher standard. Unfortunately these prosecutors confuse justice with winning, a misunderstanding that threatens the principles that define our system. b. The Human Side to Representing People

�

At its core, being a criminal defense attorney is about representing people at their time of greatest need. This duty carries with it two roles: that of advocate and that of advisor. Because the defense attorney represents a person, whereas the prosecutor speaks for the sovereign, s/he has a special obligation to endeavor to understand the client and the forces that landed him or her in the criminal justice system. As the accused’s advocate, the defense attorney is responsible for being his or her mouthpiece. It is the obligation of defense counsel to tell the client’s story at every stage of the process. The lawyer speaks for the client every time s/he advocates in court, whether it is at a bond hearing, a pre-trial conference, a trial, or a sentencing hearing. The lawyer also speaks for the client out of court whether during plea negotiations, press conferences, or any other forum where the lawyer provides information about the case. Telling another’s story cannot be done without first learning about the circumstances that shaped the individual and communicating with him or her about the narrative that must be conveyed. The defense lawyer is also obligated to learn about the client in order to fulfill his or her obligations as advisor. The lawyer is not simply required to instruct the client about the law and leave him or her to his or her own devices in making important decisions. The lawyer must counsel the client and, in doing so, take into consideration moral, economic, social, and political factors that might impact those decisions.12

12

See ABA Rule of Professional Conduct 2.1.

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Therefore, the defense lawyer is not only a master of the law. S/he must be an investigator, a counselor, and a social worker. The job is not strictly professional. To do it well it must be personal. The defender takes a person’s life in his or her hands and must become invested in that person, and the pursuit of his or her goals, in order to fulfill the lawyer’s professional obligations. As a tireless advocate for people accused of the most heinous crimes, Sister Helen Prejean summed up the human element to this work: “The dignity of the human person means that no person is as bad as the worst thing they’ve ever done.” The advocate must understand the whole person in order to represent him or her. In doing so, it is impossible to be indifferent to the result. On the other hand, the prosecutor does not represent an individual. The prosecutor represents the sovereign and the ideals that underlie the justice system. In theory, the prosecutor should be no more concerned about achieving justice for the victim than for the accused. In theory, the prosecutor should endeavor to present the best case against the accused as possible and then celebrate acquittals and convictions equally, as each represents the just administration of justice. For the prosecutor, it truly should not be personal. They present the evidence and the jury does its job. In practice, this hypothetical prosecutor is very hard to find. Most prosecutors see themselves as representing the crime victims. Many treat the victim as their “client.” In doing so they become very personally invested in achieving the outcome the victim desires, which often leads to the perversion of justice. These prosecutors routinely refer to the complainant as “my victim,” and frequently lead the complainant to believe the prosecutor is his or her lawyer. However, this is a fundamental misunderstanding of the role of the prosecutor and how drastically different it is from that of the defender. 2. The Added Challenge of Representing the Indigent Client Whether the defense attorney is representing a paying client or an indigent defendant to whom s/he is appointed, the role described above is equally applicable. However, for the indigent defender, there are further challenges that require an additional skill set. The public defender does not get to choose his or her clients; and the indigent defendant does not have a choice over his or her counsel. As a result there are obstacles the public defender will confront that are unique to the practice of working with poor people. a. The Public Defender Does Not Choose His or Her Client The public defender makes a commitment to represent anyone who needs his or her help. While there may be the rare case in which a particular public defender is conflicted for personal reasons, as a general proposition, the indigent defender must take whatever cases are assigned.13 Some lawyers decide to specialize in criminal defense work because they are outraged by the number of wrongful convictions that have come to surface and want to represent people who are factually innocent. Others may be attracted to this work out of a desire to counter what they see as misguided policy, such as the criminalization of drugs. The public defender must be motivated by a broader purpose. S/he will not have the luxury of only representing the innocent or of maintaining a caseload comprised solely of drug offenses. There are lawyers who

13

Most obviously, a lawyer who is a crime victim could not represent the person accused in that case. There may be other reasons to decline representation, such as a workload crisis that will render the lawyer ineffective. However, our discussion in this section is limited to aversion to representation for personal reasons.

10

refuse to represent clients who hold certain views: such as racists, anti-semites, or misogynists. Others are unwilling to represent a client accused of a particular crime such as child molestation, domestic violence, or police brutality. The public defender cannot be so discriminating. While the private criminal defense lawyer has the luxury of turning down cases that are repugnant to him or her, or of selecting cases that promote a particular cause that is dear to his or her heart, the public defender does not. Not being able to choose one’s clients may present a challenge for some public defenders. Therefore, before embarking on this career path, the potential public defender must find motivation beyond the type of case or the characteristics of the client. S/he must internalize the ideal that there is something at stake far greater than the charged offense or the views of the client, and relish the prospect of fighting to promote this larger mission. For this reason, it is essential that the public defender identifies and embraces some motivation for doing this work and holds on to it as a way to continue to inspire excellent advocacy. While this would be beneficial for the private lawyer as well, it is imperative for the public defender. A discussion of some motivations for representing indigent defendants will be discussed in Section II. � �� The Indigent Defendant Does Not Choose His or Her Lawyer�

There is a second challenge that always looms over the public defender that private lawyers can far more easily avoid; building a relationship and earning the trust of a person who did not request the lawyer’s services and who is deeply suspicious of the lawyer’s reasons for taking his case. When a person decides to pay handsomely for the services of a lawyer, s/he tends to start off far more willing to work with the lawyer and much less suspicious of his or her motivations. For the indigent defendant, there are always a myriad of questions. If a lawyer is any good, why did he or she become a public defender? Doesn’t the public defender work for (and with) the same sovereign who is trying to take away my freedom? Doesn’t the public defender get paid the same amount whether my case pleads out or goes to trial and, if so, don’t they have an incentive to push me into a plea? This understandable suspicion makes the job of the public defender that much more difficult and makes the obligation to invest the time and energy into building a relationship with our clients more imperative. Therefore, for the public defender, relationship building skills are elemental to the job.14 Even after the public defender has developed a healthy attorney-client relationship, these suspicions will often still linger. The public defender must always be mindful of the client’s perception of court appointed counsel. With private counsel the client pays for the peace of mind of feeling that his or her advocate is truly on his or her side. The public defender must continually prove it. II. Client-Centered Representation Because the indigent client does not get to choose his or her lawyer, it is incumbent upon the attorney to provide the quality of representation that a wealthier client could afford. Because the public defender does not get to choose his or her client, it is essential that s/he not lose sight of the human quality of each client and succumb to the

14

See the Chapter in this manual on Building the Attorney-Client Relationship.

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assumptions and stereotypes that others have about poor people accused of crimes. These factors, unique to public defense, make the application of a client-centered practice critical for the indigent defender. The term client generally refers to an individual who retains the services of a professional in a given field. Whether the professional hired is a landscaper, a stockbroker, or a real estate agent, s/he is an employee of, or consultant to, the client, who expects to retain a significant degree of control over the relationship. When one pays a professional for services, s/he expects to receive the agent’s advice about the options available, and the various ways to achieve the possible goals presented. However, after receiving the advice, the client has the authority to make the ultimate decisions. While a client may defer to the professional at times, s/he does not assume the agent will make a decision without his or her being consulted. Nor does s/he expect the agent to override his or her directive. Just as this applies to persons retained to groom one’s lawn or manage one’s finances, it applies to someone retained to protect ones’ liberty. A person sufficiently educated about the legal system, and wealthy enough to shop around for counsel, will demand that his or her lawyer defer to him or her with respect to important decisions in the case. Otherwise, the person will retain another attorney who will. Public defenders understand as well as anyone that the quality of representation one receives when facing a loss of liberty should never depend on one’s income. Neither should one’s ability to make decisions about the most important issues in one’s life. The indigent defendant does not have the luxury to shop around for a lawyer who is willing to educate him or her about his or her circumstances and respect his or her freedom to make important decisions about the representation. It is therefore imperative that embrace that role. Because public defense is fundamentally about giving voice to the voiceless and power to the powerless, the lawyer for the poor must endeavor to empower his or her client. Because no one else in the criminal justice system may respect the indigent client, it is that much more important that his or her lawyer does. Client-centered representation requires that the lawyer use his or her education, experience, and talent to arm the client with the advice necessary for the client to control the representation consistent with the client’s desires. In this way it empowers the client to receive the same quality of representation as that of a person who has more choice based on his or her education and income. Client-centered representation rejects the notion that the indigent client is too ignorant, or too immoral, to make the best decisions for himself or herself. It discards the belief that a value system that differs from the lawyer’s is objectively flawed. Rather than requiring the client to conform to the lawyer’s notion of how s/he should make life-impacting decisions, client-centered representation demands that the lawyer invest the time and energy to understand the client and the circumstances that brought him or her to the criminal justice system, that s/he respect the choices the client makes about the representation, and that s/he advocate consistent with the client’s stated desires. a. Lawyer’s Role as Advocate: Best Interests v. Stated Interests There are people who believe the role of the public defender is to save the client from himself or herself. They believe that indigent clients are incapable of making wise decisions. Some would argue it is because the indigent clients are uneducated and they

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cannot understand the consequences of their decisions. Others might say it is because they have been shaped by an anti-social environment and that their decisions will perpetuate a cycle of anti-social behavior. For those who fall into this camp, known as the “Best-Interests” camp, the lawyer should control the representation (with the exception of those decisions to be made by the client explicitly under the Rules of Professional Conduct).15 As public defenders we must reject this notion.16 As a matter of equality, a paying client would not stand for a lawyer who continually usurped his or her authority to decide his or her fate. S/he would express his or her dissatisfaction by hiring another lawyer. The poor defendant should be no more required to give up his or her autonomy. As a matter of respect, we cannot hold the view that our clients have flawed value systems. People attach different weight to positive and negative outcomes. Some people view a year in prison as a significantly greater hardship than others. For some a conviction may mean losing their ability to live in public housing, maintain their job, or gain citizenship. Some could easily complete probation while others recognize they could not last a week under supervision. Whether the issue involves where a sentence will be served, the personal consequences to cooperating with the prosecution, or the likelihood of completing a drug treatment program, these are very personal decisions. Not only should decisions affecting post-conviction consequences be respected, but so should other aspects of the representation as well. For example, a client may have personal reasons for wanting to call, or not call, certain witnesses. This decision should be respected, as the consequences to the client or his or her family may be something the lawyer is unable to appreciate but which the client is acutely aware. Therefore, the client-centered public defender must always look out for the client’s stated interest, not the best interest of the client as determined by the lawyer. Only under this model can the public defender maintain the autonomy and respect in the representation that wealthier clients take for granted. b. Lawyer’s Role as Advisor: Helping the Client Make Informed Decisions Under a client-centered model of representation, the lawyer must advocate for the client’s stated interests. The lawyer is not the decision-maker when it comes to important aspects of the representation; these decisions are left for the client. However, the lawyer plays a critical role in helping the client make informed decisions. This speaks to the public defenders role as advisor. While the public defender appreciates that the client has life experiences and a value system that will make up an important component of the choices the client makes about the representation, there is much more that must inform his or her decisions. Through his or her education and experience, the lawyer will be able to address the legal issues

15

See ABA Model Rule of Professional Conduct 1.2. This will be discussed in more detail in the Chapter on Ethics, Doing Right By Your Client While Doing Right. 16

Others would agree that the lawyer should pursue the stated interests of the adult client but should employ the best interests standard for juveniles. This notion should be equally rejected in favor of the view that young offenders are entitled to the same respect and autonomy as their older counterparts. In a justice system where we are increasingly willing to hold juveniles accountable as we do adults, this is a hypocritical proposition.

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that must inform the client’s judgment. Through investigation, discovery, and other fact gathering methods, lawyer will have access to factual information that must guide any evaluation of the case. Due to the lawyer’s professional expertise, s/he will be able to lay out the various strategies and options available to the client and the costs and benefits to each. Without this assistance, the client cannot make an informed decision. The lawyer’s role as advisor is essential to empowering the client under the client-centered representation model. However, the lawyer’s obligations under this model do not end once the necessary information is conveyed. Once the client is aware of the legal and factual landscape before him or her, understands the options s/he faces, and appreciates the pros and cons of each, the client need not make a decision on his or her own. The lawyer should continue to provide guidance and counsel to the client. Nothing about a client-centered model of representation says that the lawyer must remain neutral about important decisions. When the lawyer feels strongly about a particular course of action s/he should encourage the client. The amount of persuasion employed by the lawyer should be proportional to how strongly s/he feels about the advice. For very important decisions, the lawyer may enlist the help of the client’s family or of colleagues to help persuade the client. As long as the lawyer ultimately respects the client’s decision, his or her pushing for a course of action is perfectly consistent with client-centered representation. c. Client-Centered Representation is at the Heart of Public Defense Every criminal defense lawyer should endeavor to provide his or her client the quality of representation s/he would want for his or her loved ones. This includes respecting the client’s choices about his or her life. If a private lawyer gives any less, the paying client will find another advocate. Client-centered representation is essential to providing this service to the poor defendant because s/he does not have the luxury to go elsewhere. However, it is not only critical to ensure that the indigent client gets the representation s/he deserves, it is also essential to ensure that the public defender remains true to his or her role in the criminal justice system. Outside the public defender community, there is tremendous pressure for the public defender to water-down, if not completely abandon, his or her role. The media continuously bombards us with messages that the criminal defendant is less than human and that the criminal justice system provides criminals with too many protections. Friends and family routinely question the loved one who is a public defender about why s/he works so hard or cares so much. Crushing caseloads and inadequate resources cause the public defender to question his or her effectiveness and to accept the status quo. Judges and prosecutors frequently push public defenders to become part of a system that quickly processes people in an effort to clear dockets, rather than dwell on the humanity of each person. “Don’t take it personal,” is the cry that urges the public defender to become desensitized to the plight of the client. Within our community, there can be subtle pressure to stray from the role as well. In an effort to cope with the pressure, many defenders turn to ridiculing their clients. They may joke about the stupidity of something a client said or laugh about a defendant’s seemingly foolish behavior. Some lawyers who have learned to deal with the unfairness

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of the system by becoming numb to it may question why a young idealistic defender spends so much time at the jail with his or her clients. By embracing client-centered representation as the essence of public defense, the lawyer will be better equipped to resist these forces. By being conscious to treat the client with the same respect the lawyer would demand if the roles were reversed, the lawyer will less readily let go of the his or her important role in the system. The first step to becoming desensitized to the plight of the indigent defendant, and ultimately to abandoning one’s role as a public defender, is to stop seeing the client as human. By forcing oneself to understand and respect the client, the public defender can remain true to his or her role. Without a client-centered perspective, resistance to become mediocre will be challenging. III. Motivations For Doing This Work As argued above, to sustain oneself in this line of work, with the idealism and passion necessary to avoid “burnout,” the public defender must maintain a conscious and keen appreciation for those factors that drew him or her to it in the first place. For many of us, the primary force that drew us to the profession was the client. Therefore, by getting to know our clients and understand their circumstances, elements essential to a client-centered practice, we can derive motivation for doing the work. Our clients are themselves an incredibly powerful source of motivation for our work. Almost without exception, when we get to know our clients beyond the circumstances of the case, we find that we represent good people who may have done a bad thing. We find out information that often makes them sympathetic and likeable. Sometimes it helps us understand why they acted as they did. Other times we still struggle to comprehend the reasons behind their behavior but want to be in their corner nonetheless. Every public defender who takes seriously his or her obligation to learn about his or her clients can tell countless stories of broken people in desperate situations. These are people who are not factually innocent, but who we nevertheless want to fight for. Theirs are stories that will drive you to tears. They are stories that, but for a caring advocate, would remain untold. They are stories like that of Maria. One of 13 children, raised in a household with a single, drug addicted mother, Maria never learned what a good parent looked like. She suffered from mental retardation and slipped through the cracks at school. While just a teenager she had a child of her own. Without any guidance or support, despite her best efforts, she woke up one day to find that her infant son was not breathing and was turning blue. Desperate, she called an ambulance. By the time help arrived her child was dead. The prosecutor charged Maria with felony murder, a crime that carried a minimum sentence of thirty years in prison. I absolutely wanted to be on Maria’s side. They include stories like Stephan’s, a teenage boy who was forced to grow up in a very violent and unforgiving neighborhood. After being assaulted and robbed on several occasions, he followed in the footsteps of too many young men who grew up in similar circumstances. He bought a cheap handgun to protect himself. One day, while Stephan was talking to a young woman on whom he had a crush, the gun accidentally discharged, sending a bullet through his coat pocket into the girl’s chest. The girl fell and Stephan dropped to his knees, weeping and apologizing. He told the police everything that happened. He could not have been more remorseful. Unfortunately the

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girl died. Despite Stephan’s tender age of fifteen, and the fact that the crime he committed was clearly manslaughter, the prosecutor charged him with murder in order to try him as an adult.17 Stephan never denied responsibility and pled guilty to manslaughter. With incredible community support, a client with no history of violence who accepted full responsibility for his actions, and no reason to believe Stephan would reoffend, we put together a persuasive sentencing argument for probation. The judge sentenced Stephan to serve at least twenty-one years in prison with a maximum sentence of life. Stephan’s story, combined with the understanding that others in the criminal justice system would be all too willing to throw this young life away, provided motivation to be on his side. The stories are of men like Ricky. Charged with a string of burglaries, and with a long record of property and drug offenses, Ricky was seen by everyone outside his defense team as a menace. To the outside observer, there was little reason to feel sympathy towards Ricky. But Ricky had a tragic story. He was uneducated and drug addicted. His elderly mother could not support him and he had no one else in his life that cared about him. His circumstances rendered him homeless and his drug addiction left him afflicted with AIDs. Ricky burglarized homes to survive and feed an untreated drug habit. While society refused to give Ricky shelter, food, or medical care while he was living on the streets, it was eager to pay to incarcerate him for years. Ricky was convicted and sentenced to a prison term that would ensure he would die in prison. When prison medical staff told Ricky that he had six months to live, and despite the fact that he was weakened to the point of immobility, the judge refused to allow him to return home to his mother. Ricky died alone in a cold prison cell. The world is filled with Marias, Stephans, and Rickys. As public defenders they are the people we represent. Theirs are the stories that keep us awake at night. By tapping into these stories, and by learning about the circumstances that bring indigent defendants to the criminal justice system, many public defenders find motivation to do this work. At its core, public defense is about representing people, and through a client-centered practice the public defender learns his or her clients’ stories. Almost without exception, the lawyer will find something about the client that motivates the representation. But motivation can also come from forces external to the representation. Some of this motivation can come from more abstract ideals like the importance of upholding those fundamental principles that define our system of justice and of ensuring that those in positions of authority do not abuse their power. These motivations are eloquently discussed in two pieces reprinted below. The first is a chapter from a book entitled From Freedom to Slavery by Gerry Spence, one of the greatest trial lawyers of our era. The second is an article written by Professor Erin Murphy and published in The Champion magazine. Although Professor Murphy now teaches law at UC Berkeley, this article was written when she was a very young public defender. These two pieces are written by people with vastly different experiences with the criminal justice system: the first is the perspective of a successful private lawyer while the second is that of a fledgling public defender. Nevertheless, as you read them, notice the common themes that each address. Both lay out powerful motivations for representing the most despised among us.

17

Under the law of the jurisdiction at the time, a juvenile could be tried as an adult for murder but not for manslaughter. The prosecutor had the discretion to make the charging decision. Once charged as an adult, the defendant remained in adult court regardless of the ultimate offense of which he is convicted.

Electronic copy available at: http://ssrn.com/abstract=1136056

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WHOSE STORY IS IT, ANYWAY? –GUIDING STUDENTS TO CLIENT-

CENTERED INTERVIEWINGTHROUGH STORYTELLING

LAURIE SHANKS*

Persuasively telling a client’s story is vital to meaningful and suc-cessful representation. This article explores both the challenges fac-ing students as they try to master this skill as well as the challenges ofteaching this skill through the lens of one simple exercise. This exer-cise has proven extremely effective in teaching law students criticallessons about client-centered interviewing. Conducted effectively,and coupled with directed discussion, the exercise has also been inval-uable for teaching client-centered representation, interviewing tech-niques, attorney-client confidentiality and the impact ofdemographics on the attorney-client relationship. Through their expe-rience with the exercise, each of these concepts acutely resonates withthe students. By completing the exercise, law students come awaywith a commitment to telling their clients’ stories, and the skillsneeded to do it well.

“My job is to tell my client’s story, and to do that I really haveto get to know him.”1

I. INTRODUCTION

“How to hear” is what I teach. It isn’t easy. Law students don’tknow how to listen to a client’s pain, fear, anger or despair. Such aconnection isn’t lawyer-like, they feel, or goes against the “issue, rule,analysis, conclusion” format drilled into them in their first yearcourses. Early in their law school experience, many students are con-sumed by the competitive academic environment—concerned exclu-sively with their grades, their future careers, and their present life

* Laurie Shanks is a Clinical Professor of Law at Albany Law School. The authorthanks Albany Law School student Molly Adams for her support and assistance.

1 Lieutenant Commander Charles Swift, Attorney for Salim Hamdan, a Yemeni citi-zen declared an “enemy combatant” and incarcerated at Guantanamo. Swift successfullyargued that Hamdan should have access to the court system in the U.S. Supreme Court,Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006). Jonathan Mahler, Commander Swift Objects,N.Y. TIMES, June 13, 2004 (Magazine), available at http://www.nytimes.com/2004/06/13/magazine/13MILITARY.html?ex=1402545600&en=506e105e040960d9&ei=5007&partner=USERLAND.

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Electronic copy available at: http://ssrn.com/abstract=1136056


510 CLINICAL LAW REVIEW [Vol. 14:509

choices and challenges. For almost twenty years, I have sought toovercome these barriers. My goal is to change the students’ focus tothe client, to hear what the person across the desk, in the chair, orbehind the lock-up bars is saying – what her story is, and what thatstory says about her and the law.

The need to listen empathically can be difficult even when theclient is similar to the student. The problem is even more challengingif the client is “different” as defined by race, ethnicity, gender, age,economic background, or sexual orientation. It is also daunting if theclient is accused of doing something “bad” such as committing acrime, particularly if the crime is considered especially reprehensible,such as assaulting or sexually molesting a child. Add to that issues ofmental illness, drug addiction or mental retardation, and the project isharder still. It is often in the context of the initial client interview thatthese issues first manifest themselves.

Many practitioners, even experienced ones, are unable to meettheir clients’ needs. While more confident than law students, exper-ienced lawyers often have a limited view of what is required for com-prehensive representation. Practitioners commonly concentrateprimarily on attempting to obtain the type of information they willneed to draft legal pleadings or prepare for trial, while ignoring theskills necessary to establish a relationship with the client, even whenthey acknowledge and can articulate the importance of such aconnection.

In teaching my law students, I want to produce lawyers who dobetter than this. I draw on my experience and have developed tech-niques to train law students to become client-centered attorneys fromthe start of their careers. This article describes one example I haveused to teach the skill of client-centered interviewing. I have devel-oped an exercise that I call “Whose Story Is It?” which requires stu-dents to learn for themselves what it means to be both a lawyer and aclient. At the beginning of a trial practice course, students learn thatthe essence of the trial is the lawyer telling the story of another (theclient) to the judge or jury. The exercise makes the concepts of confi-dentiality, self-disclosure, diversity, and theory and theme at trialcome alive.

There are many barriers preventing attorneys from approachingtheir practice in a client-centered way, but there are techniques whichare successful in teaching students and practitioners alike to confrontthese barriers. The exercise described in this article was developed asa tool to bring law students out of the competitive academic world andinstill in them the value of truly listening to their clients. It is alsouseful to practitioners who must remember the importance of client-


Spring 2008] Whose Story Is It, Anyway? 511

centered interviewing, a skill which can get lost in a busy practice.

II. RAPPORT BUILDING HURDLES: “THE DEPARTMENT OF

MOTOR VEHICLES (DMV) INTERVIEW”

In addition to law school teaching, I teach nationally at TrialPractice Institutes2 and CLE seminars. Some of these programs arebroad-based state bar sponsored events, attracting civil and criminaldefense practitioners in public and private practice; several are limitedto criminal defense attorneys. Many of the attendees at these trainingprograms are attorneys in Public Defender offices or those who han-dle a significant number of court-appointed cases in which they re-present indigent persons facing criminal charges.

Client interviewing is a standard skill taught at Trial Practice In-stitutes. Generally, each lawyer/participant is asked to do a mock in-terview of an actor who is playing a client charged with a criminaloffense. The actors are experienced professionals who are briefed ona simulated case and who stay in character throughout the exercise.The actors are given specific direction concerning the reactions andemotions they should express about various topics that are likely tocome up during the interview.

The actors hired are various ages, races and ethnicities and playclients from different economic and educational backgrounds. Someare told to express pre-conceived notions about an attorney’s abilitiesbased upon age, experience, or whether the attorney is court ap-pointed or privately retained. Some actors are instructed to exhibitsigns of depression or other mental illness or to be fixated on oneissue confronting them, such as potential job loss, what happened totheir car when they were arrested, or whether their attorney believesin their innocence.

Participants at the Trial Practice Institutes are asked to assumethat they are meeting their client for the first time and are told to startthe exercise by explaining what it is they wish to accomplish duringthe interview. Experienced lawyers tend to state their goal as “estab-lishing rapport” by “gaining the trust” of the client. They understandthat making a personal connection with the client is essential if theyare to be successful in the subsequent representation.

Once they state their objectives, each attorney is given ten or fif-teen minutes to meet with the “client” while the other members of the

2 I have taught each summer for the past 19 years at the National Criminal DefenseCollege (NCDC). The College attracts criminal defense practitioners from across the na-tion for intensive hands-on instruction and practice. The College is housed at Mercer LawSchool, Macon, Georgia under Professor Deryl Dantzler, Distinguished Professor of TrialAdvocacy, Dean of NCDC, and Director of Trial Practice.



trial practice group and the faculty members observe the interaction.The actor/client responds to the attorney according to the instructionshe or she has been given and stays in character throughout theexchange.

Of course, having and stating a particular goal does not mean it isattainable. Often an attorney’s desire to establish rapport or gaintrust does not translate into making such a connection. At the conclu-sion of the exercise, when the actors are asked, in character, how theyfeel about their attorney, the majority of them respond, “He doesn’tcare about me,” “She doesn’t believe me,” or “If I had money, I couldhire a good lawyer.”

Why the disconnect? The lawyer wanted to connect. The clientwanted to connect. Yet, there was no bridge. The explanation, quiteoften, is the common experience of something I call “The Departmentof Motor Vehicles Interview” (“DMV Interview”). In attempting toanalyze the problem of lawyers who want to establish rapport andtrust in the attorney-client relationship but nonetheless fail to do so, Ihave been struck by one consistent observation. Virtually every attor-ney I have observed, from brand new lawyers to those with twentyyears experience, initiates the attorney-client relationship with the“DMV Interview.”

The “DMV Interview” has defining props: a legal pad or folderand a pen. The attorney sits down, pen in hand, almost always acrossthe table from the client, and places the pad on the table. Some attor-neys put the pen down in order to shake the client’s hand, but a veryhigh percentage cling to the pen from the moment they walk throughthe door to the moment the two part company.3

This interview generally starts in one of two ways. A substantialnumber of attorneys do not even tell the client their name or officeaffiliation before launching a pre-set series of questions. Anothergroup of lawyers gives a “speech” at the beginning of each interview,explaining confidentiality in the attorney-client relationship and thenature of the charges or the legal difficulty they believe the client isconfronting. These lawyers then proceed to the same set of questionsthat the first group asks.

The questioning by the lawyers is primarily aimed at gatheringthe client’s personal identifying information. The questions generallyfollow this pattern: “What is your name?” “Address?” “Date ofbirth?” “Social security number?” “Are you married?” “What isyour spouse’s name?” “How many children do you have?” “What

3 I hope in the new technological age that the DMV Interview is not newly defined bythe use of a laptop computer or a “BlackBerry,” either of which will create equal or moredistance between the attorney and client than the pen and paper.



are their names and ages?” “Are you employed?” “Where?”Rarely does the lawyer explain to the bewildered or apprehensive

client why the questions are important or how the answer will beused. Typically, the lawyer’s eyes are focused on the legal pad as he orshe writes down the responses, with darting glances toward the client’sface only as the next question is being asked. The lawyer is obliviousto a client’s rolling of the eyes, slouching in the chair, and stiffening ofthe jaw and arm muscles. Downcast eyes, tearing, and hand wringingare easily missed.4

More significantly, the script rarely changes even when the clientchanges. The client’s essential identity seems to have no impact on thequestions asked or the “speech” delivered. Whether the actor playingthe client is the same or a different race than the attorney, older oryounger, exhibiting signs of mental illness, or has been told that, forthe purposes of the exercise that he/she is illiterate or has a collegeeducation, the type and manner of the attorney’s questioning remainsvirtually the same.

Complex legal terms, such as indictment, bail, information, dis-covery, and predicate offenses are used without explanation or an at-tempt to determine the client’s level of understanding.5 Persistentquestions by the “client” about eviction, job loss, or other matters notconsidered relevant by the lawyer are generally ignored or met withirritation or explanations that those matters will be addressed at a“later” unspecified time.

When they listen to the actors being questioned afterward, theattorneys are dismayed to learn that their “clients” have a negativeview of the initial interview. They are also defensive about the need

4 I teach each summer at the New York State Defenders Basic Trial Skills Program, aprogram developed specifically for public defenders in their first years of practice. It is avery innovative program, in which each group of participants is “coached” by a team ofinstructors which includes both an experienced attorney and an actor or communicationexpert. These non-lawyer team members provide invaluable feedback to the participantsabout the “clients” in terms of their non-verbal communication and reactions to their at-torneys. They point out the missed cues and discuss their significance, for example thedowncast eyes may be the result of embarrassment or may signal the need to explore moreserious considerations such as depression. Sensitivity to cross-cultural and economic dis-parity issues is stressed throughout the week-long program.

5 See generally STEFAN H. KRIEGER & RICHARD K. NEUMAN, JR., ESSENTIAL LAW-

YERING SKILLS: INTERVIEWING, COUNSELING, AND PERSUASIVE FACT ANALYSIS 262(Aspen 3rd ed. 2007) (providing examples of how lawyers frequently miss verbal cues andbody language from clients and how that can work against the development of a trustingattorney-client relationship); see also Gay Gellhorn, Lynne Robins & Pat Roth, Law andLanguage: An Interdisciplinary Study of Client Interviews, 1 CLINICAL L. REV. 245 (1994)(emphasizing the role of language and clear communication in establishing a trusting attor-ney-client relationship). The actors at the Trial Practice Institutes provide strikingly similarfeedback when asked about the interview. They note that some attorneys never made eyecontact, didn’t explain legal terms, or failed to listen to their concerns.



to quickly obtain demographic information.

I can’t help him unless I know something about him.I only have ten minutes to see him in lockup.If she wants to get out on bail, I need to know whether she has a jobor not.How will I know how strong the case is if I don’t ask any questions?

The attorneys are also quick to place any blame for lack of rap-port on the client or “the system,” and express such sentiments as:

I work my butt off for these guys and all I hear is that they want a‘real lawyer.’I feel sorry for her, but the only way she is going to see her kids is ifshe cooperates with me.I’m an attorney, not a social worker.Our office isn’t allowed to go to Family Court and that’s all hewanted to talk about.How am I supposed to know if someone is mentally ill?The Judge is going to be on the bench in twenty minutes; if I’m notready, I’m in big trouble.When I go to the jail I have ten guys to see; I don’t have time to hear asob story from every one of them!

These are typical reactions of experienced attorneys whenpresented with the dilemma of the need to quickly obtain informationand establish rapport with their clients. The “DMV Interview” helpsto explain this dichotomy between the lawyer wanting and needing toobtain information from a client and that client’s negative perceptionof the attorney as a result of the interview process. I use the DMVconcept to help train attorneys to fulfill their goals of establishing rap-port and trust with the client, while still eliciting the information theyrequire.6

After the actors have left the room, I ask the lawyers to reflectfor a few moments on who they are and where they stand in society.Although many of the lawyers I teach are young public defenders, andare therefore poorly paid in comparison to successful corporate attor-neys and other attorneys in private practice, in a more global contextthey are all quite privileged. By definition, they have succeeded inundergraduate and law school, have passed the Bar exam, and havejobs. In addition, although some come from impoverished back-grounds, many acknowledge they are privileged in a more absolute

6 See generally Linda F. Smith, Client-Lawyer Talk: Lessons From Other Disciplines,13 CLINICAL L. REV. 505 (2006) (illustrating the importance of establishing trust with cli-ents throughout the interview as a cooperative conversation).



sense, having grown up in a middle or upper class family, having ac-quired a graduate degree, being a member of a profession, having asupport network, and the like.

After discussing their relative prosperity and professional status, Iask the attorneys, “When was the last time that someone asked youthe types of questions you asked your client in the exercise? Whenwas the last time you were asked a series of pedigree questions likethe ones you just asked?” The answers vary, “When I applied for apassport.” “When I filled out the application to come to the TrialPractice Institute.” “When I was getting a loan for my house.” “I justmoved and had to re-register to vote.” “I bought my first car.”

I ask the attorneys what all of the answers have in common.Rarely do any of the lawyers see any connections. I point out thatwhen privileged people are asked such questions, they consider themroutine, even boring, and answering the questions typically results insomething positive, e.g. obtaining a passport, renewing a driver’s li-cense, approval of a home loan, registering to vote in the nextelection.

Our discussion moves to the other set of interactions where thisquestioning is common, which happen to be more often the experi-ence of poor people: when probation is revoked, food stamps are de-nied, children are removed from their home, warrants are executed,family members are arrested, evictions occur, deportations are initi-ated. And who asks these types of questions? Federal, state, countyor city employees with forms to fill out. These are officials who maybe viewed by the clients as bureaucrats, at best, and bullies, at worst.They are police officers, probation officers, immigration officers, andsocial services workers. They are certainly not individuals whom theclients trust as their advocates.

How are these questions that result in terrible things happeningto future clients of the students and practitioners asked? Generally, inthe same rapid-fire manner, with little or no intonation, little or noreaction regardless of the answer, and with little or no eye contact,smiling or other non-verbal acknowledgment. And always, bingo,with a pen and paper on a desk in between the questioner and theclient.

I then ask the attorneys to view their behavior from the client’spoint of view. Why would their client have reason to believe that theattorney was any different from the police officer or probation of-ficer? In fact, how would the client even know who the attorney wasor why he or she was asking the questions? Was an introductionmade? Was an explanation given? Why were the questions asked?Who would see the answers that were written on the pad of paper?



The lawyer knew what was necessary to open the file or to prepare thebail application, but how could he assume that the client would under-stand that?7

For those lawyers who begin the interview with a preparedspeech about confidentiality and the nature of the proceedings, I askhow they can gauge their client’s level of understanding. Do theyknow if English is their client’s first language? If their client is liter-ate? What their client’s level of education is? Do downcast eyes sig-nify understanding, mere acquiescence, or acute embarrassment? Aretwitching limbs a sign of nervousness, mental illness or drugwithdrawal?

If experienced practitioners, attempting to establish rapport withtheir clients, consistently use a technique that does exactly the oppo-site of what they intend, there is a need to teach them a more effectivemethod. As a law school professor, however, I want to do more. I donot want to wait until I observe practitioners doing it “wrong” to helpthem learn a better way.

Law students require effective client interviewing skills beforethey become practitioners.8 If lawyers are to be client-centered fromthe moment they begin their careers, both in their clinical work andwhen they graduate, the law schools must provide this training.9 Thestorytelling exercise I have developed, “Whose Story Is It?” guidesstudents from the DMV Interview to Client-Centered representation.

III. TEACHING RAPPORT BUILDING:THE STORYTELLING EXERCISE

Twenty-four students enroll in my trial advocacy course eachyear. Each week, all students in the course attend a one hour lecture.In addition, each student is assigned to one of two afternoon lab sec-tions of twelve students which meet for a two-hour period each week.

The first class of the semester is a lecture in which I explain the

7 In preparing a bail application in New York state, for example, an attorney mustinclude the following information: “(a) . . .the court must, on the basis of available infor-mation, consider and take into account: (i) The principal’s character, reputation, habits andmental condition; (ii) His employment and financial resources; and (iii) His family ties andthe length of his residence if any in the community; and (iv) His criminal record if any. . .”N.Y. Criminal Procedure Law § 510.30 (McKinney 1970).

8 See Katherine R. Kruse, Fortress in the Sand: The Plural Values of Client-CenteredRepresentation, 12 CLINICAL L. REV. 369 (2006). See also DAVID A. BINDER & SUSAN C.PRICE, LEGAL INTERVIEWING AND COUNSELING: A CLIENT CENTERED APPROACH (West1977) (discussing the value of client centered representation).

9 See generally JAMES W. MCELHANEY, MCELHANEY’S TRAIL NOTEBOOK (AmericanBar Association 4th ed. 2005) (1981) (providing a comprehensive tool for students and trialattorneys alike). See also THOMAS A. MAUET, TRIALS: STRATEGY, SKILLS, AND THE NEW

POWERS OF PERSUASION (Aspen 2004).



class requirements and describe how the course will be structuredthroughout the semester. I then introduce the concepts of “Theoryand Theme” in trial advocacy and briefly discuss the various aspects oftrial work (voir dire, opening statements and closing arguments, directand cross-examination) that will be covered in the course. Other thana few questions (usually regarding grading) the students tend to listenattentively, assiduously taking notes, and focusing almost exclusivelyon me.

I then tell the students that I would like them to separate into twogroups on different sides of the room based upon their afternoon labgroup assignment. Once they are in their groups, I ask them to pairoff with another student. I tell them to choose someone that they didnot know previously. Once the students have paired up, I give themthese directions:

I would like all of you to take a few moments to think of somethingthat has happened to you that changed your life. It must be some-thing that does not relate to law school or why you came to lawschool. When I am finished speaking, I want each pair of you tofind a quiet space in this room, away from the other students.

Once the students have selected a partner and rearranged the chairsto allow space between each pair, I give the following additionaldirections:

Decide who will go first. That student will tell his or her partnerabout his or her experience. You will have about ten minutes.When the time is up, I will say ‘switch.’ The other person will thenhave an opportunity to tell about his or her experience. After an-other ten minutes, I will say ‘stop.’

After a few blank looks, moans, and some nervous laughter, thestudents begin to talk with their partners. Within a moment or two,they are all quite engrossed in the exercise. Some students are wildlygesticulating with their hands, appearing to act out events, others areobviously telling humorous stories replete with laughter and groans,and still others have leaned in close to one another and appear almostgrim.

I can observe some students listening intently, without interrup-tion, as their partner tells a story. Other students appear to be askingquestions or commenting on what they are hearing. I have never seena student take out a pen and paper and take notes on the story thatthey are hearing. The students all choose to sit side by side or onchairs facing one another with nothing between them. Some of the



students touch one another during the course of the exercise.During the exercise, I either stay in a part of the room away from

any of the student pairs or leave the room, returning to give the“switch” and “stop” directions. At the conclusion of the allotted time,I dismiss the students.

I next see the students when they meet for their afternoon labsection. Once they have taken seats, I greet them and then call on onestudent. “Joe, who was your partner during the lecture class? Kathy?OK, please go to the front of the room and tell us Kathy’s story.”10 Ithen take a seat with the students, and participate only to call on eachstudent in turn. I give no further direction to the students until all ofthe stories have been told.

A. The Stories

The stories run the gamut from childhood misadventures, to“how I met my husband,” to brushes with death. Some are mundane,some inspiring, some excruciating. Students discuss childbirth, sexualabuse, and acts of heroism performed or witnessed. There are storiesabout parents, spouses, children, “coming out” sexually, religion,travel to foreign countries and trips to an amusement park. There arestories that take only a few minutes to tell and stories that take muchlonger than the students spent in their pairings. Most of the studentsare surprised that the exercise is something more than a “get to knowyou” party game. When called on, a few say, “I’m afraid I’ll forgetsomething,” or “Can I tell about my own experience instead?” Someappear to be embarrassed or concerned at sharing another’s story, butno student has ever refused the direction to tell the story. Nor has anystudent requested that his or her story not be told. A few studentshave said, “Why didn’t you tell us that we would have to do this?”

Although all of the students comply with the direction to tell theirpartner’s story, some are obviously uncomfortable in the front of theroom, others at ease. Most of the stories are told in the third person,but occasionally a student will use the first person. Often a studentwill “check facts” with his or her partner, e.g., “your sister’s name isSusan, right?” Sometimes the student whose story is being told willinterrupt the “teller” to correct facts or add details.

Often the teller will add his or her own interpretation of theevent, even going so far as to directly contradict how the participant inthe story related it. For example, one student’s story was a poignantone of rejection experienced during his childhood. The teller ex-pressed it this way,

10 All of the students’ names have been changed for use in this article.



Robert told me that it didn’t bother him that these boys weren’t hisfriends anymore, but I don’t think that is true. I think the fact that hetold me about it so many years later means that it affected himdeeply.

Another student said,

I could tell how much Tamara admired her sister and how she wishedshe could be as brave as Rachel was.

The teller often speaks directly to the person about whom thestory is being told. Other students make almost no eye contact withtheir partner and still others tell the story directly to me, essentiallyignoring their partner as well as the other students in the class.

Many of the students add their own experiences and emotionalreaction to the story they are telling.

Brian told me that his father was his hero growing up. He told mehow much he admired the fact that he fought in Viet Nam. I couldunderstand that because I always thought my father could do any-thing. He didn’t fight in a war, but he taught me to stand up for whatI believed.

Some of the students will “act out” the story, pretending to be inthe car speeding down the highway or in the hospital room. Otherswill acknowledge the skill of their partner in describing theexperience,

When she told me how she felt when the baby came out, I startedcrying because it was so real.

A few of the students will explicitly cite a “lesson” from the story,usually at the end of their recitation.

What I learned from John was how important family is to him.

Others will begin with a theme,

Karloff told me about how he learned to swim - the hard way!

One student even intoned,

The moral of this story is: “Be careful who you trust.11

11 See generally Phillis Gershator, WISE. . .AND NOT SO WISE TEN TALES FROM THE

RABBIS (Jewish Publ’n Soc’y 2004) (illustrating the traditional use of storytelling to teachreligious and moral lessons). See also Heather Forest, WISDOM TALES FROM AROUND THE

WORLD (August House, Inc. 1996) (highlighting the diversity of cultures which historically



The student paused dramatically before pronouncing the moral toinsure the class was listening and would absorb the “lesson.”

Many of the students give their impression of the story and/ortheir partner. Often, these observations contain a comparison withthemselves:

I think Nancy is one of the most courageous people I have ever met.I can’t believe that she started law school while she was receivingchemotherapy. And she has two kids to take care of. I can barelytake care of myself, and I still call my mom almost every day.

Often, the student whose story is being told will look down at hisor her desk while the story is being told, but will look up when it isover and thank the teller of the story. If it is a sad or heroic story,others in the class may comment during or immediately after the storyis told. It is not unusual during humorous stories for the men in theclass to “high five” the subject of the story for a daring or clever actdescribed in the story. Twice, women students have asked their class-mate to show a picture of the baby whose birth story was told.

B. The Aftermath

Once all of the students have had an opportunity to tell theirpartner’s story, I lead a discussion of the exercise. Although there isno assigned seating in the class and the students are given no directionas to where they should sit, most of the partner pairs are sitting to-gether during the lab. I first simply ask them to notice and to thinkabout why they chose to sit next to their partner in the exercise andwhether they had ever before sat next to this person in a class.

I then bring them back to the class during which they shared theirstories and ask the following questions:

1. How did you choose your partner?2. Was it someone you knew before?3. Was your partner the same gender?4. Was your partner the same race?5. Are you and your partner similar in terms of age?

I next ask the students who “went first” in telling their story andhow they decided on which of their life stories to share. Did theychoose their most important story? The easiest to tell? A funny one?One that showed them in a good light?

I follow up these questions by asking whether they believe that

use of stories to pass on lessons to future generations).



their choice of stories was in any way influenced by the characteristicsof their partner. In other words, would they have picked anotherstory if their “audience” was another woman as opposed to a man, aperson of a different race, an older or younger person, or if they knewthe entire class would hear the story? Because I discuss issues of race,gender, and age, as well as power and status throughout the semester,this is an opportunity to let the students know that we all make demo-graphic observations and that it is not only appropriate, but necessary,to discuss these factors and their impact on our behavior.

I ask each student to think about how they wanted their partnerto feel about them as a result of the story they chose to tell. Did theywant the other person to like them? To respect them? To feel sorryfor them? To learn about their values? Their background?

I then turn to the students who told their story “second.” I askthem whether they changed the story that they had planned to tellbased upon the story that they heard. Did they “mirror” the firststory in subject matter or tone? For example, if the first story was“how I met my husband,” did the student then tell how she/he met his/her partner? If the first story was light-hearted or humorous, was thestudent then hesitant to tell a story of her child’s struggle with drugaddiction?

I ask the students to think about how they felt about their partnerwhile the story was being told.12 Had they formed an opinion of theirpartner before the story began? Did that opinion change? Did theyask questions during the story? Why or why not? How did they re-spond during the storytelling to information that was funny, sad, orupsetting? What did they say to their partner about their feelings?Did anyone touch their partner? Why or why not? How are they nowfeeling about their partner? Closer? More distant? Are they a teamin some way?

I ask the students to think about what they did with the storiesbetween the time they heard them and the time they came to class.Did they think about them? Did they share them with anyone? If so,who? Did they think about how they would share them? Did theyhave further questions they would like to ask their partner about thestory or the people or places described? How did they feel about thestory that they told? Do they feel they disclosed too much aboutthemselves? Not enough? Were they worried about what would hap-pen to the information?

12 See Filippa Marullo Anzalone, It All Begins With You: Improving Law School Learn-ing Through Professional Self-Awareness and Critical Reflection, 24 HAMLINE L. REV. 324(2001) (emphasizing the importance of the emotional component for creating a successfuladult learning environment and engaging adult learners in the learning process).



Interestingly, many of the students say that they would feel veryuncomfortable sharing any of the information that they learned in theclass, particularly if it was very personal. One student last semestersaid,

I normally tell my wife everything, but I told her that I didn’t thinkthat I should share the stories from this class. I really thought thatwhat happened here should stay here. We didn’t agree to that in ad-vance, but I just think that should be the rule.

His classmates all nodded vigorously in agreement and one said,“Let’s vote on that.” Everyone then raised their hands. This action onthe part of the students, with no prompting from me, made for an easytransition to the discussion of Making Confidentiality Real.

C. “Beachballing”: Leading the Directed Discussion

The discussion portion of the exercise is crucial, and while myrole in it is important, I have found that is equally important that I amnot the focus. I use a teaching technique during the discussion portionof the exercise that I call “beachballing.” I sit with the students ratherthan standing or sitting at the front of the classroom, thereby creatinga more democratic learning environment in which adult-learners takea role in the learning process. By actively participating in the experi-ence, a direct connection is made between the lessons learned andpractical problems students will be faced with in practice.13 I do notcall on students. I ask a question and then remain silent until one ofthe students makes a comment. I then wait to see the response of theother students. I will make eye contact with particular students toencourage them to respond to their classmates’ observations, but willrespect their silence if they do not comment. If a student raises his orher hand, I will nod or make eye contact, but try to remain silent.

I conceptualize my role in asking questions as lobbing a beachball into a group.14 It is up to the group members to “keep the ball inthe air.” Once the conversation lags and the ball drifts to the ground,I pose another question. On the other hand, I let the students con-tinue to make comments until it appears that everyone who wishes tocontribute has done so.15 Many of the students are hesitant to con-

13 See generally Fran Quigley, Seizing the Disorienting Moment: Adult Learning Theoryand the Teaching of Social Justice in Law School Clinics, 2 CLINICAL L. REV. 37 (1995)(explaining the function and value of experienced based learning for adult students).

14 See generally Anzalone, supra note 12 (explaining key components of the learningexperience and the role of the professor as modeling self-reflection and facilitating discus-sion as a member of the group).

15 See generally Deborah J. Cantrell, Teaching Practical Wisdom, 55 S.C. L. REV. 391(2003) (emphasizing active participation and reflection as an integral part of adult legal



tribute at the beginning of the class but grow increasingly dynamic asthe conversation progresses.

I use the beachballing technique because I want the students tounderstand that they will learn from one another and from their ownexperiences and interactions, not only from “top down” lecturingfrom their professor.16 After the first few questions, the students un-derstand and take on the responsibility for forwarding the discus-sion.17 They encourage their partners first, and then their otherclassmates to share with them their thoughts about telling a personalstory to someone they did not know before, someone who perhapswas very different from them in terms of race, gender, age, or previousexperience.18

Once the students are comfortable in sharing feelings with theirclassmates, we move to the next level of discussion. Again, I lob“beach balls” into the group. I ask the students how they felt whentheir story was being told. The students are surprisingly forthcoming.Students tend to first disclose feelings of embarrassment and concernfor what others will think of them. Next, they say that it “didn’t soundthe same” when someone else was telling it. One student, Samantha,expressed it this way,

Listening to someone else tell my story was really weird. The thingsthat Debra emphasized made me re-evaluate the way I told the storyand my reasons for telling the story. It showed me how powerfulperception can be and how two people can perceive things sodifferently.”

education,). See also Paula Lustbader, Seven Principles for Good Practice in Legal Educa-tion. Principle 7: Good Practice Respects Diverse Talents and Ways of Learning, 49 J. LE-

GAL EDUC. 448 (1999) (discussing techniques for involving all types of adult learners,particularly through participation and reflection). Courses in trial advocacy typically drawstudents who are outspoken and assertive and may intimidate more passive classmates ifthe professor does not consciously provide an opportunity for the quieter students to havetheir say.

16 Cantrell, supra note 15 at 391(further demonstrating how providing opportunities forreflection on lessons learned is an essential part of experiential learning).

17 See generally Quigley, supra note 13 (discussing the importance of experiencedbased learning and how active participation in a learning experience provides students witha much more concrete connection to practical problem solving rather than traditional pas-sive learning). Although the students are initially discomfited by the silence and by thefact that I am not lecturing, they quickly rise to the challenge and begin to provide com-ments. Experiencing this learning technique early in the semester, allows the class to bemuch more comfortable in providing feedback later in the semester on simulated trialexercises.

18 See generally Okianer Christian Dark, Incorporating Issues of Race, Gender, Class,Sexual Orientation, and Disability Into Law School Teaching, 32 WILLAMETTE L. REV. 541(1996) (identifying the importance of discussing issues of diversity in the law school class-room to develop open minded attorneys who are better listeners and can therefore betterrepresent their clients).



I ask if the person telling the story made any mistakes. Studentsbegin by sharing factual details that were wrongly told, such as names,ages, or events that were out of order. The “teller” of the story oftenapologizes. I ask how the student felt when the mistake was made.Some students dismiss the inaccuracies as unimportant to the story;others express frustration that their partner was not paying enoughattention or that they were not clear in describing the events. Mostplace the “blame” for inaccuracies on themselves, “I don’t think I wasvery clear when I was telling you,” or on the complexity of the infor-mation, “Nobody could be expected to remember all the names of thepeople in my family.”

On the other hand, the tellers of the story apologize for not pay-ing close enough attention and for making mistakes. Tony summed upthe feelings of many of the students,

There is a lot of pressure telling someone else’s story. I wanted tomake sure I did a good job. I wouldn’t have worried about telling myown story so much, but I wanted to let everyone know how much Ithought about Umar and what I learned about his struggles to cometo this country.

Interestingly, the most animated conversations about accuracy in-volve not factual details, but the recitation of the emotional compo-nents of the stories. A student will say, “You said that I admired mysister - but that is not what I told you. I said that she never took meseriously.” The “teller” may respond, “I know that is what you toldme, but I could tell that you wanted her to take you seriously becauseyou thought so highly of her.” This type of comment invariably leadsother students to express what “they could tell” that was either not“told” or is now being explicitly denied by their partner. Eventually,someone will say, in exasperation, “So, you think you know better thanI do what I was thinking? How do you know what I was feeling? It ismy story, not yours!”

This is a critical juncture in the exercise and leads naturally to adiscussion of both interviewing skills and client-centered representa-tion. “Whose story is it?” I ask the students. I inquire of the personwho told the story how he or she “could tell” what the emotions wereby listening to the story. The students will begin to discuss body lan-guage, tone of voice, and choice of words.19

It is important to give the person whose story was being told an

19 See generally Jeffrey Krivis, The Art of Attorney Mediation: 10 Ways to Improve YourLaw Practice Using Negotiation Skills, 62 J. DISP. RESOL. 22 (2007) (highlighting the im-portance of not only listening but using intuition to gather vital information from bodylanguage).



opportunity to respond to the assertions about what his or her tone,body language and choice of words “told” the listener about his story.The student may accept the “trueness” of the emotions conveyed ormay feel that unwarranted assumptions are being made. Occasionally,a student will express surprise at learning that a particular mannerism,gesture, tone, or choice of words conveyed an emotional message toothers that the student believes is accurate but was deeply hidden, orcontinues to feel is inaccurate.

We discuss the stories in which the teller added observationsabout his or her own family, values, or observations. Did these addi-tions change the original story? Make a new story? Did it becomethe story of the teller as opposed to the partner? Did the changesaffect how the class felt about either partner? Both partners?

I conclude this part of the class discussion by asking the studentswhether they would have changed the story they picked if they knewit would be told to the entire class. Interestingly, it is generally thestudents who told the more mundane or amusing stories who nowwant to tell a more serious or revealing one. One student said,

I am always the class clown and I told a story that I knew wouldmake everyone laugh. But when Christa told my story, I just thought‘why don’t I just grow up?’ I wish that I had told an important story,so that people would know that I’m not just a joke.”

Another student, a black, single mother, wrote this reflective note tome,

I feel like I should have shared a more personal experience becauseother people did. Most of my life experiences have been negative, orat least perceived by me to be negative. I wanted to share a positiveexperience and that’s what I did. But, after hearing the people in thegroup tell stories I felt bad because their stories were negative, aboutloss, but were told in a positive manner, about how they learned orbounced back. I wish I had told a story like that about my life.20

I ask the students whether they now feel differently about theirclassmates and, if so, how? The students are aware that the exercisemakes them see their classmates more as individuals. Danielle put itthis way,

20 In addition to the class discussion, I tell students that they may come to see me, callme, or send me an e-mail at any time to discuss anything about the exercise or anythingelse that happens in class. In addition, one of the questions on the end-of-semester evalua-tion asks the students to reflect on the storytelling exercise. Some of the comments I havequoted in this article come from these evaluations.



I never really care who is in my classes. There is always the jerk whoknows everything, the suck-up, the idiot who never gets anything, andthen a whole bunch of people that I can’t even remember. This isdifferent. Now when I see these people in class and in the cafeteria,I’ll remember their stories”21

Another student commented,

We learned a little bit about each person as an individual and it madestrangers into acquaintances immediately. This made it easier tostrike up friendships and work with each person later.

D. Teaching Client-Centered Representation

Once the students have had an opportunity to process their class-mates’ comments, I ask them how they think the exercise relates towhat we will be doing in the trial advocacy class.22 Almost always, thestudents who respond indicate that speaking in front of an “audience”will make them more comfortable or skilled in the courtroom simula-tions. A few even draw an analogy between the listening group and ajury.

At least one or two students each semester comment that theyare “bonded” with classmates as a result of the experience, and thatthis feeling of closeness will make it easier to perform the lab exer-cises. “Now that everyone here knows what a fool I made of myselfwhen I asked my wife to marry me, I won’t be so embarrassed if Iscrew up on my opening statement.”

By and large, the students see the exercise as an “ice-breaker” orparty game designed to give them a “taste” of oral advocacy skills andan opportunity to get to know their classmates a bit better. A couplehave even thanked me for allowing them this “gradual” immersioninto the class, as opposed to “throwing them right in” by requiring adirect examination or opening statement during the first class periods.

In short, during the reflective discussion period immediately fol-lowing the exercise, the students are focused exclusively on them-selves and their prospective ability to succeed in the class.

On their own, the students do not make the connection betweenthe person whose story they told and the client in a trial. I specificallytell them: “What we do as lawyers, inside a courtroom and out, is

21 This point is exemplified by an ancient Chinese proverb, “Tell me, I forget. Showme, I may remember. Involve me, and I understand.” Fran Quigley, supra note 13, at 50.

22 See generally Linda S. Anderson, Incorporating Adult Learning Theory Into LawSchool Classrooms: Small Steps Leading to Large Results, 5 APP. J. L. 127, 145-46 (2007)(“Adults learn better when they can actively participate in and reflect on the skills they areseeking to gain.”).



function as the “teller” of our client’s story.” When I say those magicwords, I can see the “light bulb” go on, and students nod and murmurin agreement.

Drawing on the comments the students made in the earlier dis-cussion, the class is then able to have a more focused conversationabout what it means to represent someone and to tell their story.23 Ipoint out that the students were all able to choose the story aboutthemselves that they wished to tell. Although we only had, in essence,a “snapshot” of their life at a given moment in time, each student wasable to go through his or her “photo album” and select an image thatshowed them in a positive light. In addition, each student could insurethat the only details that we had about the event were those theychose to divulge, i.e., they could “crop” the picture before it wasshown.

In contrast, I explain to the students, our clients generally cometo see us about a particular “story” or legal problem. Often, the clientis upset, embarrassed, or devastated by the circumstances. In mostcases, there will be an adversary painting the client in an unflatteringlight and evidence which either corroborates or contradicts the client’sversion of the events. The “snapshot” of our client is one over whichhe or she may have very little control, and which may be out of focusor distorted. Further, the picture may not be at all representative ofthe rest of the client’s life.

I take this opportunity to go back to the demographic issues wediscussed earlier and how similarities and differences can affect theattorney-client relationship. Did they choose which stories they toldor change their stories in any way due to their partner’s race, age,gender, or other real or perceived similarity or difference? Were anyof them surprised at the story their partner told? Did they changetheir impression of their partner as a result of the story? Did theyworry that their partner might have biases that would affect how theyheard the story?

One student in my class a few years ago, Jalessa, was an outgoing,full-bodied black woman with a booming voice. Her partner, Mara,was a willowy, soft-spoken white woman, who sat with her head bent,her long brown hair covering her eyes, while Jalessa empathically toldher story. When I asked if anyone changed their impression of theirpartner during the exercise, Jalessa shared the following:

I picked Mara because you told us to find someone that we didn’t

23 See Anderson, supra note 22, at 127 (illustrating the importance of providing stu-dents with immediate feedback and reflection to facilitate understanding of the material incontext).



know. I have seen Mara in the halls the last two years, and she was inone or two of my classes, but I never spoke to her before the night ofthe lab. I figured we had nothing in common. She’s white, she’sbeautiful, and she wears expensive clothes. When she started tellingme about her problems with food, I couldn’t believe it. We are thesame person! It was like, ‘I don’t believe this. You felt this way, too?’Obviously, she has dealt with it a lot better than I have, but she reallyencouraged me to keep working at losing weight, not for other peo-ple, but for myself. I felt so much better after talking to her. Quitefrankly, I never thought a white girl would understand me. I stilldon’t think a white man would.

Age differences and prior work experience are very significant tomost law students. One student commented,

Anne is as old as my mother. I kept expecting her to say the thingsthat my mother would have said if I told her about drinking and al-most crashing the car.

Another student expressed his feelings about his partner’s story in re-lation to his own lack of experience,

Robert has already had two careers and I haven’t even figured outwhat I want to do when I graduate.24

Although we have a number of “non-traditional” law students inthe class every year, a majority of the students are in their twenties.We discuss the fact that, at least for the first decade of their practice,many of the people they come in contact with, including senior part-ners, jurors, court personnel, and particularly, clients, will all be olderthan they. What impact will that fact have on their representation?On their clients’ trust? On their comfort level? On their ability torelate?

Once the students finish discussing how their feelings about theirpartners changed as a result of the storytelling exercise, I ask how theywould have felt if, instead of saying “switch” at the end of the first tenminutes, I had ended the exercise at that time with only one partner inthe pair having told his or her story. How would they then have feltabout the exercise, particularly the “sharing” of the story with the rest

24 See generally Anderson, supra note 22 (discussing the value of timely peer to peerfeedback and how that can deeply resonate with adult learners). Students also begin torecognize that what they learn from the experiences of their classmates can be used bythem in the future in working on behalf of their clients. For example, a young student withno previous work experience may develop techniques to discuss business matters and anolder student may learn tips on “connecting” with juvenile clients from his much youngerclassmates.



of the class?The students begin to protest.

That wouldn’t be fair.That would be terrible!I would never have come back to class.They would have power over us.That would make the ones who told so much more vulnerable.I would resent you (referring to me as the professor).I would resent my partner.Well, we wouldn’t be partners if only one person told!

Once the shouts of indignation subside, I ask, “How do you thinkour clients feel when they share with us and we do not reciprocate?”Again, light bulbs, and a connection is made about what it is that wedo as attorneys, and how what we do can affect our clients. We brieflytalk about power considerations in the attorney-client relationship,and what and how much is appropriate to share with clients. I let thestudents know that the answers to these questions involve issues ofconfidentiality and professional standards of behavior as well as issuesof trust and establishing rapport. I tell them that we will not be ableto explore all of these issues within the time constraints of our class,but that they need to be aware of them as they begin their legalcareers.

We then continue the discussion with questions about whetherthe exercise would be different if the two participants spoke differentlanguages and an interpreter was needed to assist in the communica-tion; how the conversation would be different if one of the partici-pants was free to leave at any time but the other was confined to thechair or room; and what impact it would have if the story being toldhad no meaning to the listener because of cultural or backgrounddifferences.25

We discuss different client populations that students might en-counter in the law school clinics, in their field placements (extern-ships), or when they are in practice. Many of the students will bedealing with immigrants, non-native English speakers, clients withphysical and mental disabilities, and clients who are incarcerated. Stu-dents will also be dealing with clients who do not share their cultural

25 See generally Susan Bryant, The Five Habits: Building Cross-Cultural Competence inLawyers, 8 CLINICAL L. REV. 33 (2001) (emphasizing the importance of respecting andpreparing for cultural differences between attorneys and their clients). It is important inthis context not to limit the discussion to racial or ethnic differences, but to make theconversation as broad based as possible, touching on issues such as religious background,developmental or mental disabilities, educational disparity and language barriers.



or class background.Again, I stress to the students that we are barely scratching the

surface of the types of considerations that are crucial to establishingand maintaining a rapport with clients that will allow for meaningfulrepresentation. The students must understand that the skills and tech-niques which they are using for the first time will be modified andrefined throughout their professional careers. The ability to be bothself-aware and empathic to clients is a life-long endeavor, a skill thatthe best attorneys are constantly striving to improve.

E. Making Confidentiality Real

The stories shared in class can be very personal and sensitive innature, and the students are sometimes hesitant to tell them. I ask thestudents, “Did any of you feel uncomfortable telling the story?” Al-most always, a student will say, “I didn’t think I should tell. It wasJohn’s story and I didn’t know if he would want the whole class toknow.”

When I ask why the student told the story if he or she felt that itshouldn’t be shared, the invariable response is, “Because you told meto.” I then inquire, “What do you think would have happened if yousaid, ‘no’?” Silence. “Is that the test? If someone tells you to disclosesomething that is a secret, do you do it?” Silence. “Do you think youcould have asked John’s permission to tell the story?” Silence. Then,“If John thought I wouldn’t tell, then I shouldn’t have told.”

The students’ realization of the disclosure problem effortlesslyleads into a discussion of the ethical requirement of attorney-clientconfidentiality and the importance of the client’s subjective expecta-tions.26 We discuss under what circumstances an attorney might bepressured to reveal a confidence and what the ethical response shouldbe. In addition, we talk about how to explain the concept of confiden-tiality and its waiver to our clients in terms that they can understand.

I also share with the students that I feel ambivalent at timesabout utilizing the exercise, even though I believe that it has greatpedagogic value. Once, a student, John, was glowering at me, armslocked across his chest, slumped in his seat, hat pulled low over hiseyes, after the exercise in which he told his partner’s story of a painfuldivorce involving infidelity. “John, would you like to share how youare feeling?”

26 See Model Rules of Prof’l Conduct R. 1.6 (1983); see generally Gregory C. Sisk,Change and Continuity in Attorney-Client Confidentiality; The New Iowa Rules of Profes-sional Conduct, 55 DRAKE L. REV. 347 (2007) (highlighting the importance of confidential-ity as the foundation of a trusting attorney-client relationship).



You tricked us! You should have told us why we were hearing thestories. You knew what was going to happen, but we didn’t. It isn’tfair!

Fair. Ethical. Professional. Moral. We discuss the difference be-tween these terms, both from a legal and from a practical and ethicalstandpoint. We discuss the power differential between me as a profes-sor and them as students and compare it to the roles of attorney andclient. Usually, at least one of the students shares that he or she waswilling to give me the “benefit of the doubt” and trusted that I had a“good reason” for the exercise, and that was justification enough to goalong with the instructions. This conversation, their perception thatthe exercise would lead to a benefit for them, leads naturally to thenext topic, specifically instructing the students in interviewing skillsand avoiding the pitfalls of the DMV Interview.

F. Teaching Interviewing Skills: The “DMV Interview” Revisited

It is always the case that none of the students take notes duringthe storytelling exercise. I ask them whether that was a conscious de-cision on their part. Usually a student will say, “Well, if I knew that wewere going to have to tell the story, I would have, so that I wouldn’tmake any mistakes or forget anything.” Most of the students, though,comment that they wanted to pay attention or that it would be dis-tracting to take notes. One student expressed,

I think that would have made the whole thing useless. The importantthing was to understand who Jessica was. I got more out of her facialexpressions than her words, and I wouldn’t have been able to writethose down. If I had been writing the words, I would have missed theexpressions.

Having already drawn the connection between the storytellingexercise and representing real clients, the students want to know ifthey “should” take notes when the exchange involves an attorney-cli-ent exchange. They understand that they may have to refer back tothe information collected, that they may have dozens of clients andthat their representation of a client may extend over a long period oftime.

Again, I share with my students that the difficulties that they per-ceive between the desire to make a connection with a client and theneed to obtain and retain information is one that is experienced byattorneys on a regular basis.27 I stress that they need to develop the

27 See generally Melissa L. Breger, Gina M. Calabrese & Theresa A. Hughes, TeachingProfessionalism in Context: Insights From Students, Clients, Adversaries, and Judges, 55



skills to find a balance between these seemingly competing goals.Students are generally frustrated by the tension between the law-

yer wanting and needing to obtain and preserve detailed informationand the client’s potential negative reaction to note-taking during theinterview process. We brainstorm. We discuss the DMV Interview.“Why aren’t you offended when you are asked questions by the bu-reaucrat at the DMV office?” “Because I got a driver’s license.” Thestudents appreciate that they are not offended or suspicious whenasked for demographic information which might otherwise seem in-trusive if they perceive that they are receiving a benefit, e.g. a driver’slicense.

We discuss again how our clients, because of who they are andwhat experiences they may have had with the police, immigration,probation, or other agencies, might feel or react differently to thesame types of questions.28 “Why might they be afraid?” “Who couldget the information?” “What could it be used for?” We then brain-storm. “So, how do you think you could make your client feel bet-ter?” “Explain why I needed to take notes?” “Yes!”

In fact, when questioned, in character, at the Trial Practice Insti-tutes, the actors all told their lawyers that they wanted them to makeeye contact, LISTEN to them, explain why they were asking questions,show them what they were writing down, and explain what was goingto happen next. In short, they were seeking a human connection, sothat their stories could be told.29

I use beachballing again to let the students discuss what theyliked about the exercise. They appreciate how much information theywere able to glean in ten minutes. How much they learned from eyecontact, body language, facial expressions, and word choice. Theycomment on how much they would have missed if they were takingnotes and how nervous they would have felt if someone were takingnotes when they spoke.

S.C. L. REV. 303 (2003) (illustrating the challenges of balancing professionalism with theneed to build trust with the client though different interviewing techniques). I also sharewith my students that I use this same exercise at Trial Practice Institutes attended by veryexperienced attorneys and that those lawyers exhibit the same difficulties.

28 See generally Susan Bryant, supra note 25 (demonstrating the danger in assumingthat clients attach the same cultural meaning to legal vocabulary and illustrating how suchassumptions must be overcome to develop better client rapport through earnest listeningand cultural awareness). Again, the conversation needs to be broad enough to also addressclient assumptions based on additional factors such as, educational level, language skills,and developmental or mental disability.

29 See generally Linda F. Smith, Client-Lawyer Talk: Lessons From Other Disciplines,13 CLINICAL L. REV. 505 (2006) (emphasizing the importance of deep listening to establisha trusting attorney-client relationship in the context of the client interview as a cooperativeconversation).



On the other hand, we talk about how difficult it must be if youhave dozens of clients and need to keep all of their files organized andhow much information you need to do a proper investigation andmeet with witnesses. What type of demographic or factual informa-tion is necessary for pleadings such as a bail application or motion tosuppress? How is it possible to reconcile these competing demands?

Inevitably, the students come up with almost identical solutionsto those suggested by the actors at the Trial Practice Institutes. Weidentify what would make them feel comfortable and respected.

Here are the rules that my last class developed: First, make eyecontact and introduce yourself to the client. Shake hands or touch theclient in some way to establish a human connection. Make sure thatthe client understands that you are his or her attorney and are there tohelp and be his or her advocate; don’t assume that the client knows.Give the client a card with your name and phone number. Then, lis-ten to the client without looking away or taking notes. Pay attentionnot only to the client’s words but to his or her tone, body languageand affect.30 Try to determine the client’s level of education, sophisti-cation and understanding and whether he or she is suffering from anyphysical or emotional problems.

Then, explain to the client why it is necessary to take notes andwhat the notes will be used for, e.g. “to ask the judge to let you gohome to your children.” Let the client see what is written on the legalpad. Ask permission. Say to the client, “I need to go see the wit-nesses. Is it O.K. with you if I write their names down so that I cangive them to my investigator?” Tell the client who will see the notes,e.g. “only the other attorneys in our firm and our investigator.” Readwhat you have written back to the client and ask if it is correct. Thankthe client. Tell the client when you will be back to visit if he or she isin custody or make another appointment if the client will be coming toyour office. Ask the client if he or she has any questions or if he orshe would like to take any notes or write anything down before youleave. Tell the client how to get in touch with you if he or she hasquestions or concerns. Let the client know if a family member can calland speak with you and what information you can or cannot share.

G. Student Reflections on the Exercise

At the end of the semester, the students complete an extensiveevaluation of the trial advocacy class. One of the questions on the

30 See generally Gay Gellhorn, Law and Language: An Empirically-Based Model for theOpening Moments of Client Interviews, 4 CLINICAL L. REV. 321 (1998) (emphasizing howimportant it is to be aware of non-verbal cues from clients, and how missing such cues cannegatively affect the ability to establish a trusting relationship with the client).



evaluation concerns the storytelling exercise. The students are askedto describe what they learned from the exercise and if they felt it wasuseful to have the experience at the beginning of the semester.

The responses from the students are wide-ranging. We spend agreat deal of time during the semester discussing interviewing skills,client-centered representation, issues of diversity, use of theory andtheme in trial, and the power of detail and description in conveyingemotion in witness examination, opening statements and closing argu-ments. As these topics are discussed, I relate them back to conceptsof telling the client’s story to the jury, using verbal and non-verbalcommunication, and being aware of ethical considerations at all times.

Some students see the direct correlation between these classroomdiscussions and the initial storytelling exercise. Tony expressed it thisway in his evaluation,

I learned to be attentive, as a lawyer should, listening to a client’sproblem for the first time. I tried to learn to place myself in the roleof a lawyer meeting with my client for the first time and tried to honein on listening skills.

Many of the students value the storytelling exercise because ithelps them present more persuasive examinations or arguments.

I knew that I had to make my closing argument into a story so thatthe jury would remember it. I still remember the stories from the firstday of class. I remember you telling us that seeing something from adifferent perspective is key and I wanted the jury to see it from myclient’s perspective because it was his story, not mine.

A few students persist in viewing the exercise as a party game forthe first day of class.

I like that it was at the beginning of the semester. I think that it mademe feel closer with my class. I have never before said hello to every-one in the hallway from a class after such a short amount of time.

Many students value the lessons on confidentiality. Mark wrote,

I learned that if you think something you are being asked to do by thejudge is questionable, or may harm your client or relationship withthem, don’t be afraid to challenge (nicely of course).

The comments on telling the client’s story demonstrate that thestudents are able to learn this critical concept. Sabrina wrote,

I felt it gave me a wonderful perspective on what it would be like to



be a client. Having my story told and told wrong made me cringeeven though it was unimportant in the scheme of things. It will makeme more careful with real clients.

John put it this way,

It was an experience where we got to see our story told by anotheradvocate – exactly the same situation our clients will be in.

Curtis specifically addressed interviewing techniques,

Sharing personal information with your client helps facilitate/estab-lish rapport with your client. It establishes a common bond with yourclient and makes you more approachable. Also, it takes the spotlightoff them and turns you from an inquisitor to a conversationalist.

IV. CONCLUSION

Experienced practitioners know that establishing rapport andgaining trust is critical to effective client representation. Unfortu-nately, even though they are able to articulate these goals, many areunable to effectively achieve them in an initial client interview.Teaching these skills in the law school environment will enhance bothclinical representation and future practice. Guiding students awayfrom the pitfalls of the “DMV Interview” to effective Client-CenteredRepresentation through the use of Storytelling is one way to “turnthem from an inquisitor to a conversationalist” and move them alongthe path to effective and successful client-centered representation.


Documents

Client Centered Representation