For the Defense - Vol. 3, Issue 2 - 2018 - 22
client feel heard and release the tension. For
instance, if the client says, "You don't care about
my case. You never call me back and you're not
doing anything," your response might be: "I
can hear that you're concerned that I am not
working on your case and that I haven't been
in touch with you. I can see why you would be
upset if you feel that way. Let me tell you what
I have done and where I see this case going."
Reflective listening is a skill that one can easily
develop and works well with clients, prosecutors,
judges and, sometimes, teenagers.
Terminating the Engagement:
Breaking Up is Hard to Do
word here. One way to ensure that you and the
client agree on the definition of reasonableness
is to include terms of communication in your
fee agreement. These terms could include which
methods of communication will be used, including
whether you will accept contact through email,
cell phone or text. These terms could also include a
reasonable "response" time, e.g., "the firm will try
to return all communications within 24 hours."
Many criminal defense lawyers have high
volume practices or cases that are in varying stages
of urgency. Cases can be quiet for a long time
and there may not be anything to communicate
to a client; that lack of communication may
be unsettling to a client, especially, one who
is imprisoned. A short note or email to let
the client know the case status and the next
milestone can prevent misunderstandings. If
a call is overdue being returned but you don't
have time to talk, call the client to acknowledge
the call and set up a later time when it is more
convenient to have a longer conversation. Keep
a log of tasks performed and contacts made in
your matters: this can be useful to defend later
claims that communication was poor or a fee was
unreasonable.
Sometimes clients call with unreasonable
demands or hostile attitudes. One of the "lawyer/
life hacks" I recommend is something I learned
from dealing with my children when they were
teenagers: use reflective listening to make the
22
For The Defense
l
Vol. 3, Issue 2
Sometimes, no matter how careful you are
at choosing a client and how well you are at
communicating, issues arise that require you
to end the representation. Money is often a
problem, and once you enter your appearance,
it becomes harder to withdraw, especially in
federal court. Flat, non-refundable fees are
common in criminal cases. PA Bar Association
Formal Ethics Op. 95-100 states that there is no
per se prohibition on nonrefundable retainers,
but any arrangement must be "confirmed by
clear and unambiguous language" in the written
agreement between lawyer and client. Your
fee agreement should include the language,
"earned upon receipt" and provide that the
client specifically agrees to this and that the
fee is reasonable. Despite these measures, Rule
1.5 (a), governing fees, may later require some
return of fees if the fee is deemed "clearly
excessive."
Rule 1.16 describes both mandatory and
permissive termination of representation.
Termination is required if the representation
will violate the Rules of Professional Conduct or
some other law, the lawyer's mental or physical
condition prevents her from providing adequate
representation, or the lawyer is discharged.
Termination is permissive if it can be
accomplished without material adverse effect
on the client's interests, under the following
circumstances:
* the client persists in conduct, "involving the
lawyer's services" that the lawyer reasonably
Table of Contents for the Digital Edition of For the Defense - Vol. 3, Issue 2 - 2018
Contents
For the Defense - Vol. 3, Issue 2 - 2018 - 1
For the Defense - Vol. 3, Issue 2 - 2018 - 2
For the Defense - Vol. 3, Issue 2 - 2018 - Contents
For the Defense - Vol. 3, Issue 2 - 2018 - 4
For the Defense - Vol. 3, Issue 2 - 2018 - 5
For the Defense - Vol. 3, Issue 2 - 2018 - 6
For the Defense - Vol. 3, Issue 2 - 2018 - 7
For the Defense - Vol. 3, Issue 2 - 2018 - 8
For the Defense - Vol. 3, Issue 2 - 2018 - 9
For the Defense - Vol. 3, Issue 2 - 2018 - 10
For the Defense - Vol. 3, Issue 2 - 2018 - 11
For the Defense - Vol. 3, Issue 2 - 2018 - 12
For the Defense - Vol. 3, Issue 2 - 2018 - 13
For the Defense - Vol. 3, Issue 2 - 2018 - 14
For the Defense - Vol. 3, Issue 2 - 2018 - 15
For the Defense - Vol. 3, Issue 2 - 2018 - 16
For the Defense - Vol. 3, Issue 2 - 2018 - 17
For the Defense - Vol. 3, Issue 2 - 2018 - 18
For the Defense - Vol. 3, Issue 2 - 2018 - 19
For the Defense - Vol. 3, Issue 2 - 2018 - 20
For the Defense - Vol. 3, Issue 2 - 2018 - 21
For the Defense - Vol. 3, Issue 2 - 2018 - 22
For the Defense - Vol. 3, Issue 2 - 2018 - 23
For the Defense - Vol. 3, Issue 2 - 2018 - 24
For the Defense - Vol. 3, Issue 2 - 2018 - 25
For the Defense - Vol. 3, Issue 2 - 2018 - 26
For the Defense - Vol. 3, Issue 2 - 2018 - 27
For the Defense - Vol. 3, Issue 2 - 2018 - 28
For the Defense - Vol. 3, Issue 2 - 2018 - 29
For the Defense - Vol. 3, Issue 2 - 2018 - 30
For the Defense - Vol. 3, Issue 2 - 2018 - 31
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For the Defense - Vol. 3, Issue 2 - 2018 - 37
For the Defense - Vol. 3, Issue 2 - 2018 - 38
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For the Defense - Vol. 3, Issue 2 - 2018 - 40
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For the Defense - Vol. 3, Issue 2 - 2018 - 42
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For the Defense - Vol. 3, Issue 2 - 2018 - 46
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