Critical advice for young solo criminal defense lawyers

If you recently opened your own shop after graduating law school and you desire to make a name for yourself doing criminal defense work, I urge to read Scott’s post today at Simple Justice entitled David Aylor, The Other Shooter. It speaks to your dreams of getting the “big” case, thus marking your territory as a player.

I could add some things to Scott’s post–like a reporter is never your friend when he or she interviews you on the record for a story–but any contribution of mine would be of the marginal variety. Read Scott’s post, it is full of practical and ethical advice on taking a “big case” and speaking out publicly about your ticket to fame and lucre.

RGK

19 responses

  1. In any litigation, the media is no friend to any lawyer. Always remember, we are only one step above our clients in the eyes of the media, and our clients either have no case or no defense. No good ever comes of this, but some lawyers keep doing it, and it isn’t always young lawyers.

  2. Thanks. I’m not doing criminal law, but I am planning on starting my own practice. It still has good advice for me.

    -SLS

  3. RGK,
    And btw, I would nut up and represent him no matter the evidence. He is entitled to legal representation. To hell with my supposed “reputation,” this man’s life is on the line. He deserves a competent lawyer who will work hard to ensure the most favorable outcome possible for their client. Whether that is a not guilty verdict or merely life in prison is irrelevant.

    That attorney needs to go back to law school and figure out what it means to be a lawyer.

    -SLS

  4. Determining guilt or innocence is not the duty of a defense lawyer.

    That is the province of the jury or judge sitting as trier of fact.

    The criminal defense lawyer’s job is to present a legally sound defense for their client.

    That said, it is also true that :

    Media coverage can influence public opinion, but can public opinion really influence the Supreme Court? With its lifetime appointments the court is designed to exist above the fray. Bob speaks with Slate’s Dahlia Lithwick who says that despite that, public opinion was a big factor in this week’s arguments.

    (On The Media).

    Perhaps the police officer’s lawyer who bolted had read this (Black Americans killed by police in 2014 outnumbered those who died on 9/11).

    No pressure, just sayin’ …

  5. Maybe someone should send this attorney a ball cap with STFU emblazoned upon it in big bold letters. Just so he doesn’t forget. Good reminder to one’s criminal clients, too.

  6. This is a great post and I am glad you linked to it. It’s helpful in hindsight to see what Mr. Aylor should have done. But I’m sure it’s hard to put aside the intensity of the moment and the impulse to speak and ensure that your duties to your client, and the justice system, come first.

    Unrelatedly, I was sorry to hear about your health problems and I hope that you are feeling much better.

  7. I wasn’t aware of Aylor’s statements at the time I read that the cop’s lawyer (whoever he was, I didn’t know at the time) was no longer his lawyer.

    I remember thinking why is he not, and uncharitably, “What a dickhead and coward.”

    I disagree with you, a little on the To hell with my supposed “reputation” bit. I think the worst that would have happened to his reputation, had he had the wherewithal to stay with the case, would have been nothing at all. Lawyers defend losers and the guilty all the time. There would have been, though, the very real possibility of an enhancement from a competent defense and even an acquittal. But a competent defense would require more skill, talent, and judgment than Aylor seems to have.

    I have to wonder whether a malpractice suit might have a future here.

    Eric Hines

  8. I think SHG projects a lot. It’s not EVERY young lawyer’s dream to get the ‘big case’. Lots are content to quietly make as good a living as they can, never even talking to a reporter if they don’t have to.

    Not that this is relevant to Mr. Aylor, who obviously doesn’t care for being quiet.

    Just my personal preferences about withdrawing: don’t do it. I’ve only done it once, and that was because the judge forced me to, and even then I still represented the same client concerning the same matter in a different court.

    I don’t think a client ‘lying’ to you is cause to withdraw. I don’t think not being paid is cause to withdraw. I don’t think fundamental disagreement on strategy or tactics is cause to withdraw because it’s your job to persuade the client to agree with you and if you can’t then you maybe tell the client he should fire you but that you’d never quit. In criminal defense there might be the rare circumstance where you know the client should plead but he won’t or he insists on pleading when he shouldn’t. And then there are “mandatory” withdrawal situations, but obviously I have never encountered them.

    The problem with Aylor wasn’t talking to the media; he had to do that, it seems. The problem is the heat got turned up and he withdrew. The impression of disloyalty is unavoidable, and “no comment” isn’t going to help either. Withdrawing under these circumstances was just a very, very bad decision.

    California bar has some guidance here: http://rules.calbar.ca.gov/Rules/RulesofProfessionalConduct/CurrentRules/Rule3700.aspx

  9. Just by way of comparison, in England & Wales, under certain circumstances where your client has lied or it has become impossible to continue to represent your client because he has lied, barristers can withdraw on grounds of professional embarrassment. Although, I think this young attorney’s (Aylor) comments were critically misplaced and he got in over his head. Live and learn.

  10. Mortimer has a Rumpole story on this and in one of the volumes of his autobiography he deals with the assumption that clients lie and what happens when a client really tells the whole truth.. I tried to get students to read him and other works of lawyers biography and lawyers in fiction but it never worked

  11. Not all that long ago, I was in one of the more tribal parts of the world. The topics of weddings came up (someone had used the word “bride-zilla”). They had until recently a sorta interesting custom. Basically, the couple didn’t meet until the day of the wedding, though they they would exchange letters and tokens (e.g., to prove she could sew or the worthiness of his goats). Then, on the big day, the families would go into a “wedding tent,” the groom lift the veil, and the families would bargain the dowry. It wasn’t terribly uncommon for either side to back out; but whatever happened in the tent was supposed to stay in the tent.
    Aylor’s withdraw after the video was released would be like seeing the groom walk in, and then 20 seconds later he screams “Yikes!,” fleeing away as fast as he can. “Oh, THAT? No, uh, perfectly lovely girl. Oh, that bit about ‘I no longer fear death’? Completely unrelated.”

    As for the lying client, I believe Monroe Freedman has provided the most thoughtful and appropriate advice on the subject.

  12. Judge:
    I have only since learned of Mr. Aylor’s withdrawal but I found rather curious his initial statement upon first being assigned/retained to represent the defendant, i.e., “I believe once the community hears all the facts of this shooting, they’ll have a better understanding of the circumstances surrounding this investigation.” Maybe this statement was reasonably intended to suggest that the locals not rush to judgment given the recent debacle in Ferguson, Missouri. However, it also seems to imply that there might be some piece of evidence out there which would exonerate his client…until the publication of the now-infamous videotape suggesting the polar opposite. Perhaps Mr. Aylor’s mistake was in failing to make a public statement which would have been no less operable even after the videotape had come to light, e.g., “My client has pled not guilty and is entitled to a fair trial no less than any other citizen. I will undertake all legal means at my disposal in order to zealously guarantee his rights. At this point we will have no further public comment given that we intend to seek his vindication in a court of law rather than in the court of public opinion. Good day.”
    Robert

  13. Hear, hear! Rumpole was the best! Who can ever forget, “She, who must be obeyed,” and of course, Horace’s love of a fine claret. 🙂

  14. Correct. The media is not a friend 99% of the time. Because I do not play in the criminal law sandbox, I have certainly not been involved in high stakes, high profile cases that attract big media attention. In the few civil trials I’ve had that garnered media attention I have a simple line or the press: “If you want to know what I think about the case, I do my talking in the courtroom.” That is my “no comment”. The only real question I will answer is if they want to confirm the spelling of my last name, which is not easy. If they are going to say nasty things about me I want them to get it right. 🙂

  15. Thanks for sharing Scott’s post. I definitely agree that one should be wary around reporters, they aren’t your friends – it’s something young lawyers need to learn QUICK.

  16. “There have been times lately, in the long hours in your lordship’s court, listening to the continuing attacks on our profession…”

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