It is not uncommon for a potential client or a family-member of a potential client to ask our office if we guarantee a dismissal, reduction of a felony charge to a misdemeanor charge, or a probationary sentence. This question is only natural when the attorney fees requested are significant. The client is seeking peace of mind that the money paid is worth it.
What to Take Away: An attorney cannot ethically or legally guarantee any outcome in a criminal case and certainly cannot represent someone on a contingency basis as is often done in civil personal injury cases (“if you don’t win, you don’t owe us a penny”).
However, the answer to the question is always tough to give: NO! Why this is so may not always easy to understand, but is important to appreciate in our legal system. It is the same reason why no criminal defense lawyer may agree to accept payment contingent upon the outcome of a criminal case.
There are two reasons no lawyer should do this and, if an attorney does make such a guarantee or payment option, the potential client should not only be skeptical, but leave the lawyer’s office immediately or hang up the phone. Any attorney who makes such a guarantee is waste of your time, perhaps an extreme novice or simply interested in work experience.
As mentioned above, there are two reasons to run away from such an attorney. First, it is strictly against the Code of Professional Ethics to guarantee any outcome or specific result in a particular criminal case. This is taught at most law schools over and over. Lawyers who do make such guarantees, often even in writing, are disciplined, suspended or even disbarred.
One reason that this is so is because such a guarantee may cause attorneys to destroy or fabricate evidence, intimidate witnesses, bribe judges, bribe prosecutors or otherwise subvert the integrity of the legal process to meet the guarantee (perhaps to get paid).
Second, besides being unethical, it is a “hard-sell” tactic that should be barred. It shows a desperation and/or extreme inexperience with how the facts develop, the legal theories that may apply or be irrelevant and who will be the judge, jury and the prosecutor. Moreover, occasionally the law changes in unexpected ways. These things are simply beyond the attorney’s control and only a fool would guarantee an outcome, even if he or she reads the police report, knows which judge will be assigned, or has lots of experience with the prosecutor.
Our office has heard anecdotally about certain attorneys repeatedly guaranteeing such an outcome in exchange for a higher retainer fee, only to claim that the facts developed differently than expected, rendering the guarantee inapplicable. The attorney will comment, “why didn’t you tell me this,” implying that it is the client’s fault (rather than his) that the guaranteed outcome can no longer be obtained. The attorney may also claim, “well, this certainly was unexpected. I cannot meet the guarantee now,” as if to blame someone else for undermining the guarantee. The attorney then keeps the retainer fee and the client is very unhappy.
While no attorney should ever guarantee a result, the potential client or the family of the potential client should feel assured that the attorney will give 110% effort and apply every bit of knowledge, education and experience to the client’s benefit. Based on the attorney’s familiarity with the facts, specific experience with the judge on similar cases and similar prior cases with the prosecutor, the attorney can offer his or her opinions of how the case is likely to resolve, but a guarantee is a big no-no. A criminal defense attorney can guarantee that he make all efforts to leverage this knowledge and experience to the client’s benefit, but that same attorney should be deliberate in explaining to the client or the client’s family that this is not a guarantee of a specific result.
The potential client should also feel guaranteed that the lawyer will communicate with the client frequently and respond to inquiries quickly always with respect. The attorney should share the same sense of urgency about the case as the client and/or the client’s family, or at the least, appreciate and respect their sense of urgency, even if unreasonable because of inexperience with the criminal justice system.
For more information about selecting an attorney and a Marsden
hearing, please click on the following articles:
- Why Hire a Private Attorney? Why Shouldn’t One Use the Public Defender?
- What Is a Marsden Motion? What Happens If It Is Granted?
- Can I Withdraw My Plea Based on Ineffective Assistance of Counsel?