A potential client came to see me the other day. The potential client was charged in federal court with possession and distribution of child pornography. When the potential client called me to set up the appointment, it was clear that he did not have much money. He was being represented by a Federal Public Defender (FPD) and was not working. I do not charge for initial consultations and was happy to meet with the gentleman even though I recognized that it was unlikely that he would be able to retain our firm.
What is noteworthy regarding my consultation with this person is the discussion we had regarding counsel. I explained to him that there are several hundred criminal defense lawyers in the Dallas area and I could recommend several great attorneys if he was being charged in STATE court. However, he was being charged in federal court and faced a mandatory minimum sentence of five years. I explained to him that there are only a handful of lawyers in the Dallas area that practice regularly in FEDERAL court. Federal court, I informed him, is very different than state court. Generally speaking the federal judges are stricter about following rules of procedure and there are stricter deadlines. Most importantly, there are mandatory minimum sentences in federal court and sentencing in federal court are driven by the sentencing guidelines. As I explained to the potential client, the sentencing guidelines for child pornography offenses are particularly open to attack and, therefore, it was very important that any lawyer he hired knew about “deconstructing” these guidelines and the latest case law related to these guidelines.
I explained to the gentleman that, given the small number of area lawyers who regularly appear in federal court, legal fees did generally tend to be higher to retain a qualified lawyer in a federal case. I spent a great deal of time explaining to him that, if he was unable to hire a lawyer that regularly practiced in federal court, he was much better off keeping his FPD. He told me that he was leery of the FPD because the FPD had not returned several phone calls. I informed him that, while it is true that many FPDs carry high caseloads making it difficult to give the client the type of attention a retained attorney might give them, that FPDs were experienced in representing clients in federal court and the application of the federal sentencing guidelines. As he left my office, I implored the potential client to keep his FPD unless he was able to retain the funds to hire a criminal defense lawyer that practiced regularly in federal court.
I talked to the potential client several weeks later and he told me that he was going to hire a lawyer who he found in the yellow pages. I know this lawyer. The lawyer pays to advertise his practice on several pages in the yellow pages and is regularly seen running around the state courthouse with a printout that has a long list of clients set for that day. I looked the lawyer up on PACER (a listing of cases in federal court) and found out that, during his long career, he had only represented defendants in our federal district in handful of cases and, in many of those cases, he withdrew or was fired before the case was finished. I said to the potential client, “Let me guess, the lawyer said he would ‘get started’ on the case if you brought him $1,000.” The potential client was amazed I knew that. The reason I knew that is because it is that lawyer’s practice to take any money the client has available and then, without a written contract, put the client on a payment plan. However, as soon as the client stops paying, the lawyer will try to withdraw from the case and keep the fees previously paid.
The most ironic thing is that when somebody runs a volume practice like this lawyer and makes money on the fact that he has thousands of clients paying small fees, it is impossible for the lawyer to communicate with his client. Nevertheless, this is why the client was not satisfied with the FPD attorney in the first place. Of course, given the volume of practice, if the lawyer ever had to take a case to trial and spend several days in trial, his practice would implode.
Out of curiosity, I checked PACER recently and, at least for now, it appears that the potential client has taken my words to heart and has stayed with the FPD.
The bottom line is that, for defendants charged in federal court, it is important to realize that there are only a small subset of criminal defense lawyers that practice regularly in federal court. For defendants charged in federal court who are seeking to retain private counsel it is imperative that you ask any lawyer you are considering hiring how many cases he or she has handled in federal court. You should demand that the lawyer show you on PACER the number of cases he or she has handled in federal court. If a lawyer is not willing to do this, it should tell you that he or she does not practice in federal court on a regular basis. Again, the reason this is so important is that the rules in federal court and the sentencing guidelines used in federal court make federal court practice very different than state court practice.
Finally, if you cannot afford a lawyer who handles at least several cases a year in federal court, I almost guarantee you that you will be better off with a Federal Public Defender than trying to hire a lawyer out of the yellow pages or a lawyer who rarely deals with federal procedures and the United States Sentencing Guidelines.
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