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Thirty-five years ago, my first potential criminal case began with a visit to the county jail for an initial interview.
As the interview ended and I waited for the guard to escort me out, my client said, quite casually, “Well, my brother is in Iraq with the Marines, and I look like him, so I’m going to plead guilty to cover for him.”
Ever notice how, at the end of a meeting, clients often reveal the most important thing?
Of course, the fact pattern is a no brainer. Don’t take the case.
The real conundrum comes later: after you’ve taken a case, and a conflict—probable or possible—surfaces. What do you do? My motto: When in doubt, get out. Err on the side of caution.
First step when hired
Make, don’t suggest, that the client write a complete narrative—what happened, the facts, witnesses, phone numbers, and what each witness will say. Keep it in a dedicated folder; you’ll need it throughout. Think of it as your mini-trial guide.
At a criminal law seminar 10 years ago, only three attorneys out of 35 said they did this. One younger lawyer asked, “Why not just take notes?” My answer: “If you miss a crucial fact, who do you think they’ll blame?” Clients consistently tell me the process of writing a narrative in detail brings relief, knowing they’ve told their story.
When the client fires you
This one’s easy—if you handle it right.
The best practice? File your motion to withdraw immediately, assuming you have nothing pending you must do. Don’t let it linger.
Follow the motion with a polite letter wishing the client well, and swiftly refund any unused retainer. Be generous. Once the order is signed you’ll feel lighter.
The rules
When there is a conflict issue, Indiana Rule of Professional Conduct 1.7 allows continued representation with informed, written consent from all affected.
In my view, that’s risky. Conflicts are “nuanced and fact-specific,” as the commentary notes. But another rule requires you to advise the recipient of any agreement (like that consent) to consult a lawyer. That’s why it is risky. It’s layered risk. Think of food in the fridge that smells off—toss it. The alternative? Get sick. Which is better?
Who decides strategy?
Clients set the objectives—“I want to settle,” “I want to be acquitted,” “I want to testify.” Attorneys determine the means.
Many clients believe that because the case involves their life or business, they should have input on every strategic detail. But they are emotionally entrenched; we, hopefully, are not. And they don’t know the rules that take years to master.
Collaboration on every strategic detail is a fool’s errand. Don’t fall for it.
Final word
These three basics—knowing when to take a case and how and when to withdraw, handling conflicts early, and keeping disciplined on client input—are foundations to effective practice. Ask any seasoned attorney. Experience teaches that good judgment includes knowing when to walk away.•
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Roy Graham is a criminal and family lawyer in Bloomington. Opinions expressed are those of the author.
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