A blog by Miami Criminal Defense Lawyer Brian Tannebaum. Commenting on criminal law issues of local and national interest.

Thursday, January 01, 2009

Go Find Another "Second" Lawyer

UPDATE: Prosecutor Ken Lammers explains his view of the "Second Lawyer" from the other side of the courtroom.

I believe the main reason many criminal defense lawyers hate their practices is not the stress of oppressive sentencing guidelines, case law that is mostly "against us," or trials that seem "impossible" to win.

I believe it is because we often let our practices manage us, rather than the other way around.

Translated, if you want to stop "running around," take fewer cases, charge fees that are in line with your value and not your need for "this month's rent." Turn down clients that appear to have a different idea of your role as criminal defense counsel, and get paid up front instead of chasing clients for unpaid balances.

Most of the time when I say these things to criminal defense lawyers, they act like I'm telling them to do the impossible. "You can't do those things in 'my town.'" "I could never do that." "I have to take every case that comes in." "I have to do payment plans."

No, you don't.

There's also something else you don't have to do, and that I do not do.

I will not be someone's second lawyer.

I began to follow this policy a couple years ago.

Yes, there is an exception.

But first, the rule.

I will not be someone's second lawyer.


Generally, if someone is not happy with their first lawyer, they will never be happy. Most of the time when someone calls me about their lawyer "doing nothing," I check the online docket to learn that depositions have been taken (yes, we have those in Florida), motions have been filed, and work is being done.

The call usually comes to my office after a "bad" plea offer. This is usually a plea offer that doesn't have the word "dismissal," or "time served."

Also, the call to be the second lawyer almost always comes with the cries of "no money," or request that you, the lawyer, assist in the request to lawyer 1 for the return of "nonrefundable" fees.

So when will I be the second lawyer?

When it's obvious that the client is not properly being represented. This determination is not based on advice given by the first lawyer. It has to be something more concrete. Something like the case is going to trial in one week, the lawyer has not returned any of the clients calls, refused to meet with the client, and no work has been done. This type of circumstance is rare.

Most of the time you are dealing with someone who is just never going to be happy.

So I usually refuse to even meet the client, and I will never pursue it when the call comes from a girlfriend or brother/sister (criminal defense lawyers know why). If a parent calls, I'll take the call, but probably not meet with the client.

In sum, there are people who will just never be happy, and I'm not going to spend my time trying to make them happy.

Oh, Happy New Year.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com


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  1. Anonymous5:59 PM

    I agree with you on this. My practice is small. I wouldn't mind it being a little bit larger, but I have avoided some offers for work because I don't want to be overwhelmed. (Certain offers to join appointment panels, for example.) I want to be able to focus on the cases I have.

    And I refuse any offers to become a "second" lawyer on the same basis I'd refuse to be the "first" lawyer. If a client can't pay without my "getting their money back" from another attorney, then they can't pay. If the reason for wanting a new attorney isn't concrete and well-founded, as you noted, I won't take it.

    Sometimes, I'll even ask the client's permission to talk to the other attorney before any decisions are made, with the idea of helping them salvage a relationship and get what they need without hiring me and losing any non-refundable fees.

  2. Rick, you make a great point that I believe is the cornerstone of what separates some of the criminal defense bar.

    I always ask about the current lawyer. If it's someone I know well, or even if it's just that I don't want the client to mortgage their life to defend themselves, I will try to salvage the relationship. I'll ask questions to determine the breakdown, and sometimes even (with the client's permission) talk to the lawyer and let them know there's an issue that can be resolved.

    Unfortunately there is a group of criminal defense lawyers who only see dollar signs, no matter how small, and will just take the case, and the client's money.

  3. I’d rather have one case at $10,000 than 10 cases at $1,000 each. I can do a better job for the client and have time for my family. The key word is value. What you charge is, in part, directly related to your self image. Some lawyers don’t value their services and they charge accordingly. I know brilliant lawyers who have been practicing for 25 years that don’t charge squat.

    If you don’t get the money up front, you ain’t gettin’ it. If you are not firm on the price, the client will think you won’t be firm with the prosecutor.

    If someone has another lawyer, I don’t talk with them. I have my secretary tell ‘em there is a consultation fee they gotta pay before I’ll talk with them. Almost invariably, that sends them on to the next lawyer. You can’t please all the people all the time. Or is it, fool them...

    The classic “my boyfriend...” call is one that never ends good.

  4. Great (and timely for me) post. My goal for the next year is to take fewer cases, and be more selective. I get sucked in too often because I feel sorry for a client, or maybe his family. No matter how good you are though, there are only a certain number of hours in the day. If you spread yourself too thin, you aren't doing anyone any favors.

    I also agree with the comments about helping to salvage the relationship. That is especially common when a client has an appointed lawyer (where you really know they have no money). Sometimes all they need is to hear from someone else that their lawyer is actually working for them.

  5. Good start to the new year in the practical blawgosphere.

    When the client is looking for the next lawyer, it is almost always because communications have failed between the client and the current lawyer. This is not anybody's "fault" -- the best of us can have difficulty communicating with some clients. I don't mind being lawyer 2, but a human who has paid money to lawyer 1 really should try to patch up the problem before spending money on lawyer 2.

    Grey, I'd rather have one case at $10,000 than 20 cases at $1,000 each.

    "I'm calling on behalf of my fiancé, and I need some information" means "the no-good bastard has promised to marry me if I get him a lawyer, but I don't have any actual money to hire a lawyer."

  6. Jorge Labarga was appointed to the Florida Supreme court.

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