Calling a Lawyer for Someone Who Won't Call One Himself.

Yes, you can certainly reach out to our firm and we can provide information. And, yes, you can even pay for defense counsel. However, as ABA Model Rule 1.2(a) states, a lawyer is an agent for the client, not the third party who contacts the lawyer, and (ordinarily) not the third party who pays the lawyer.

Even if you contact and pay defense counsel, you cannot unilaterally bind a competent adult to retain counsel. The subject of the investigation (i.e., the defendant) remains the client, and the subject of the investigation retains final decision-making authority. While the subject is the only person who can authorize legal services, he or she is also the only person who can decide which services to authorize.

As a result, we must confirm that the subject of the investigation desires to retain us as defense counsel, and he must make the final decisions about the objectives of the representation. This includes whether to plead, whether to try the case, whether to contact prosecutors on his behalf, and so on.

What about online legal questions? If you ask an online legal question, is that the same as retaining a lawyer? In most cases, even if you are asking on behalf of yourself, it will be less of a relationship than if you called in to inquire about paying. But even if you are asking on behalf of someone else and you even are willing to pay, this still doesn’t bind the subject to representation. The subject can only be bound to the representation and its attendant costs if he allows himself to be represented.

What can I do before the person agrees?

Family members and other individuals can absolutely do much more than reach out to a potential lawyer to ask about retaining representation for an adult who hasn’t accepted the services. All you have to do is call defense counsel. At that point, you can do more than compare defense lawyers, and, obviously, you can do more than inquire about defense attorney fees. You can also schedule your consultation (or call it a free defense attorney consultation), arrange transportation, and do anything else necessary to facilitate the accused’s first appearance before a lawyer.

What should I tell a potential defense attorney?

When you reach out to potential defense counsel, you should be prepared to tell them:

• Your relative’s name
• Where they are (i.e., where are they currently located?)
• What charges are pending (if known)
• When is your relative’s court appearance (if known)
• Whether the government is attempting to question your relative
• Whether your relative has legal counsel
• Who should the defense attorney contact?

Regarding the name of the accused, once you tell a lawyer your relative’s name, this allows the lawyer to run a conflict check. The conflict check is essential before discussing the facts of the case because the lawyer needs to make sure that it is ethical and appropriate for the lawyer to talk to you.

What else can I tell a potential defense attorney?

When you tell a lawyer where the person accused is located, that will help establish how urgently the case may be. If the person is in jail and a judge is deciding whether to afford probation and release for the person accused, time is of the essence. If the person is in the courthouse, time is of the essence. If a court date has already been set and the person doesn’t have a lawyer, then time is once again of the essence. But, obviously, the attorney needs to be able to practice in the jurisdiction where the accused is facing charges. Even in a federal case, an attorney’s federal licensing status may be tied to a particular federal district.

What should I avoid telling a potential defense attorney?

If you find a lawyer and a lawyer you trust to defend your loved one, you don’t want to complicate the case. As a result, you should avoid talking about details about the case without talking to your defense lawyer first. When you’re calling a defense lawyer about representation for an adult who hasn’t accepted the representation, avoid making admissions or speculating about whether you know who is guilty or innocent. The last thing you want to do is create unnecessary complications before the attorney can talk to your relative. Even, if you believe that you know the exact facts and narrative, you should avoid telling your defense attorney unless the lawyer specifically asks you to explain. If you have specific and useful information, your defense attorney can arrange for you to disclose that information to them once they speak with the subject of the investigation.

Regarding the case facts, once your defense attorney tells you that he can represent your loved one, then the case details may be important. But, unless you’re willing to pay for the lawyer to defend your loved one, the lawyer cannot advise you about the case.

Who controls the defense if I pay?

As ABA Model Rule 1.8(f) explains, a lawyer can accept a third party’s payment of legal fees for representation if:

• (i) the client gives informed consent;
• (ii) the payment does not interfere with the lawyer’s independent professional judgment, independence, or the lawyer-client relationship; and,
• (iii) information relating to the representation remains protected as required by ABA Model Rule 1.6.

As ABA Model Rule 5.4(c) explains, even if a third party pays the fee for a lawyer, the third party cannot direct the lawyer’s professional judgment. And, while the attorney is permitted to accept payment from third parties, he is still prohibited from accepting a fee from a third party to do something for a client that does not serve the client’s best interests.

Are family members entitled to case updates just because they pay the legal fees?

Not necessarily. As the payer of legal fees, you may be entitled to receive updates on the case if you have an agreement that grants you that right. However, even then, the client still has ultimate authority over which communications are released, which case documents are released, and which family members or friends are allowed to access the lawyer’s records. Defense lawyers generally need client permission before they can disclose anything at all. In order for the attorney to provide case updates, either the accused will either give their client permission verbally or provide a written authorization. If the client is in jail or otherwise unavailable, he or she may grant written authorization for his or her representation. Within the written authorization, the client will list the family members that the attorney is allowed to contact and designate the scope of the family members’ knowledge.

How can I find out more about the representation and the fee basis?

Per ABA Model Rule 1.5(b), if you pay the fee, your attorney will discuss the representation’s scope and basis of the fee with the subject of the investigation. And, per ABA Model Rule 1.8(f), your attorney will discuss the representation’s scope and basis of the fee with the subject of the investigation before he, she, or they can provide any updates on the case to the third-party payer. This is how your attorney can protect your relative’s confidentiality while you still pay the legal fees.

How can I help someone who is in jail?

If your loved one is in jail, then it is more important to contact defense counsel quickly. Your defense attorney can often initiate contact with your loved one in order to facilitate communication. If your loved one is in jail, then talking about your case requires particular care. For example, in an attorney-client jail visit, the visit is typically confidential. However, attorney-client visits are not necessarily guaranteed if your loved one is in jail, so you need to contact defense counsel before planning an attorney-client jail visit. In general, any call or text made from the facility will be recorded by the authorities. As a result, anyone calling a loved one who is in jail should talk about things that he or she wouldn’t mind having the government listen in on. Jail calls lack attorney-client confidentiality privileges, and jail calls do not have the privilege attached. As a result, calls are the easiest way for individuals to unintentionally disclose incriminating information to the authorities.

When should I contact defense counsel on behalf of a loved one?

If your loved one is arrested, being questioned by federal law enforcement, is pending arraignment, or has a pending bail hearing, then, again, time is of the essence. Whether or not your loved one has requested a lawyer, the government cannot hold him or her indefinitely, a federal arrestee must be brought before a magistrate judge without unnecessary delay, and after a warrantless arrest a probable cause determination is generally required within 48 hours. At any point, your defense lawyer can intervene and work to get your loved one released.

What can a defendant do if they cannot afford a private defense attorney?

If a defendant cannot afford a private defense attorney, then the court will appoint counsel if he or she qualifies. As a result, the defendant can call a lawyer and explain his or her circumstances. At that point, defense counsel can advise on the process for receiving court-appointed defense counsel.

When can a defendant request court-appointed defense counsel?

A defendant facing possible incarceration will typically receive court-appointed counsel upon arraignment or when a person’s indigent status is determined. Generally, the defendant must request court-appointed counsel, and courts will not appoint one automatically. As a result, the defendant needs to request this from the court. If the defendant is being questioned, he or she can invoke the right to remain silent and request counsel at that point. This is the same right that applies during pretrial or preliminary hearings, and that same right applies during trial as well. The right to have appointed counsel is guaranteed by the Sixth Amendment, which protections apply during all critical stages of criminal prosecution.

This is the point at which most people call a lawyer. Spodek Law Group takes federal criminal defense cases nationwide from its New York and Los Angeles offices.

Will family messages and calls stay confidential?

The attorney-client privilege protects communications made to you by your lawyer, to your lawyer, and through your lawyer. It does not protect the underlying historical facts. This means that while the fact that you called the lawyer to discuss these facts is privileged, the facts themselves may not be. Additionally, including friends or family members in conversations with your lawyer can potentially create evidence that your lawyer would otherwise protect.

The attorney-client privilege belongs to the client, not the person paying for the lawyer to represent the client. So, even if you paid the lawyer’s fees, the privilege does not cover any communications you had with the lawyer if you are not the client. Also, any conversation with someone who is not your lawyer, including your family members, friends, coworkers, or cellmates, creates evidence for prosecutors to use. Social media posts about pending charges, text messages, emails, and copying family members on emails to your lawyer can also be subpoenaed and used as evidence in court.

How much should a defendant share with their lawyer?

Regardless of the circumstances, a defendant should be candid with their lawyer. All details are important and a defendant should share all relevant facts with their lawyer, even if those facts may be damaging. Defense lawyers expect their clients to be honest, and they are not judged based on the facts of the case. Instead, they are judged on how they can protect their clients given the facts of the case. As a result, defendants and their lawyers can be completely candid with each other. This allows the lawyer to build the most effective defense strategy. One thing that does not qualify under the attorney-client privilege is a communication that is intended to further a future criminal act. This is known as the crime-fraud exception.

What if the person refuses or cannot decide?

Normally, criminal defendants make critical decisions. They decide whether they want to plead to the charges, whether they want to waive a jury trial, and whether they want to testify at the trial. Per Faretta v. California, the defendant in a criminal case also has the right to represent himself or herself. While a defendant can waive the right to have a lawyer for himself or herself, this waiver must be voluntary, knowing, and he or she must be competent to represent himself or herself. If these three things are not met, then defense counsel will intervene.

What if an adult does not have full mental capacity?

ABA Model Rule 1.14 says that, generally, when a client has diminished capacity and has given the lawyer informed consent to have the lawyer help him or her with the case, the relationship with the lawyer should remain the same as it would have been if the client had normal capacity. If the client did not give the lawyer informed consent to represent him or her, but has diminished capacity and is still able to make informed decisions, the attorney is still obligated to represent the client to his or her best interests. However, in cases where a client has diminished capacity and has not yet given informed consent to representation, and the client’s diminished capacity creates a real danger that the client will experience substantial harm in the legal case, the attorney is permitted to make protective disclosures and take other appropriate action to prevent the harm. But, obviously, when addressing the defendant’s capacity to handle their legal case, he or she must be the able to have a rational understanding and be able to consult with counsel.

What if someone’s drug or alcohol use impairs their judgment?

It is not a good idea to rely on an impaired judgment to defend a criminal case. However, drug intoxication or intoxication due to alcohol alone does not mean that the person no longer has the right to make their own legal decisions. If the person is legally an adult, then their legal rights are still in place. As a result, intoxication by itself does not allow someone else (such as a parent, spouse, or other relative) to take over a defendant’s defense decisions.

What if someone is a minor?

Many times parents will call a lawyer to get advice or to discuss representation for their child. However, if their child is under 18 years of age, the attorney-client rules still vary from jurisdiction to jurisdiction, and parents may not be entitled to make legal decisions for their child. Instead, if the minor is facing criminal prosecution, the individual may need to seek a guardian ad litem. As a result, if you have questions, you should reach out to a defense attorney for the specific answers.

When can helping become a conflict or evidence problem?

While it does not make sense to say that family members cannot help their loved ones, it is important for family members to understand that assisting in their loved one’s defense does not equal making legal decisions about their loved one’s defense. Here are six situations when reaching out to defense counsel for a loved one, friend, coworker, or associate may have conflicts:

• You are the victim or you are a witness to the case against the other person
• The other person has a case against you
• You are a co-defendant, an accomplice, or you are a party protected under the law as a victim
• You are a co-defendant and believe that you want to take a different position than that of your loved one
• You have an active no-contact order
• You are willing or offering to pay for the lawyer’s representation of the other person, but the other person does not consent

The last two situations are not exactly examples of conflicts of interest, but in the latter situation, a lawyer cannot take over defense representation in a conflict-of-interest situation. ABA Model Rule 1.7 says that if you pay for a lawyer, the lawyer cannot represent you or your loved one in joint representation if it results in a conflict of interest. So, even if you are willing to pay, if you are the victim, a co-defendant, or a protected party, then a defense lawyer may be barred from joint representation.

If you have an active no-contact order, this means that your loved one is prohibited from contacting you, and you may be prohibited from contacting them as well. Therefore, you can’t contact them indirectly through your lawyer unless it’s permitted under the no-contact order. In a criminal case, if the no-contact order prevents a defendant from contacting witnesses, then prosecutors may call this “corrupt persuasion” which can be a violation of 18 U.S.C. § 1512.

What else do I need to know?

If you’re assisting someone in their criminal case, you should avoid making statements to investigators or discussing the case. Anything you tell investigators or prosecutors, and any evidence you provide to defense counsel, could end up as evidence in court. However, if the evidence you provide is used to further the crime, it could result in further criminal charges against you. Even if the evidence is used to build a defense, prosecutors can use the information you provide to the defense lawyer as part of a case they might have against you.

Get Advice on Your Situation

If you want someone to look at the specifics of your case, Spodek Law Group handles federal criminal defense nationwide from New York and Los Angeles. The firm has been practicing since 1976 and its motto is simple: we owe loyalty to only you. Call 212-300-5196.