Choosing a Federal Defense Lawyer: What Matters.

What to Look for in a Federal Defense Attorney

If you have any doubts at all, check your potential federal defense attorney’s credentials and experience yourself.

This is very easy and straightforward:

• Ask the attorney for their bar admission number (and bar, if more than one).
• Go to the website of the federal district court and search for the attorney in the bar members’ directory to confirm their admission to practice in that federal district.
• Ask the attorney about their trial experience in that district.
• Contact the court clerk to find out which criminal judges this attorney has frequently appeared before in this district.
• Search for the attorney in the attorney disciplinary board’s public directory to find out if they have a record of disciplinary action.
• Examine the attorney’s engagement letter.
• Ask the attorney what is included in their flat-fee, and check that this is noted in the engagement letter.
• Ask the attorney about the attorney’s staffing. If the attorney is a senior attorney or a partner, ask the attorney to identify the junior associate or the lawyer who will be doing most of the work in your case.
• Ask the attorney to identify the lawyer who will appear in court on your behalf and confirm that this is noted in the engagement letter.

  Can’t I Use a Federal Lawyer’s Credentials to Infer Their Experience?

No, because the same credentials can be possessed by a novice federal defense lawyer, a seasoned federal defense lawyer, or a former federal prosecutor. No, because even if the lawyer you engage were to have extensive experience handling federal criminal cases, his or her experience may not include experience in your particular federal district. You will never know for sure unless you ask, you will never know for sure unless you check.

How do I verify a federal lawyer’s credentials and record?

Does a Lawyer’s Bar Admission Certify Them to Represent Me in Federal Court?

No. State bar membership does not certify a lawyer to practice in federal court. Most (but not all) federal district courts have admission rules that apply on top of state bar membership. To represent you in federal district court, your lawyer must be admitted to practice in the relevant federal district court.

Many lawyers are only admitted to practice in federal district court in the state where they practice law. In certain cases, the attorney you select may be admitted to practice in the state where you are being charged, but not in the specific federal district where your case is pending. Some lawyers are not admitted to practice in any federal court.

Can’t a Lawyer Be Admitted Pro Hac Vice?

It is possible for a lawyer to gain admission pro hac vice, or "for this case only", to the district court where your federal criminal case is pending. However, it’s often not possible for the attorney to represent you as pro hac vice counsel. This is because most federal district courts require the appointment of local counsel. In other words, a lawyer who is admitted to the relevant district court must serve as co-counsel to a pro hac vice lawyer. Additionally, in order to secure pro hac vice admission, the lawyer must first obtain the judge’s approval.

Does the Relevant Federal District Court Set All the Requirements for Attorney Admission?

No. While the relevant federal district court sets the basic requirements for attorney admission to federal district court, it also maintains its own local rules governing standing to appear and attorney discipline. It sets no requirements to make any difference between a seasoned federal defense attorney and a novice federal defense attorney.

Do the Requirements for Attorney Admission to Federal Court Vary from One Federal District Court to Another?

Yes. While the requirements vary slightly from district to district, most are very similar. Each federal district court, however, has its own admission rules and disciplinary rules.

Does Admission in One Federal District Grant Admission in All Other Federal Districts?

No. Admission to practice in one federal district does not grant admission to practice in another federal district. You will want to confirm that your federal defense lawyer is admitted to practice in the relevant federal district.

Can I Confirm Your Lawyer’s Appearances in Federal Court, the Client Type and the Case Type of the Lawyer’s Appearances, and Which Judge

and Which Opposing Counsel the Lawyer Has Appeared Before?

Yes. This information is public record and is available via PACER. By searching a prospective attorney’s PACER docket, you can identify whether the attorney has experience handling your specific type of case in the federal district where your case is pending. You can also confirm whether the attorney represented the government or the defense.

How Do I Check for Any Discipline That May Have Been Levied Against My Prospective Defense Attorney?

Public disciplinary records are also available online. You can find any sanctions, admonishments, or disciplinary actions taken against your prospective federal defense lawyer via their state bar website. In many cases, federal district courts also maintain disciplinary records independently. It is important to confirm your defense attorney does not have a record of federal-court discipline.

What About a Lawyer’s Board Certification?

Board certification does not make a lawyer a certified federal defense attorney. Board certification in federal criminal law does exist in a few states, the North Carolina State Bar, for example, certifies lawyers as Board Certified Specialists in Federal Criminal Law, but there is no nationwide certification, and most lawyers who handle federal criminal cases hold no such credential. Lawyers may be board-certified in other areas such as federal taxation or tax litigation.

How can I verify claimed federal case results?

Can I Verify the Number of Federal Cases the Attorney Has Handled?

No. While published opinions provide a way to verify some cases, there is a difference between the cases that will make the news and the cases that will be filed on PACER.

An attorney’s PACER filings are not the sum of their cases. Many of these cases will be filed on PACER; however, cases that did not go to trial, cases that didn’t result in appeals, and cases that did not result in published opinions are missing.

Do “No Bill” Outcomes Count Toward a Lawyer’s Federal Case Result Percentage?

It depends on how the lawyer calculates the percentage. To calculate the percentage of a lawyer’s case results that are favorable to their clients, the lawyer needs to determine:

(i) whether “no bill” outcomes count as “favorable,” and

(ii) whether the cases count toward the lawyer’s case results handled.

If (i) is yes and (ii) is yes, then “no bill” outcomes can contribute to a lawyer’s favorable result percentage.

Do I need to Care About a Lawyer’s “No Bill” Results?

You should focus on all of the lawyer’s results. If an attorney says he or she has a history of “no bills,” he or she has a history of not having clients face criminal charges. This is important in cases where the United States is still undecided on whether it has enough to make a criminal case.

Do I Need to Give Weight to Favorable Case Results in the Lawyer’s Past Federal Defense Cases?

Only if the result is favorable given the charges, the evidence against the defendant, and the defendant’s objectives. It’s never possible to know what the disposition “should have been” in any criminal case. A factual presumption of favorable case results may be helpful, but not enough to justify relying on the attorney.

Can I Verify Case Results for Cases Filed on PACER?

Yes. If an attorney’s case results can be filed on PACER, you can verify the disposition and the lawyer’s role. You can verify the charged offense(s), the outcome, the length of sentencing, and when the attorney entered his or her notice of appearance as counsel-of-record.

Does My Attorney’s Notice of Appearance Verify the Attorney’s Work in the Case?

No. An attorney’s notice of appearance as counsel-of-record indicates that the attorney was the attorney for the case. But it doesn’t prove that the attorney personally directed the defense, negotiated a plea, or otherwise contributed to the outcome of the case.

What About Cases That Did Not End up on PACER?

If you have the opportunity to do so, ask a prospective attorney about any cases that may not be available via PACER. A target letter, a subpoena, or a proffer agreement can show the attorney’s work in the case.

What Does “Percentage of Favorable Case Results” Actually Mean?

The percentage of “favorable case results” has no meaning without the context of the data. You will never know the percentage’s value without knowing:

(i) the numerator; (ii) the denominator; (iii) the timeframe in which the cases were tried; and, (iv) the criteria used to define “favorable case results.”

Can a Lawyer’s Disposition Confirm the Lawyer’s Contribution?

No. A disposition simply confirms the disposition, regardless of whether the attorney contributed.

Do Client Testimonials Count as Independent Verification of a Lawyer’s Case Result?

No, client testimonials are not independent verification of the truth. If you’re interested in a lawyer’s prior case result, you should check it against the records filed on PACER.

Will This Lawyer Personally Protect Only My Interests?

If you are under investigation, you may be one of several people targeted by the United States. While it may seem convenient to share the same federal defense lawyer as others, that attorney must disclose all conflicts of interest. A client’s right to effective assistance of counsel under the Sixth Amendment includes the right to representation free of conflicts.

Joint representation in a criminal matter often presents inherent conflicts. When one attorney represents multiple defendants, the attorney may be unable to advise a client on whether to plea, whether to cooperatively plead guilty, whether to testify, or whether to refuse trial. As a result, the attorney can only advise the client when both defendants have the same interest.

Who Makes the Decision to Plead Guilty or Refuse Trial?

The decision to plead guilty or refuse trial is entirely your decision. You can change your plea and trial wishes.

Will My Lawyer Advise Me on Matters Other Than Criminal Penalties?

As we discussed above, a sentencing outcome can carry significant non-criminal penalties. Your defense lawyer may need to advise you on matters related to:

• Immigration consequences
• Driver’s license suspension or revocation
• Suspension or revocation of a professional license
• Loss of employment opportunities
• Asset forfeiture or restitution

If these penalties are likely to be imposed by your case’s ultimate outcome, you have the right to demand that your defense lawyer provides advice on these and other matters as they impact you.

Should My Attorney Disclose the Risks of Joint Representation to the Judge?

If you select joint representation, then under Federal Rule of Criminal Procedure 44(c) (and in some cases, 44(b)), you have the right to ask your attorney to bring any potential conflict to the presiding judge.

The judge’s hearing will be focused on:

(i) whether your attorney’s representation of you presents any conflicts, and

(ii) whether those conflicts would impair your ability to be effectively represented as required by the Sixth Amendment.

Can Both Defendants Consent to Conflict-Ridden Joint Representation?

Under ABA Model Rule 1.7(b), there are circumstances in which a client cannot consent to a conflict. This occurs if:

(i) the representation of the other client would interfere with the lawyer’s ability to represent your interest, or

(ii) the representation involves the assertion of a claim by one client against another client represented by the same lawyer in the same litigation or other proceeding before a tribunal.

Will My Defense Attorney Disclose My Confidential Information to Anyone Else?

No. ABA Model Rule 1.6 generally precludes a lawyer from disclosing confidential information without the client’s informed consent, subject to very few exceptions (such as the risk of reasonably certain death or substantial bodily harm, reporting of a crime that the lawyer knows was committed using the client’s or lawyer’s services, etc.). The rule protects “information relating to the representation of a client,” regardless of whether it was voluntarily provided or a third party obtained.

Can My Criminal Defense Lawyer and Civil Counsel Assist Each Other to Get to the Best Outcome?

Even though there are criminal and civil defenses, the two are often closely intertwined. Criminal defendants may face parallel civil proceedings. The information disclosed by a federal defendant in a criminal case can potentially be used by both the prosecutor and the adversary in the civil proceedings. These are issues you need to make informed decisions about.

What Should a Federal Defense Lawyer’s Fee Agreement Say?

Due to the costs of federal defense, fee agreements will vary. Factors that may drive these costs include:

• The number of motions the lawyer files,
• The amount of discovery the lawyer receives,
• The number of expert witnesses the lawyer engages,
• The amount of trial testimony the lawyer conducts,

Some experienced attorneys charge flat fees, while some charge by the hour. Others use an hourly fee structure that varies based on which attorney is handling a task.

Under ABA Model Rule 1.5(b), the scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible must be communicated to the client, preferably in writing, before or within a reasonable time after the representation begins. If the attorney is not going to be hired on a flat-fee, the attorney’s agreement must contain the attorney’s hourly rates, and the lawyer must state what expenses, if any, the client will have to pay.

Why Is the Fee Only so Low for My Case?

A low flat fee could be a signal that the fee does not include certain stages or certain expenses. While this is not always the case, it’s important to verify what is and isn’t included in your defense attorney’s flat fee.

What is Included in Your Lawyer’s Flat Fee?

Many lawyers charge separate fees for each phase of your federal criminal defense. Under ABA Model Rule 1.16(d) (see explanation below), the lawyer is obligated to refund any unearned advance fee and all unincurred expenses to your lawyer when your lawyer terminates the representation.

Can I Afford a Federal Criminal Defense Attorney?

In many cases, defendants will be able to afford a federal criminal defense attorney. If the defendant is able to pay the defense attorney’s fees, then the attorney will be retained for a fee.

Under the federal statutes at 18 U.S.C. § 3006A, however, if the defendant is financially eligible, then the United States is required to provide defense counsel to the defendant. Federal appointed counsel will either be a federal defender, or a qualified private attorney who accepts court-appointed cases (often referred to as CJA panel lawyers).

How Long Will It Take to Reach My Trial Verdict?

Federal criminal cases can be resolved with no charges, minimal charges, or no charges in months. Complex matters can take over a year. It is up to the attorney to evaluate all the facts and circumstances involved in your particular case.

What Should You Do Now?

If you are under federal investigation, it is important to do what you can to make informed decisions about your defense. This requires doing diligence to know which attorney, which law firm, which attorney-client fee arrangement you select to represent you. Spodek Law Group is a federal criminal defense firm that handles federal matters. We offer free and confidential initial consultations and federal criminal defense advice.

What experience actually proves federal criminal defense competence?

What Experience Does a Lawyer Need to Have to Be Competent at Handling Federal Criminal Defense Cases?

To be competent at handling federal criminal defense cases, a lawyer needs more than credentials and prior experience as a former federal prosecutor. While this is important, it alone does not guarantee that the lawyer is competent to represent you.

Experience handling matters that relate to discovery and discovery obligations is one of those key skill sets that help you in the end. In federal criminal trials, there are multiple aspects of discovery. It is very important that your defense lawyer has sufficient experience dealing with these multiple types of discovery obligations under Federal Rule 16, and understands your defenses and defenses available to you in each situation.

Is Your Lawyer Experienced with Rule 16?

Under Federal Rule of Criminal Procedure 16, prosecutors must disclose specific categories of information to the defense attorney if the government is offering proof of its substance at trial. While these items are not what is known as “everything,” there are many exceptions. If your attorney is familiar with Rule 16, he or she can help protect your interests by convincing the federal prosecutor to disclose all necessary information that are admissible at trial.

What Are Brady and Giglio Disclosures?

Unlike Rule 16, which governs evidence disclosures during the pretrial phase of federal proceedings, Brady disclosures only apply to material evidence that is “favorable to the accused” in any manner, whether it is useful to establish the defendant’s innocence, useful to reduce the potential sentence, or other material evidence. Like Rule 16, it is critical that your attorney knows how to push for Brady disclosures as needed.

Giglio is similar to the Brady disclosure requirement; however, it only applies to material impeachment evidence. The obligation to disclose Giglio evidence is imposed on the government’s attorneys because a Giglio disclosure is required to be made in order to ensure the court’s ability to weigh the credibility of government witness testimony.

What Is the Jencks Act?

The Jencks Act imposes a separate discovery obligation on federal prosecutors. However, while prosecutors are required to provide Jencks Act statements, they typically need only to provide the statements after the witness testifies.

There are procedural rules, substantive rules, statutory rules, and rules derived from the Constitution. Rule 16 is a procedural rule, while Brady and Giglio disclosures are derived from the Constitution. The Jencks Act is statutory. Understanding when and why these disclosures apply is critical.

Does Your Federal Defense Lawyer Have Experience Advising on Federal Sentencing?

Even if you are not charged, or not yet convicted, you will want to understand your defense attorney’s experience advising clients on the potential sentence if convicted.

For federal offenses, the United States Sentencing Guidelines generally apply. Although these Guidelines are advisory (i.e., they do not dictate the sentence that the judge imposes), judges must still properly calculate the relevant advisory range. The Guideline ranges are broad, and calculations are complex; and many judges make significant errors that can lead to substantial over-sentencing in federal court.

Additionally, judges are required to evaluate various factors outside the Guidelines when determining a final sentence. These factors fall under 18 U.S.C. § 3553(a). In addition to the Sentencing Guidelines and statutory maximum, judges must give “due consideration” to the factors in Section 3553(a) and sentence federal criminal defendants within the range that makes sense based on all these considerations.

Contact a Federal Criminal Defense Attorney

Nothing here is legal advice, and the details of your case matter. Todd Spodek and Spodek Law Group take federal criminal and white collar cases nationwide, from offices in New York, Brooklyn, Queens and Los Angeles. You can reach the firm at 212-300-5196.