Saturday, March 8, 2014

How NOT to Substitute in on a Case

NOTE:  The subject of this post can thank Mark BennettScott Greenfield, and Kathryn Kase for not being named in public.  They talked me out of identifying her, which I thought I should do as a public service to consumers.

In the criminal defense world, it is not unusual for clients to decide to change attorneys.  As I've mentioned before, criminal defense attorneys are very often the bearers of bad news to their clients, and those clients will sometimes believe that changing the messenger will change the news.  Court-appointed attorneys and Public Defenders are frequently "subbed out" because clients wrongfully believe that a prosecutor will be more intimidated by a "Free World Lawyer" than the one currently assigned to them.

Sometimes, clients who seek to substitute their appointed legal counsel will do their research and make a solid decision on whom they hire.  Sometimes a defendant may hire a lawyer who is a friend of the family that did a good job representing their uncle in his divorce.  Other times, they hire the cheapest lawyer they can find in the Greensheets, because even a cheap Free World Lawyer must certainly be better than a court-appointed one.

I handle both appointed and retained cases in my criminal practice.  On occasion, I'll get subbed out on my appointed cases.  Sometimes I get subbed out by great attorneys.  Sometimes, I get subbed out by . . . well, not-so-great attorneys.

The procedure for substituting attorneys is very simple.  I will get a phone call from the incoming attorney who lets me know that my client (or my client's family) has retained them.  As a matter of course, they will ask for my signature on a Motion to Substitute Counsel, and I will tell them to feel free to sign my name with my permission.  I then ask them to have my former client send me an authorization in writing and I will turn over the client file to the new attorney.  The new attorney then submits the Motion to Substitute to the Court, and everyone is happy.

Some attorneys in Harris County, however, focus more on taking money from unsuspecting clients and then not doing the job they were hired for.

Recently, I had a client who retained a young lady to substitute in for me on a criminal case that was already set for trial.  Judges, generally, are not adverse to letting a lawyer sub in after the case is set for trial, as long as the new attorney will be ready on trial day and the substitution isn't for purposes of delay.

In this instance, trial was still a month and a half away, so the new lawyer had plenty of time to get ready on this relatively uncomplicated case.  She called me and told me she was subbing in for me.  I told her she was welcome to sign my name on the Motion to Substitute.  She asked for my file and I told her I would gladly give it to her once I got written permission from the client.  She said she would get it to me A.S.A.P.

A couple of weeks went by and trial grew closer.  About three weeks out, I received written permission from client to give the file to the new attorney.  About five minutes after receiving the written permission, the attorney called me.

"Hi Murray," she said.  "Did you get the e-mail with [client's] permission to give me the file?"

"Yes," I said.  "I'm out of state right now, but I will be back Wednesday and I'll get it to you."

"That will be fine."

"You did file the Motion to Substitute with the Court, right?" I asked, as an afterthought.

"No.  Not yet."

"Um, okay.  Well, until you file the Motion to Substitute, I'm still his attorney.  Obviously, I can't give you the file if I'm still his lawyer.  I'll need it for trial."

"Okay," she said.  "I'll take care of that this week."

So, I get back from out-of-state and get another phone call from her.

"The judge wasn't in, so I couldn't sign on to the case," she told me.  "Can you meet me in court on Monday so we can both sign off on the case?"

At this point, we were two weeks away from trial.  About a month of her time had been squandered by not getting the Motion to Substitute in, but she still had time to prepare.  I told her that I didn't have court on Monday, but if she called me, I would come in.

Monday came and went without a phone call.

On Tuesday, I dropped by the Court to inquire about what was going on.  The Judge had no idea what I was talking about.  I called the attorney.  No answer.  No return call.  I called again.  No return call.

The following week, I dropped by the Court again and was told that the lawyer had finally dropped by.  At this point, trial was one week away.  The Coordinator said that the new lawyer had come in and told the court that she was substituting in and would be announcing "Not Ready" for trial the following week.  The Judge told her that she was welcome to to substitute in, but she would have to be ready for trial on Monday if she were going to do so.

The new lawyer did not bother to call and let me know any of this.  I tried to call her.  No return call.  I called again.  No return call.

At this point, things are complicated.  A person charged with a crime is entitled to hire whomever he wishes to represent him.  This client wished to have the new attorney and not me.  This client's girlfriend had paid the new attorney.  Trial was in five days and there seemed to be no answer over whether or not the new lawyer was going to show up and announce "ready."

I called the attorney again.  No return call.  I called the client's girlfriend who said that she had talked to the new attorney the day before.  She said that the new attorney had informed her that she would be in court on trial day, but wouldn't be ready because I had refused to give her the client's file.  I asked the client's girlfriend to call the new attorney again, since the new attorney was clearly not returning any of my phone calls.  The girlfriend called.  No answer and no return call.

Ultimately, I had the client brought to court a day early so that everyone could figure out just what was going to happen on trial day.  Understandably, he was not a happy camper with anyone involved.  Without going into details, the case was resolved on that day.

The new attorney never subbed in.  The new attorney never did any work on the case.  The new attorney did nothing but create chaos in my client's representation.

Other than collecting a fee, of course.


Anonymous said...

I think you should name her. However, I think she should have the right to defend herself and/or give her side of the story. If she doesn't want to comment, then say so. But I think it's only right to let people know about this unethical lawyer. She apparently lied to her clients and apparently she was prepared to lie to the court and make an ass out of you. It probably wasn't personal. She might have done the same to Mark, Scott, or Kathryn.

A Harris County Lawyer said...

Anon 11:19 a.m.,

Trust me, I REALLY REALLY REALLY wanted to post her name. However, I respect the advice of those three lawyers. Scott and Mark both run highly read blogs and have proven time and again that they aren't afraid to name names when they feel appropriate.

If THOSE GUYS are advising me not to name her, I listen.

If the word gets back to her about this post and she wants to respond, she is more than welcome to do so -- on the condition that she identify herself while doing so.

Lee said...

Listen to Kathryn (like I should have more often). You can trust her sound judgment.

Jason Truitt said...

I've been fairly amazed at criminal lawyers. I hadn't reported a lawyer to the bar in 14 years of doing primarily civil work, but recently reported one on a criminal case. Some chucklehead thought it was OK to represent co-defendants in a possession case with adverse defenses, and then advise one to flip on the other. And had the balls to wonder why I was pissed off about it?

There are some excellent criminal lawyers out there. Many who are better than I ever will be. But there seem to be far more who, for whatever reason (usually a lack of options), hung up a shingle and learned how to do things the wrong way from the start. The family and criminal courthouses are full of these lawyers.


Anonymous said...

Truitt--the only reason you don't see the same types of lawyers in the civil courthouse is because they have already been raped by good civil outside of the courtroom--where 99.9 percent of all civil work happens. There are a hell of a lot more civil lawyers than criminal lawyers, and a lot of them had "lack of options" as well. Civil lawyers aren't smarter or better than criminal lawyers, they just tend to have more money.

Jason Truitt said...

Never said there weren't bad civil lawyers, and a lot of them. I've dealt with loads of them. But the majority of lawyers doing criminal and family work, in my experience, fit that bill. It is not intended as an indictment of criminal lawyers, generally, and certainly not of the practice. The structure of the civil side of the profession has its down side, but the good thing about it is that it trains young lawyers and provides mentors, or at least supervision to ward off malpractice claims (and bill more for a case). The family and criminal practices do very little of that, except in the odd instance where there are several lawyers practicing together.

It's also apparent that much more needs to be done outside of the criminal courtroom as well. I know there's a culture of just going down to court and trying cases, but that's not necessarily a good thing. The fact that civil cases settle and criminal cases go to trial may mean that more civil cases are properly worked up ahead of time, and fewer criminal cases get the pre-trial attention they really should have. You may see it as rape, but it may just as often be good work-up that makes the other side take less, or pay more, than they wanted to.


Anonymous said...

This is way off topic, and I apologize. But Judge Dupuy (of Galveston fame) has filed a motion to recuse Judge Fields. The motion claims Judge Fields of being a bully, of asking defendants questions directly, of ordering them to court with very little notice and adding bond conditions after a disagreement with Dupuy. (I know, the irony). However, if you have ever practiced in Court 14, well... I am looking forward to the hearing. And it's time for a change in that court.

Anonymous said...

I think you might run afoul of the Rule of Professional Conduct if you dimed her out publicly.

Anonymous said...

I bet Barry Smithermsn would have never let that happen.

Criminal Lawyer McKinney said...

It is the truth for criminal lawyers that their clients may not get 100% satisfaction from their lawyers because they may not be able to perform what they expected. There are so many things depend on a case for a criminal lawyer which a client can never understand.

Anonymous said...

The original "court appointed" attorney who was asked to be subbed out by the "privately retained" attorney could have easily made a copy of the client's file and given it to the new attorney instead of being difficult and not given the new attorney anything. It seems the old attorney's ego was the real problem here.

Murray Newman said...

Anon June 13th,

Perhaps you should be a little more familiar with the rules of client representation. I can't turn over a thing to an attorney without my client's permission. Not to mention you would have the "appointed attorney" handing over information to someone who doesn't represent the client.

I hope you aren't a lawyer, because that would get you disbarred very quickly.