Switching Attorneys

I don’t like taking over cases from other lawyers. In a perfect world, I would begin representing every client before charges are filed and stay with the case to the very end. That said, like pretty much every other lawyer I know, a good-sized portion of my clients come to me from other criminal defense attorneys. They seem to be split evenly between people previously represented by public defenders and people previously represented by private attorneys. They’re usually looking for a new lawyer for the same kinds of reasons.

I hear many people say they want a new lawyer because their lawyer does not return their calls. I usually take that statement with a grain of salt. A lot of lawyers don’t return calls as they should, but some clients have unreasonable expectations regarding their lawyer’s time. Failing to return one out of the fifty calls a clients makes each day is probably not going to make me think badly of another lawyer.

Many people also tell me their lawyer has done nothing. I’ve had clients come in where that appears to be true. I’ve reviewed plenty of cases with great grand jury issues meriting remand, only to look at the case histories and see nothing was filed before the 25-day deadline in the rules. On the other hand, I’ve also reviewed cases for prospective clients where, although I’d like to handle the case, I tell them their lawyer is doing an excellent job. Most commonly, I see that happen in cases where public defenders were involved. No matter how good a job they do, some clients will never be satisfied with a free lawyer.

The most common situation I encounter in initial consultations, however, involves a client who comes to me primarily because they are dissatisfied with the plea they’ve been offered. It happens all the time.

I am pretty familiar with the plea bargaining guidelines for a lot of Arizona jurisdictions. I’m also pretty familiar with how much wiggle room the assigned prosecutor has in deviating from the guidelines. If I see a plea that’s above the guideline range or that appears highly likely to be made more lenient based on my experience with deviations, there is a decent chance the client’s attorney either did something wrong or didn’t do anything at all. The client may benefit from a new lawyer.

Things get more complicated when a client comes to me with a decent plea and claims his lawyer should have gotten him something better. The problem is that the mere act of switching lawyers sometimes result in a better plea. It almost seems like criminal defense attorney sacrilege to say it, but it’s true. It may not happen often, but it happens.

I’ve had clients whose previous lawyers did everything I would’ve done. They filed every motion, made every argument, and submitted a strong request for the state to deviate from the applicable plea bargaining guidelines. The deal, however, didn’t change. I suspect the state probably thought, “as trial comes closer and the plea deadline is about to expire, this defendant is going to cave in and take the plea when he realizes it isn’t going to get any better.” Unfortunately for the state, the client didn’t realize that was the only offer, and instead of caving in and taking the deal, he started blaming his lawyer for everything.

Switching lawyers drags out the process and, at the very least, results in a little more work for everyone. For all but the laziest of prosecutors, it means more time and effort. It means there will be yet another case lingering in his or her already-excessive caseload, and because of that, the prosecutor may come back with something closer to the deal the client wanted all along. The prosecutor also may change the deal because he feels sorry for the new lawyer, whom he may perceive as having just gotten stuck with a difficult client.

The client thinks it’s because the new attorney is amazing, or maybe it just confirms the client’s suspicion that every defendant gets three pleas, the last of which is the best. That criminal defense urban legend was all the rage among inmates in the Pinal County jail about this time last year. Regardless, switching attorneys worked for that client.

It all comes down to one thing: the squeaky wheel gets the grease. Sometimes. Sure, sometimes it squeaks until the plea expires, then ends up taking a worse plea on the day of trial. It also occasionally squeaks all the way through trial and ends up serving an aggravated prison term. But every once in a while, it squeaks at just the right time to just the right prosecutor and ends up with the plea it wanted all along.