Brown & Little, P.L.C. » Clients, Courts, Ethics, Judges » Picking the Wrong Lawyer

Picking the Wrong Lawyer

Yesterday wasn’t such a great day for me. After losing a bench trial I doubt I would’ve lost had it been in front of a jury, the judge informed my client the she had a bench warrant for failing to appear in another pending case in the same jurisdiction. There was a police officer waiting in the gallery to take her into custody.

My client had hired one of those firms with billboards and posters everywhere to handle her first case. Dissatisfied with the representation, she hired me to handle the second. She complained about how hard it was to reach her other lawyer and how she felt he kept her in the dark about everything. My experience trying to stay in the loop with the other lawyer made me inclined to trust what my client told me. I had no idea how bad things really were until the judge started describing the circumstances surrounding the warrant.

Last August, a lawyer at the firm she hired entered his appearance. A month later, he withdrew and a different lawyer at the same firm came on. A month after that, there was supposed to be a hearing but the lawyer didn’t show up. He also hadn’t told the client about it and didn’t bother filing a motion to continue. The judge set it for a calendar call and jury trial in November. Ten days before the November calendar call, the second lawyer filed a motion to withdraw, which the judge was supposed to rule on at the calendar call. At the calendar call, however, the lawyer yet again didn’t show up and hadn’t bothered telling the client about it or filing a motion to continue. In a move that gives me a headache just thinking about it, the court granted the second lawyer’s motion to withdraw, issued a warrant for my client’s arrest, and ordered a $500.00 secured bond.

After realizing there was an active warrant a month later, my client showed up with a third lawyer from the firm. The third lawyer entered his appearance but doesn’t appear to have explained the situation or attempted to get my client’s release conditions changed at all. My client had to post the bond. It was then set for January, and for once, the firm finally filed a motion to continue instead of just failing to appear. The court reset it for February. On that date, for the third time, my client’s lawyer didn’t show up, didn’t tell my client about the hearing, and didn’t file a motion to continue. The court set it for trial in March.

Her third lawyer filed a motion to continue the March trial, which the court granted. It set a new calendar call and a trial in April. For the fourth time, my client’s lawyer didn’t tell her about it, didn’t show up, and didn’t file a motion to continue. The court forfeited my client’s bond and issued a bench warrant. In May, after the court told the third lawyer about the warrant, he filed a motion to quash. The court granted it and set the case for a hearing in June.

As if things couldn’t get more fucked up, for the fifth time, my client’s lawyer failed to notify her of a hearing, failed to appear, and failed to timely file a motion to continue. I say “timely” this time because he did file a motion to continue – two days after the hearing he failed to attend. The court denied the motion, obviously, and affirmed the bench warrant and the new $500.00 bond it had set at the hearing the lawyer missed.

The judge described on the record the history of incompetence from my client’s other lawyers, noting that the third one has yet to show up a single time on her behalf. The judge should have been able to figure out almost everything needed to make a fair, humane decision from the case summary in front of her, yet she told my client she would have to either post the bond or go to jail.

My blood was boiling. On 5/2, her other had lawyer told me they were just waiting on a date from the court. In reality, she had a bench warrant. On 5/8, I couldn’t get through to him, and I didn’t have any luck on 5/13 either. On 5/14, he told me they were still waiting for a date, completely clueless about the fact he had failed to appear and gotten his client a bench warrant. It was clear that none of this was my client’s fault. She shouldn’t have gotten the warrant in the first place. She shouldn’t be forced to pay the bond. I tried explaining everything to the judge, hoping she would see what was really happening and fix things.

I can’t imagine how my client feels. She spent a huge amount of money on a law firm that markets like crazy, and they didn’t keep her updated or return her calls. When they got her a warrant by missing court, she ended up going from release on her own recognizance to having a $500.00 bond that she actually had to post. Again keeping her completely in the dark, they missed another hearing and the court forfeited that bond she never should’ve had in the first place. My client had no clue about any of this. My experience made me believe that. Now she was supposed to go to jail.

The judge wouldn’t listen to me. She refused to consider anything I said because I was not the attorney of record. When my client tried to plead with her, she wouldn’t listen because my client was represented by counsel. Infuriated, I rushed to fill out a notice of appearance form and handed it to the judge. She wouldn’t accept it because she felt the proper pleading would be a motion for substitution of counsel, which she said would require a signature from my client’s other lawyer. I don’t think I’ve ever been so frustrated in my life. I kept thinking how I must have been explaining something wrong. Can’t the judge see what’s happening? Why should my client be the one to pay for someone else’s mistakes?

The worst part was that the judge understood everything but did nothing. Looking as if she was going to do something compassionate, she instead told my client how she was sorry then claimed there was nothing she could do. My client could post the bond or go to jail. There were no other options, according to the judge.

I wanted to bang on the table and scream because there was something the judge could’ve done. She could’ve made things right. She could’ve quashed the warrant and released my client on her promise to appear. She could’ve undone the unfair bond forfeiture. She could’ve ordered my client’s other lawyer to come to court and show cause why he shouldn’t be held in contempt for his actions. All it would’ve taken for her to right every single wrong was a few words. Say what should happen. Order what should be ordered. Hell, bang the gavel for dramatic effect. It’s easy. It would’ve cost her nothing and taken no more time than it took to send my client away, yet the judge stuck with her decision that my client must choose between jail or posting bond. Before adjourning, she suggested my client contact the bar association about her other lawyer.

My client was hysterical. She was crying her eyes out, knowing she didn’t have the money. She worked three jobs and was trying to save up money to finish college. Being jailed would cause her to lose her jobs. The judge knew all of that from the trial before, but she apparently didn’t care. My client also had family from out of town staying with her. Where would they go? She frantically called her grandmother, her only hope of getting the money she needed. She broke down again when her grandmother said she wouldn’t have the money until Friday.

I’ve never seen someone more defeated in my life. I’ve never been angrier. I still don’t know who I think is worse, the other lawyer or the judge. I couldn’t get over the fact that a human being is going to be stuck in a cage and lose her job because she is indigent and made a bad choice regarding counsel, and nobody cared. What is wrong with the world? How can someone do that to another person? How can someone just let that happen?

I am used to being the only thing standing between my clients and a jail cell. I am used to fighting in court for the right result, doing whatever I can to avoid the imprisonment of the people I am there to protect. This time, I had to fight for the opportunity to fight, and I lost. I never really had a chance. My client never really had a chance. There wasn’t going to be any justice in court; no fairness or mercy or even a tiny little shred of human decency.

Seeing no other options and having made up my mind that I would not let something awful happen to someone who did absolutely nothing to deserve it, I posted the bond. Odds are it’s not something I’ll ever do again. It’s also something that’s barred by ER 1.8 in almost every other conceivable situation. If the case I was handling hadn’t been fully resolved, I wouldn’t have done it. If it wasn’t so clearly not her fault, I wouldn’t have done it. The fact she returned my calls and kept in touch as reliably as anyone I’ve ever represented and more importantly the judge’s insistence that I would not be allowed to represent my client no matter how hard I tried played a huge role. Now, I can no longer ethically represent her at all. After charging less than half what I normally would, which is a fraction of what she paid her other lawyer, I’m $500.00 down. It’s a rare day that I try a case and walk out of court having spent money rather than earned money. Like I said, yesterday wasn’t such a great day for me.

As I sit here today, I can’t help but feel anger toward her other lawyers. Do I submit a bar complaint? Do I name them and the firm in this post? I can’t help but wonder about the judge too. How could she be so nonchalant about letting someone go to jail for lawyers’ mistakes?

Thinking about it, the judge’s suggestion that my client file a bar complaint really was fitting. Rather than make things right, she left them wrong but suggested punishing the person responsible. It really sums up the system and the ethos of most people perfectly because, if you get right down to it, courts simply aren’t in the business of helping people. At best, they hurt other people and call it helping. Hurt my client because her lawyer screwed up. Hurt the lawyer for screwing up. Sure, it would be easy to fix things, but that just involves a few magic words. Who would they get to punish? Who’d get hurt?

For me, the only good thing that came from yesterday was a renewed sense of the importance of competent defense counsel. Being a criminal defendant is bad enough. The wrong lawyer can make it far worse. It’s an important lesson, and I’ve rarely seen a situation highlight it more dramatically. It just sucks I had to pay for it.

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7 Responses to "Picking the Wrong Lawyer"

  1. […] brings to mind my experience filing a bar complaint after a client got screwed by a lawyer at another firm. My suspicion was that the lawyer of record didn’t actually know what the hell was happening. […]

  2. Bill Poser says:

    It sounds like the other firm owes her the $500 for the bond. She should sue them in small claims court. With their record, they won’t show up to defend and she’ll win by default.

  3. Justin says:

    I take my hat off to you.

  4. Andrew B says:

    I certainly do hope you are filing the bar complaint (indeed, under ER 8.3, I think you HAVE TO). While the state bar is by no means perfect, the reason this kind of thing goes on as long as it does is that the complaints aren’t made.

    If this firm is who I think it is, they have a history with the bar already. A complaint may be the best thing you could do for future clients of this firm.

    And kudos for taking that money out of your pocket!

  5. Casey says:

    You’re a good man MB. File that complaint so they don’t do this to anyone else.

  6. Keith Lee says:

    Wow. I simultaneously have enormous respect for the work CDLs perform and yet don’t envy them that they have to do it. That sounds like a shit sandwich and I would have been furious.

    Find out who the best legal malpractice lawyer in Tempe is and give their number to your client.

    1. Another awesome part about criminal defense law – you generally can’t sue your lawyer for malpractice. You can only say “court, you should let me out of jail because my lawyer was so bad that I didn’t have adequate representation under the Sixth Amendment.” Brace yourself for this one, but the bar is so high that normally the court says “Nah, it was bad…. but not bad enough to let you out of jail. Sorry.”

      CDLs have a rough job. I couldn’t do it.

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