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Legal Representation of the Professional:
Challenges and Responsibilities

By E. Marcus Davis

Representation of the professional or "white collar" business person in a criminal case can be one of the most rewarding advocacy experiences in the career of a trial lawyer. The responsibilities are immense, because the client faces not only the loss of freedom, but also the loss of the ability to earn a livelihood. Judges of the appellate bench have articulated these immense responsibilities:

"While every criminal conviction is important to the defendant there is a special poignancy and a corresponding responsibility on reviewing judges when, as here, the defendants have been men of blameless lives and respected members of a learned profession."

Thus, the defense lawyer should only undertake representation of such a client after careful consideration of the expertise, resources, and commitment required.

Fee Setting

There are various ethical considerations that govern fee setting. Many professionals and business people prefer paying an hourly fee. This is often not the case in other types of criminal cases. The criminal lawyer should consider such an arrangement, but should ensure that provisions are made for adequate security. Once a lawyer becomes counsel of record, it may become impossible to withdraw from the case. If you prefer to set a lump sum fee, you should consider carefully the work required and not impulsively set a fee that initially might seem adequate, but which might prove insufficient.

One key factor to be considered is the responsibility involved. The professional or business client has a tremendous investment in his or her career, and the career often has tremendous future monetary value. You should set a fee high enough to enable you to do everything in your power to preserve your client's career and freedom.

Dealing With Additional Stress

The trial lawyer who undertakes representation of a fellow professional or a "white collar" defendant should be aware of the enhanced stress inherent in the representation. Your client may be a professional peer with whom a lawyer could readily empathize. You may come to identify with the client to such an extent that you acutely feel the pain of losing such a case. On the other hand, the feelings of professional accomplishment and fulfillment in victory are magnified as in no other case.

By recognizing the potential for stress in such representation, you can consciously decide how to deal with it. Some lawyers choose to get close to the client so that they are motivated to peak performance. The risk is that a loss may be emotionally devastating, and more importantly, you may become too involved to maintain the detachment and calm that is indispensable to the proper handling of the case. Other lawyers purposefully insulate themselves from the client so that stress does not affect their performance or their emotional well-being.

Controlling the Client

The professional or business person is often a leader, may be articulate, and usually has an unrealistic view of the fairness of the prosecutorial system. These factors often result in counterproductive conduct during the preparation and trial of a case. As the defense lawyer, you must establish control of the client from the outset. If you doubt your own judgment and allow your will to be overborne by that of your client, you are not competent to handle the case.

Your clientís input into the handling of the case should not be foreclosed, however. Often able to provide valuable insights into a case involving his or her profession, the defendantís input and participation should be encouraged. Keep your client abreast with correspondence and pleadings. If you consistently inform the defendant of activities in the case, he or she will realize that you are maintaining diligent representation and will retain confidence in you.

Concurrent Proceedings

The opportunity for discovery in criminal proceedings is severely limited when compared to the liberal discovery rules of federal civil procedure, state court practice, administrative and licensing revocation procedures.

Rule 26 of the Federal Rules of Civil Procedure provides for the discovery of "any matter not privileged which is relevant to the subject matter involved in the pending action." The information sought does not even have to be admissible at trial, but need only be reasonably calculated to lead to the discovery of admissible evidence. In criminal cases the prosecutor's discovery efforts are limited by the defendant's Fourth and Fifth Amendment rights. Rule 16 of the Federal Rules of Criminal Procedure sets out the narrow discovery available to criminal defendants.

The governmentís reciprocal discovery of a defendantís case is governed by Rule l6 (b). Subsections (b) (1) (a) (A) and (B) preclude government discovery except after the defendant has requested discovery of the governmentís materials, and the government has complied. The subsections allow the government to discover "books, papers, documents, photographs, tangible objects," or "reports of physical or mental examinations and of scientific tests or experiments made in connection with the particular case" that the defense has in its control and intends to introduce at trial. Subsection (b) (2) provides the same kind of work product immunity to the defendant that is provided the government in subsection (a) (2). Rule l6 (e) concludes the discovery rules by adopting Rule 12.1 to regulate discovery of alibi witnesses.

Thus, the government is quite limited in its discovery efforts by the Federal Rules of Criminal Procedure. Concurrent tax, civil, administrative, or licensing procedures, however, can strip the defendant of this shield in various ways.

The danger of prosecution following an Internal Revenue Service (IRS) audit is especially acute. Permission to the IRS to examine oneís private books and papers upon a routine or regular audit has been held a waiver of constitutional rights in the absence of misrepresentation even when the Internal Revenue agent later discovers fraud and refers the matter to criminal investigation.

In most states, professions such as accountants, physicians, nurses, lawyers, dentists, architects, psychologists, marriage counselors, funeral directors, and the like are regulated by legislatively created administrative boards and agencies. The boards and agencies can terminate the professionalís livelihood by suspending or revoking his or her license. Because of the wide-ranging discovery available to the boards, your client may be an easy target for subsequent criminal prosecution.

There are other instances in which a client will be subjected to simultaneous civil action and criminal prosecution. He or she may, for example, be a defendant in concurrent civil and criminal antitrust actions; a Federal Trade Commission civil action and a criminal mail fraud prosecution; or a Securities and Exchange Commission investigation, a civil suit for fraud, and later, a prosecution for violation of the Securities Exchange Act. These multi-pronged attacks on your client are fraught with danger.

Ironically, these potentially harmful concurrent actions often provide defense counsel with an invaluable opportunity to obtain discovery. In some states, licensing actions provide defense counsel with access to the investigative file, which will not be available to defense counsel in a subsequent criminal case. The government's witnesses may be deposed in the context of a concurrent civil action or interrogatories may be propounded to them, thus locking them into a sworn statement.

As defense attorney you must conduct a difficult balancing act. Attempt to gain discovery through concurrent proceedings, but prevent the government from circumventing your client's privilege against self-incrimination.

lf you feel that the risk of concurrent proceedings outweighs the advantages, do not hesitate to seek a stay, a protective order pursuant to Federal Rules of Civil Procedure Rule 30(b), or whatever other remedy you deem appropriate. Your clientís rights, which are in jeopardy, are of constitutional magnitude, and the courts are likely to grant some relief.

Stays and protective orders are not automatically available, however, and some courts will refuse to grant any relief. Others will grant only limited relief. Some federal courts have concluded that the threat to the defendantís Fifth Amendment right requires a complete stay of the civil proceedings or civil discovery during the pendency of the criminal case.

Alternatively, it could be argued in the civil action that a Rule 26(a) protective order is appropriate. Still other courts have fashioned an intermediate approach to handling this problem.

Continue Reading >>Insulating Oneself From Ongoing Potentially Criminal Activities


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