Houston criminal defense lawyer Mark Bennett has been writing recently about lawyers who promise or guarantee good or great (or impossible?) results in criminal cases.

His example was one where the unethical lawyer promised a jail release in a federal drug case where the potential sentence could be more than 10 years (triggering presumptions of flight risk, danger to community and no bond). Mark’s point was not that he mourned the loss of a client but that:

This case illustrates why it’s not "stealing clients" but "stealing from clients" — the client was not an asset to me, but a liability. I don’t mind losing the client, but that doesn’t make the lawyer’s lies any less repugnant.

I wrote in a comment to his post:

The other half of this equation is that the client wants to believe the lawyer that tells him "I can get you out".

I think all of us have heard from clients over the years all the variations of unreasonable promises made and outright lies told to clients; perhaps I should add, especially to those in jail.

I’ve always wondered what those conversations are like, you know the ones… the ‘coming clean’ conversations where the lawyer ‘explains’ that everything he said up until now was somewhere between 95 and 100% wrong.

I understand folks in desperate situations wanting to believe the person that comes to tell them the good news, even if that good news can easily be rephrased as ‘I want you to pay me money’. And people in jail are indeed desperate, and have less access to information than those out of jail. If their choice is between the lawyer who says he will get them out, and the lawyer that says it will be difficult if not impossible, then they are likely to choose the first. 

But we see this situation (the lawyer who overpromises/lies) in other familiar situations as well: most commonly, the “I will get your case dismissed’ lawyer. The lawyer that says that at the initial client meeting. Without reading the police report. Or talking to the prosecutor. Just… “I will get your case dismissed”.

Here’s what I don’t understand about that. I meet with people who have been arrested in Austin, Texas on a regular basis. Some of them hire me, some don’t. My goals in the initial office visit include

  • listen to what the client has to say happened
  • explain the law
  • explain the range of possibilities
  • narrow that down to the reasonable range of possibilities
  • give my client ‘homework’; i.e., things they can do that will help me help them get the best possible results

When I narrow that range of outcomes from the possible (outright dismissal to maximum jail time) to the likely range of outcomes (dismissal if we do X, Y and Z to probation, or whatever the case may be) I always say:

“It’s unethical for me to promise a particular result in an individual case, but based on my experience…”

Of course, the potential client knows that it’s not possible for me to look into that crystal ball and tell them exactly how the case is going to turn out, and on occasion, they chime in something like, “I wouldn’t believe someone who told me they knew exactly how it would turn out…” or something similar.

That’s because I’m stating the obvious: I don’t have that crystal ball and I can’t guarantee or promise results. Why then would you believe a lawyer that does?