Keeping Your Client Out of Jail (the Second Time)

Getting one's client out of jail on bond or obtaining a suspended sentence is certainly a good result. However, this does not end the lawyer's obligation to assist the client in staying out of further trouble. For many clients the shock of incarceration sometimes lasts only a few weeks. Clients may lapse back into the "bad behavior" that caused them to be arrested in the first place and they may be arrested and incarcerated again. The difficulty of the case is now compounded.

I know from experience that our clients expect us to walk on water, yet they routinely drain the pool. Keeping a firm hand on the client may keep him or her from pulling the plug on the case.

While there is no direct ethical rule governing attorney anticipation of prospective client difficulties, the concept represents best-practice. It is becoming increasingly necessary in civil cases as well.

The lawyer should first address the client's social situation to ascertain if the client is at risk for future "bad behavior." I usually try to ascertain if the client has a substance abuse problem that requires immediate treatment goals. This serves double duty: the client will benefit from this at a possible sentencing hearing but will also avoid a future arrest.

A practical way to approach the subject of a future arrest is in the representation contract. I point out that a revocation of bail " because of some collateral allegation " is a separate event and will require a separate fee. Certainly, a violation of probation or parole is a new case. This should be expressly stated in the contract because many judges have a policy which compels the lawyer to represent the client on the "old case" if there is some new event that triggers a violation of probation. Even though the lawyer may be obligated to represent the client in that situation, at least the attorney can charge a separate fee for that activity since it is in the representation contract.

The attorney should impress on the client the consequences of a new arrest while on bond or on probation. When a defendant is on bail and is charged with a new offense, the "judge shall set the defendant's bail on each new offense in an amount not less than twice that which is customarily set for the offense charged."[1] The judge may enhance a sentence if the defendant was on bail at the time of the commission of any new offense.[2]

A probation violation may result in a termination of the original suspended sentence but can also result in an increased penalty for a second offense committed while on probation.[3] Moreover, a sentence for a crime committed while on probation may run consecutively to the original sentence.[4] Similarly, a parole violation based on a new conviction can result in effective consecutive time since the Parole Board may require the defendant to serve "the remainder of the sentence originally imposed."[5]

A court has vast discretion in imposing reasonable conditions for bail or other pretrial release.[6] Courts routinely impose a requirement of random drug screens either as an express or at least an implied condition of release. Lawyers fail in their obligation to their clients by neglecting to remind the client that even one dirty urine can result in a revocation of bail. Some counties are notorious for testing a significant portion of the defendants when they show up on the first or second appearance. Even the best planned sentencing hearing will go awry when the client has been smoking a joint the night before over the stress of the case.

Stress, of course, is the primary reason why clients engage in all sorts of aberrant behavior while their cases are pending. A frank discussion about this very subject will certainly promote a better relationship between the attorney and the client since the client will understand that the attorney cares about the client as well as "the case."

There are some clients who assume that once the lawyer is paid that the case will sort of "blow over" and that they can continue on with their behavior as if nothing has happened. I have gone so far as to require some clients to nail a copy of the indictment on the wall over their bed so they see it each morning when they wake up and each evening as they go to sleep. Such folks are candidates for serving their sentences on the installment plan unless the attorney takes such drastic measures.
If the client can afford to do so, it may be prudent to engage a private social worker to monitor the client. Frequently, such professionals can spot problems before they mushroom into a new arrest.

Some clients are so disabled by the trauma of the charge that they forget to come to court on time or fail to meaningfully cooperate with the attorney. These individuals require significant "hand holding" so that the case does not become more complicated by subsequent bad behavior. A mental health professional should be considered as an additional member of the defense team.

It is all-important to warn the client to shut down his or her Facebook or other computer social networking activity. Police and probation officers routinely monitor these sites. Why advertise that you are breaking probation by telling the world about purchasing that new, now-illegal pistol? Tell young folks to rid themselves of that fake identification card.

Clients do not understand that they need to keep their car in good repair and fix that broken tail-light. Why be "rolling probable cause" and attract the police like a magnet? There is no telling what the officers may find when they search that car a second time.

Some lawyers feel post-sentencing attention is beyond the scope of representation. I disagree. Clients frequently forget to meet with their probation officer. Separate reminder letters may be appropriate. The client is still the client until the sentence has been completed.

It is well to remember that something has happened to the client to cause him or her to be charged with some criminal offense in the first place. Just because the client gets arrested does not change the underlying problems. We should not assume that the client will be "cured" by a few hours in handcuffs.

We all want a good result for the client. That is our duty. Assuring that the good result is permanent should be part of the lawyer's obligation as well. It is difficult enough to deal with the current criminal allegation without having to worry about some new anti-social episode. Yet, if we ignore the prospect, we are not doing everything we should to represent our clients.

Notes

  1. Tenn. Code Ann.  § 40-11-148. Note also that if an individual is convicted of a felony that was committed while the defendant was released on bail the sentences must run consecutively as a matter of law if the defendant is convicted of both offenses. See Tenn Rul. Crim. Pro. 32 (c)(3)(C).
  2. Tenn. Code Ann.  § 40-35-114(13)(a).
  3. Tenn. Code Ann.  § 40-35-114(13)(g).
  4. Tenn. Code Ann.  § 40-35-115(b)(6).
  5. Tenn. Code Ann.  § 40-35-504(e).
  6. Tenn. Code Ann.  § 40-11-116.

David Raybin DAVID RAYBIN is a member of the Nashville firm of Hollins, Raybin & Weissman. Raybin is the author of Tennessee Criminal Practice and Procedure (West 1984). He may be reachedat draybin@hollinslegal.com