Most people (fortunately) don’t have a regular need to work with an attorney. As a result, it can be unclear what exactly a lawyer can do, and what a lawyer cannot do while representing a client.
First, let’s cover some of the things an attorney can do for you.
- An attorney can be your advocate. An attorney can negotiate on your behalf with the prosecution. At a trial, an attorney can question the prosecution’s witnesses, and ask you specific questions to present your side of the case. An attorney can argue your case for you at an oral argument.
- An attorney can often appear for you at non-trial court appearances like pretrial conferences.
- An attorney can file paperwork on your behalf.
- An attorney can enter into agreements with the prosecution on your behalf (after you have approved the agreement).
- An attorney can advise you on a course of action based on the attorney’s knowledge and experience. While you might only encounter your particular problem once in your life, your lawyer may have encountered a similar problem hundreds of times.
- An attorney can request that the prosecution disclose evidence that may help with your defense.
- An attorney can interview police officers for you.
- In a civil traffic case, an attorney can do anything that the defendant could do. The rules in civil traffic cases are very relaxed compared to other types of cases. For example, the rules of evidence do not apply in civil traffic cases.
What an attorney CANNOT do for you:
- An attorney cannot lie for you.
- An attorney cannot knowingly let you lie.
- An attorney cannot bribe the prosecution.
- An attorney cannot bribe a judge.
- An attorney cannot meet in secret with a judge.
- An attorney cannot accept a settlement offer without your consent.
- An attorney cannot delay a matter simply to delay resolution of the case.
- An attorney cannot guarantee a particular result.
A word about attorney fees and case outcomes.
Sometimes, when a defendant hires a lawyer to help them through a criminal matter, the facts are just not in the defendant’s favor. This can result in the prosecution being unwilling to negotiate with the defendant and his lawyer. Some defendants believe that if they offer their lawyer more money – money above and beyond what was agreed to at the start of the representation – that the lawyer will finally get to work and suddenly produce the desired outcome. This is not the case. Lawyers always want to get the best outcome possible. We really do want to help our clients. We do not withhold positive outcomes in an effort to extort money from our clients.
Similarly, an attorney cannot take a criminal case on a contingency basis. In other words, the attorney cannot charge a fee that is dependent on the outcome in a criminal case. You cannot agree to pay your attorney $1,000 if you lose and $5,000 if you win. Such an arrangement would be an ethical violation for the attorney.
A lawyer cannot “surprise” the prosecution at trial.
We’ve all seen a movie like My Cousin Vinnie or a show like Matlock where the attorney shows up for trial with a secret weapon. The attorney sets up his witness and at just the right moment, the attorney introduces the secret piece of evidence that wins the case. This doesn’t happen in real life. In real life, the procedural rules that govern court cases require that the parties provide to the opposing party any piece of information they want to use at trial. If a party fails to make such disclosures prior to trial, they will be precluded from using that evidence at trial. There should be no surprises at trial.
A lawyer cannot guarantee a a particular outcome.
We get this question in various forms including:
- What are the odds of winning?
- What do you think will happen?
- Is the criminal charge going to get dismissed?
Such questions are difficult or impossible to answer. Yes, an attorney may have an idea of what a likely outcome is based on that attorney’s experience, but that is no guarantee. Each case has different facts and involves different people. There are many variables that can impact the outcome. Some of these variables are not predictable. Lawyers are ethically prohibited by the Arizona Rules of Professional Conduct from guaranteeing outcomes. A lawyer cannot even makes statements that might be interpreted as promising a particular outcome.
While we can share general information of our past successes, it is important to note that past success does not mean we will be successful in a future case. All attorneys are similarly situated, so if you come across an attorney who promises an outcome, run away. Not only is that attorney lying, he or she is violating the rules of ethics as they apply to attorneys.
We also encounter the situation where the defendant, upon not winning at a trial, is upset with us that we did not achieve the desired outcome. See above. We all want to win, but we cannot make a judge rule in a particular manner. Neither can we alter the past and change the facts of a case. We do everything we can to achieve the desired outcome, but sometimes that is just not possible.