How to Select the Best Federal Criminal Defense Attorney

Selecting the right federal criminal defense lawyer requires preparation, research, and patience which is a tall ask when a client is faced with the myriad of life-altering decisions. Trust Google and you’ll only find the person who is the best at advertising. Trusting a friend might fare better, but how many of your friends have a network of talented federal criminal attorneys on speed dial? Simply searching for the cheapest federal criminal defense lawyer near you may be met with disastrous consequences. A federal defendant’s best bet is to search for a federal criminal defense attorney who has achieved tangible, discoverable results for his or her clients – results which speak for themselves. Unfortunately for the defendant, federal criminal defense lawyers who have achieved trial acquittals is a rarity.

 Instead of discussing the specific qualities that a good defense counsel possesses it is perhaps better to discuss the most common mistakes of inadequate criminal defense counsel so that they can be spotted and removed from the case quickly.

Common Signs of an Inadequate Federal Criminal Defense Lawyer

Common warning signs of inadequate counsel include the following:

  Inadequate investigation or none at all

Trusting the Government’s recitation of the facts

Failure to advocate for fear of “pissing off the judge” or prosecutor

Lack of experience in the specific subject matter (i.e. healthcare, tax, securities)

Failure to quickly gather relevant experts

Insufficient trial experience or none at all

Flat fee and plea – accepting a flat fee only to coerce a client to plead guilty later

Most Common Error in Selecting a Federal Criminal Defense Attorney

By far the most common mistake made by counsel seeking federal cases is the lack of experience with the specific subject matter of the case. For instance, my primary practice is the defense of complex white collar federal criminal indictments and investigations. My sub-specialty is in the defense of physicians accused of drug trafficking and healthcare fraud. I have handled hundreds of cases in this arena and have taken many to trial. I am a published writer on subjects in this area, including journals related to this area of practice. I have obtained a Master of Laws [A1] degree with a specialization in healthcare law to further refine my knowledge of healthcare compliance, healthcare fraud statutes, and Medicare reimbursement. I am certainly biased in this statement, so consider the source -- but if you are charged with healthcare fraud, I’m a good choice. If you’re charged with tax evasion, I’m not. I do not know the complexities of tax law and I do not have the experience to match a prosecutor who almost exclusively deals with tax cases. I would refuse such a case but many defense attorneys would instead choose to wade into unfamiliar waters, often collecting the same fee that appropriate counsel would charge.

It does not take much to put up a Google ad or a website but it takes a lot to be able to handle the complexity of federal white-collar litigation. As DUI attorneys and general practitioners seek the en masse availability of internet marketing to expand their practice in more profitable areas, they often forget one thing – experience. Being a successful litigator takes years of study, experience, analysis and developing a solid defense strategy that can foresee all the possible twists and turns a case could take. Even those with experience sometimes get it wrong.

One valuable resource for those seeking federal counsel is Pacer[1]. Pacer is a federal website that collects all documents filed in a federal case. By searching Pacer for the name of your prospective counsel you will be able to see how many cases they have handled and the subject matter of those cases.

Tips for Choosing the Right Federal Criminal Defense Attorney

1. Beware of Attorneys Too Cozy With the Prosecutor

After doing your research, take the following tips into consideration when establishing a working relationship with counsel:

First, beware of those peddling a relationship with the judge or the prosecutor. Many clients think that knowledge of the prosecution team or a relationship with the judge is important. It's not and, in fact, it can be a hinderance to a defense attorney. Think for a moment of a small-town attorney handling a federal case before a prosecutor with whom he golfs and a judge that he sees at social functions regularly; a judge that he relies on to send indigent clients. Will that attorney take an unpopular position? Will he advocate solely for his client’s interest or will he take the agreeable approach and pull the parties towards communal resolution? My experience has taught me that local counsel who have too close a relationship with the prosecutor or judge generally prefer only to take positions when success is assured. In an environment where taking creative and sometimes unpopular positions is often necessary, a counsel beholden to the pressures of operating in the same social circle as the judge or prosecutor may inhibit the strategic decisions necessary to secure acquittal.

Now let's think about the benefit conferred by the government for such a relationship. Is the prosecutor less likely to charge a case or more likely to resolve a case more favorably because he or she knows the defense attorney? Likely not -- the ethical prosecutor would not do so because it’s an unfair tax on everyone else who didn’t hire the local attorney known for hobnobbing with the prosecution.  Their inconsistent positions would be seen by their supervisor in the United States Attorney’s Office. Extending a favor to a defense counsel that is a friend is unethical and anyone seeking such a favor will not last long. An attorney who enjoys an arm’s length relationship the judge and prosecutor is far better – anyone trading their relationships with the local officials is likely trying to make up for their lack of litigation ability in the hopes that an uninformed client will hand over their retainer, fueled by promises of favors which never materialize.

2. Seek an Attorney With Trial Experience and Experience Getting Acquittals

Second, seek an attorney with actual federal trial experience and at least some experience achieving an acquittal. Many outside the legal field don’t know this but a lot of attorneys fear taking cases to trial, which is understandable as trial is not easy. Trial work is likely one of the most grueling experiences an attorney can professionally face: Sleep deprivation, appetite-killing stress, weekends and free time cease to exist, and long days spent in the courtroom only to settle in for the night inside a hotel room or home office, isolated from your family in order to prepare for the next day. Many criminal defense attorneys have not had a trial in years and actively avoid trials by getting their clients to plead guilty using late-in-the-game tactics to scare the client into a plea.

Convincing a client to plead guilty to avoid a trial may sound unethical and dishonest because it is: Most defense attorneys would never do such a thing, and most are ethical freedom fighters who care more about their client than the money, but the motivation of resolving a case and avoiding a demanding trial is sometimes too much for some attorneys to bear. A federal defendant needs an attorney who is no stranger to the courtroom, with trial experience that surrounds the specific nature of the indictment. A good federal criminal defense must have a passion for the law and a case history that leaves no stone unturned in the search for justice.

3. Avoid the Flat Fee

Third, avoid the flat fee. It’s simple economics. There are great attorneys who choose to charge “flat fees” as opposed to regular hourly billing on a case and there are good reasons for this: Attorneys know that as litigation proceeds, a client may be uncollectible which forces attorneys to stay in a case without payment. Other attorneys know that a client must martial resources from friends or family members to pay for the significant costs of a defense. No matter the reason, flat fees provide a powerful motivation by most attorneys to perform less work and resolve the case with a plea early. Take too many flat fees and an attorney’s trial obligations are so demanding that they would go bankrupt if every case went to trial -- unless each flat fee were for an amount that would sustain them through trial.

Imagine buying a modest lottery ticket every year promising an amount of money that would give you and your family a life of relative comfort and stability, and then imagine that as long as you control the circumstances by which your client’s case concludes, you would be guaranteed 97% of the winnings – every single year. When you consider such a low-risk, moderate-reward career trajectory, it’s not hard to see why attorneys might push for 97% of their clientele to simply plead to avoid an expensive fight; clients are none the wiser and flat-fee attorneys get to have their weekends with the family.

If an attorney takes a $10,000 flat fee on 100 criminal cases and only three proceed to trial, the profit from the flat fee cases that plead will insulate the losses from the three cases that proceed to trial. There’s also the crazy chance that an attorney might actually win one of those three cases, taking home some glory and credibility. But, do you really want an attorney who needs 97% of his cases to result in a plea even if it looks like a good deal because it’s a relatively low flat fee? Seems kind of backwards, doesn’t it?

4. Ensure Good Communication

Fourth, lack of communication is a telltale sign of an overworked and ineffective attorney. It’s not hard to get work as a criminal defense attorney because it’s not hard to put up a Google ad, properly fund it, and make an attractive website that pleases prospective clients. It’s much harder to keep up with the demands of a busy law practice and properly communicate with a client who is facing one of the most trying times of their life. Attorneys who exhibit poor communication skills and are not available to their client are likely backlogged, overworked, and are letting the case work them – not the other way around. Criminal defense is not a job where we can play to the deadline and cram for trial like it’s a middle school algebra exam. It takes thought, preparation, client communication, and strategy to win a case. If your attorney can’t respond to a call or an email in a timely fashion, they’re likely not making the strategic decisions necessary to move your case forward. This principle is not without limits, as many clients need a lot of handholding due to the sheer terror they face. Terror may manifest with a lot of unnecessary client-attorney communication which does not further the case. Attorneys often communicate only when necessary to achieve their defense objectives and twenty text messages a day asking, “What are my chances of conviction?” is more frustrating than pertinent, much like the fourth iteration of “Are we there yet?” from kids on a road trip. Effective communication is absolutely necessary and both client and attorney have a duty to ensure that communicating is moving the ball forward in the defense.

5. Promises are a Telltale Warning Sign

Fifth, beware of big promises. In the federal criminal defense arena, nothing is certain and promises cannot be made. The practice of law -- more so criminal law -- cannot be reduced to scientific certainty and reliance on past cases to predict future results is a foolish idea. Despite this, many clients seek promises and many attorneys give them: Plead and you won’t do jail time. I know this prosecutor and we can get a good deal. You have no chance at trial. You’re sure to win acquittal if you hire me -- these are all statements that should sound alarm bells during your search for counsel. The promise of a particular outcome is simply unethical. At every stage of the defense the client retains the choice [A2] based on the particular facts of his or her case and aided by the advice of counsel. Improper promises disrupt the free choice of a client and place the attorney’s promises at the forefront of the mind of a defendant at critical stages in their defense.

Finally, beware of the attorney who takes on too much. This point is better left to an anecdote about one of most disappointing attorney performances I've ever witnessed.

6. Use Your Instincts

Clients are better served by using their instincts when interviewing or selecting an attorney to represent them. Is the attorney kind? professional? approachable? Does the attorney maintain client reviews that show satisfaction with their services? How long has the attorney been practicing in the field and do they have a track record of federal court appearances that can be traced on accessible programs like Pacer? Is their writing clear, concise, and detailed? These are all good questions to ask prior to making such a vital decision. If a Defendant is not comfortable with their representation or the ability of their counsel, they have absolute freedom to change counsel and request enough time to do so. A substitution of counsel is generally permissible in a federal case as long as the judge does not believe, as Judge Pepper believed, that the substitution is a tactic to delay trial.

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