Can I Change Lawyers in a Criminal Case?

January 11, 2021

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

You can change lawyers in a criminal case but it’s subject to the Judge’s approval.

Most judges readily agree unless it will cause a significant and/or unnecessary delay in the proceedings.  I’ve never seen a judge stop or prevent a substitution early in the proceedings well before the case is set for trial – or even several months before a trial setting.

Judges get annoyed, though, when someone wants to substitute on the eve of trial or with just weeks before.  Judge also get irked when someone tries to substitute lawyers multiple times which the court often sees as a delay tactic.

A Client is Entitled to the Lawyer of Their Choice

The Sixth Amendment to the US Constitution guarantees right to counsel.  In retained or hired cases, it is generally accepted and understood the person gets counsel of their own choosing.  There are limitations, though.  Counsel must be a member of the bar, counsel can refuse representation, and the court can step in if there are other extenuating circumstances (such as if the court detects a serious conflict of interest or the court feels the representation is inadequate).

Why Does the Judge Need to Approve of a Change?

A judge is responsible for managing their cases and their docket and the integrity of the adversary legal system.  When a lawyer files a pleading or a letter of representation – the lawyer is legally and ethically binding themselves to representation in that case through the completion of the case.

A lawyer representing a party in case before a judge is known as an “officer of the court.”   A judge, then, can depend on the lawyer and require the lawyer to be present to represent their client when the Judge says so.  A judge can require a lawyer to handle a case even against that lawyer’s wishes if circumstances demand.

What Are Good Reasons to Change Lawyers?

This is a person-by-person choice.  I get calls all the time who are either upset or worried about their lawyer.  When I do visit with folks in this setting – I always do my best to see the situation from their lawyer’s point-of-view.  They are almost always in a better position to evaluate the case because they’re knee deep in the case and I’m not (yet).

The most common reasons I hear when folks come to me wanting to change from their previous lawyer are lack of communication, concern about qualifications or strategy, and general lack of confidence.  While I really will try to see the case from the viewpoint of the previous lawyer – I always want to make sure I’m not just telling the client what they want to hear.  If their previous lawyer has been doing a great job then I let the client know.  Even if I don’t get hired, I’ve helped the client have more faith in their lawyer.

Ultimately it is about the client’s comfort and confidence in counsel.  It is a bedrock of the lawyer-client relationship.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is recognized as a Texas Super Lawyer by Thomson Reuters.

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Failure of a Lawyer to Give Immigration Advice in a Criminal Case

January 9, 2021

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

jeremy@texasdefensefirm.com

Immigration is such a major topic in criminal defense the topic has been given it’s own name:  Crimmigration.

Criminal defense lawyers have a non-delegable duty to advise their clients about immigration consequences.  The point was made clear in the landmark US Supreme Court case Padilla vs. Kentucky, 559 US 356 (2010).  Padilla holds it is ineffective assistance of counsel for a lawyer handling a criminal case not to advise a client about the immigration consequences and dangers which come with the criminal case.  This is because erroneous advice – or not giving advice at all – can lead to a client’s deportation, removal or ineligibility to renew immigration status.  It is not enough for a criminal defense lawyer to tell their client, “your immigration issue is not my problem – I’m just handling your criminal charges.”

I’ve blogged before on the complexity of immigration issues in the criminal context and you can read it here.

Being Aware of Immigration Tripwires in Criminal Cases

Immigration law is it’s own completely different practice of law from criminal law.  I explain to clients that me giving immigration advice in many ways is like a foot doctor giving advice about your shoulders.  Nonetheless, Padilla and the cases which have followed require criminal lawyers to educate themselves in immigration law enough to effectively advise clients about what can and can’t happen because of things like guilty pleas, conditional dismissals, or specific sentences.

Some immigration rules require detailed analysis about facts and issues which are easy for a criminal lawyer to over-look.

For instance, immigration courts have different classifications for drug possession than Texas criminal courts.  The Texas criminal courts have their own scales for charging drug possession cases which don’t necessarily correlate to the federal court’s or immigration court standards.  Many Texas criminal lawyers may just skim the amount ultimately weighed just to make sure it comports with Texas law – but the lawyer must also beware the tripwire of the immigration consequences if applicable too.

Being Extremely Cautious in Decisions Which Affect Immigration

I tend to be extremely cautious when dealing with immigration issues and complications.  It’s because immigration has been and will probably always will be a white-hot legislative topics in the federal government.  Just because the law says pleading guilty offense x in 2021 is fine doesn’t mean the laws can’t change in 2026 and take a completely different view of what we did 5 years before.

What Happens When My Lawyer Gives Me Bad Immigration Advice?

It’s common for our office to get phone calls when someone has taken a plea deal of some sort and then they get detained, removed, or are not allowed to renew their citizenship status.  It’s often the first time the client had any inkling there would be a collateral immigration problem connected with their criminal case.

When a lawyer doesn’t give immigration advice either because it scares them or they just didn’t spot the issue at all – or if a lawyer gives bad immigration advice it can be “ineffective assistance of counsel.”  Ineffective assistance of counsel in an immigration setting means the lawyer didn’t give proper advice and as a result – the client’s decision was rendered “involuntary.”  An involuntary decision – usually to plead guilty or no contest – is nullified in the event there was ineffective assistance.

Ineffective assistance of counsel can be addressed through different legal mechanisms such as a “Motion for New Trial” or a “Writ of Habeas Corpus.”

Ask Your Lawyer About Immigration Consequences

If you have any questions in a criminal case setting about immigration consequences – ask your lawyer.  It’s your criminal defense lawyer’s job to properly advise you about immigration consequences.  Often times it may take a joint session between criminal and immigration lawyers working together to make sure the client fully understands.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is recognized as a Texas Super Lawyer by Thomson Reuters.

 

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Can Police Track Your Phone?

January 8, 2021

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

The short answer is yes – but there are ever increasing legal hurdles in law enforcement’s way.  The issue is highly complex, evolving and will continue to evolve as technology changes society.  No page-long blog will do the topic justice but I hope to give you at least a basic legal primer.

The 4th Amendment to the US Constitution is your right to be free from “unreasonable” searches and seizures from your government.  Tracking a person’s phone either in real-time or after the fact has been the subject of intense legal scrutiny for some time now.

Is Tracking Your Phone a Search Within the Meaning of the 4th Amendment?

Courts agree inspecting the contents of your phone, wiretapping a phone call, or affixing a GPS monitor to a persons vehicle are “searches” within the meaning of the 4th amendment.  It’s taken some time for courts establish these norms but they have all one by one been accepted.

Much of what constitutes a “search” hinges on what we consider our own “expectation of privacy.”  We all have a much higher expectation of privacy in our night stand drawer than in our bag we’re bringing on a plane.  So the courts have had to answer the question of where does the smart-phone and the information rank between the two extremes?

The answer is different today than it was in 2005 because of the advances in technology and because of our reliance on smart device technology… and because of both of those things we have different expectations of what is or isn’t private about our phones.

Courts now recognize the contents of our phones today contain work information, banking information, medical information, information about the books we read, the historical figures we admire, who we’re angry with in our family, where we’ve been, where we plan on going in three months or in an hour…  In short we have developed an intense dependency and sense of privacy about our phones and the courts know this to be true.

Is Tracking a Phone an “Unreasonable” Search?

Again – what is reasonable changes.  A “reasonable” search at an airport on September 12, 2001 might not have been considered as such on September 10, 2001.  Our more intense reliance and privacy with the phones make them harder and harder for police to justify tracking or searching.

But understand an “unreasonable” search becomes reasonable if law enforcement can legally and procedurally justify attaining whatever it is they’re looking for.  The legal question is just how much justification do they need and whether it requires attaining a warrant?

What Information Can Police Attain About Your Phone & How They Get It

I’m not a technology expert so I don’t know what and how the police can track.  I’m sure if they’re not tracking phones in real time already then at some point I’m sure there will be the capability for them to do that.  Probation departments and supervision departments can require either software or hardware downloads which allows them to track usage – but that’s not the same thing because in those instances the individual knows – and has often agreed – to being tracked.

Phone Dumps and Downloads

The law is more clear in this area – police need a warrant to get into your phone if you don’t consent to it being searched.  What they can get once they get in your phone is a technology question which I don’t have the qualifications to answer… but I’m sure this is an evolving cat and mouse game like everything else in the law/ technology realm.

Records

Police can and often do obtain records from data providers and other third parties such as apps from their private offices.  The mechanisms may vary from State to State but the providers may be able to voluntarily provide records to law enforcement based on the terms and conditions of the usage – or as is more often the case – law enforcement can subpoena the records.  In some instances the federal government requires third parties to report certain activity to the National Center for Missing and Exploited Children.

Also, third parties who may have records the police want such as Facebook or Twitter or some of your other tech giants can be extraordinarily difficult to deal with for both law enforcement and the defense due to nothing more than their sheer size, amount of data they mine, and amount of users they have.  They have legal compliance departments but even Court Orders have the ability to sit in someone’s pile or in-box for who knows how long.

Courts are moving in the direction of requiring warrants to accompany the requests but this is an intensely complex and evolving area of the law.  Many of the third-party companies host apps and aren’t in the United States.  This adds yet another layer of complexity.

Bottom Line

For the police or law enforcement to track your phone after the fact or in real time is currently and will be one of the great battle-lines in courtrooms for the 21st century going forward.  This question is truly the convergence and intersection between radically evolving civil liberties and radically evolving technological capabilities.

Stay tuned.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is recognized as a Texas Super Lawyer by Thomson Reuters.

 

 

 

 

 

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My Lawyer is Not Fighting For Me….

January 7, 2021

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Your lawyer is fighting for you.  At least I hope they are.

What Your Lawyers Job Is – and Isn’t

A lawyer has a duty to zealously advocate for their client.  A lawyer cannot, though, just go bananas for the sake of going bananas.  Lawyers have other duties which often compete with their duty to zealously advocate for their client.

Here is a relevant passage in the Preamble Texas Disciplinary Rules of Professional Conduct:

2. As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others. As intermediary between clients, a lawyer seeks to reconcile their divergent interests as an advisor and, to a limited extent, as a spokesperson for each client. A lawyer acts as evaluator by examining a client’s affairs and reporting about them to the client or to others.

Note zealous advocacy is sandwiched between other roles of the attorney.  The lawyer also has to give the client an informed understanding of their rights and obligations.  The lawyer must seek advantageous results consistent with the honest dealing with others.

Fighting for and advocating for a client is only a fraction of the lawyer’s job.  Much of the lawyers role is informing, educating, and advising clients.  Also, much of a lawyers job hinges on ethical obligations to judges and other lawyers… our system wouldn’t work if everyone got to go berserk.

A lawyer’s job isn’t to tell you everything you want to hear, either.  Many times folks will understandably want to shoot the messenger.

Giving Your Lawyer the Benefit of the Doubt

I’ve had many clients over the years who like seeing or thinking I’m being aggressive.  But not every situation calls for aggressiveness…. and just because the client thinks I’m not being assertive, zealous, or aggressive doesn’t mean I’m not either.

Often folks looking to switch lawyers will visit with me – and I always make an effort to try and see the situation their lawyer’s way.  That lawyer usually knows much more about the case than I do to that point and it’s arrogant of me to think otherwise.

When You Should Worry About Your Lawyer’s Efforts

First – you should be comfortable with direction of your representation.  If you can’t sleep at night worried sick about your lawyer and nothing they do or say helps then by all means find another lawyer whose representation you’re more at ease with.  Again, though, it’s not your lawyers job to tell you only news you like or that you want to hear.  It’s probably a worse mistake to shop, and shop, and shop for a lawyer until you find someone who magically agrees with everything you say.

Some lawyers can be intimidated by certain cases.  Is your lawyer constantly looking for reasons to back down?  When your lawyer does shy away from a difficult hearing, trial or other proceeding – do they have a detailed reason which makes sense?  In criminal cases – how often does your lawyer go to trial?  If it’s not on a regular basis then maybe that is a red flag.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is recognized as a Texas Super Lawyer by Thomson Reuters.

 

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Domestic Violence Charges – Blog 17:  Plea Bargaining in Family Assault Cases

December 29, 2020

By DFW Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Only 6% of state criminal cases go to jury trial.  That means 94% are disposed of some other way.  Those could be plea bargains or dismissals.  Some dismissals are by agreement where the defendant takes classes, performs community service and/or completes other tasks and is basically a plea bargain without actually resulting in a plea.

Courtroom lawyers love to talk-tough.  And I’m no exception because I eat nails for breakfast in the morning before dazzling every jury I see.  But what we don’t brag about much are our plea-bargains.  Plea bargaining doesn’t make wonderful fodder for lawyers web pages so you don’t hear lawyers talk about it much.  Again – 94% of cases don’t go to trial so even the lawyers who talk the meanest game in town plea bargain far more cases than they take to trial.  It’s just a fact.

Anyone who has come to see me about their case knows I analytically evaluate every case as if we are preparing for trial.  They teach us in law school to start with the jury charge and go backwards.  And I don’t wear my plea bargains on my sleeve either but candidly it’s where I do some of my best work of getting clients out of really bad jams.

Read here for an index to other domestic violence related blogs.

When Plea Bargaining Makes Sense

Domestic violence is an area where sometimes we simply can’t plead guilty.  It could trigger immigration, professional licensing, or other consequences we cannot accept.  So this is the first question – can the client afford the consequences of a guilty plea in a family violence case?

Pleading guilty or not guilty is always the client’s choice.  Some folks don’t have the stomach for trial.  Trial in a domestic violence case normally takes a day or two but can take a week or more.  I have fun in trial but that’s because I’m not worried about going to jail when it’s over and I’m not worried someone on the jury or someone who just wanders into the open courtroom might know me and post the affair on social media.  I discourage the idea of pleading guilty just to avoid a trial most likely in front of strangers but again – it’s my client’s choice and not mine.

Pleading guilty or no contest may also make sense in cases where I honestly tell my client the odds for an acquittal are long given the specific facts of any cases… and I go through a cost/benefit analysis with my client about the pros and cons of taking the case to trial.

Important Factors in Getting a Favorable Plea Bargain

When someone is pleading guilty or no contest (there is no legal difference which matters in criminal law) – they are accepting responsibility.  It’s important for folks to remember this.  If someone is going to take responsibility for the charges against them – then I always advise clients to do so sincerely, earnestly and whole-heartedly.

Beyond this if someone is going to take responsibility they also take on the onus of not only promising not to do it again but taking the affirmative actions necessary to make sure and guarantee it doesn’t happen again.  This may include accepting anger management, marriage counseling, or a batterer’s intervention program.

Often substance abuse and/or psychological disorders need to be addressed as part of the underlying causes.  So a person may need to accept evaluations along with follow-up recommendations.

If someone is willing to face their decisions and demons to make sure a domestic assault doesn’t happen again then it obviously bodes well for plea bargaining.

Ultimately plea bargaining is far more common than taking a case to trial though many of my colleagues pretend otherwise to the public and to one another.  It never hurts to have a good strategy of an exit-ramp in a case which can often be a plea bargain my client finds acceptable.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He has been designated as a Texas Super Lawyer by Thomson Reuters.

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