Legal representation

[tcoz]

The US Concealed Carry Association recommends that all members contact a self-defense attorney, whose name and telephone number you then keep with you at all times so that if you're ever involved in a self-defense shooting, you'll have already pre-screened your legal representation. In doing so, I came across a couple of experienced SD attorneys who asked for a retainer in order to guarantee their services. I've had very little experience with attorneys, so I was wondering whether this is commonplace to guarantee representation for a situation that would likely never arise. Chances are, I'd be paying a retainer fee that I would have a 99% chance of never using. If there are any attorneys out there, I'd be especially interested in hearing what you have to say.

 

[Frank Ettin]

It's a fairly common practice. It assures that the attorney will keep himself available and not accept employment which might create a conflict of interest.

Under the circumstances, I would expect a retainer to be fairly modest. If you require services, the fees for those services can be charged by the attorney against the retainer.

 

[BSA1]

When questioned by the Police you have the right to keep your mouth shut and the right to legal counsel before being questioned which gives you time to talk to and hire a attorney.

 

[Frank Ettin]

When questioned by the Police you have the right to keep your mouth shut and the right to legal counsel before being questioned which gives you time to talk to and hire a attorney.

What a great plan?

Of course, you've just been through the high stress event of a violent encounter and perhaps had to shoot another human in self defense. Maybe you're sitting in an interrogation room at the police station handcuffed to a table, or maybe you're in a holding cell. Police officers might be coming around regularly to see if you've finally decided to talk with them. You're worried about your family. You're worried about the bashed in front door of your house. If the incident happen away from home, maybe your car has been towed to the impound lot.

You've just been through a harrowing experience, and your world is inside out. What a perfect time to have to go looking for an attorney you trust to hire.

One could save himself a lot of grief and stress by making arrangements ahead of time.

And as has been discussed here in the past, in the case of a self defense incident keeping silent might not be the best idea. See this thread.

 

[Sam1911]

I think there might be two different questions here.

1) It is a great idea to have an attorney picked out and even to have spoken to them about their qualifications and willingness to take on a self-defense case.

2) It is generally not necessary to pay them a retainer to be "on call" (for lack of a better phrase) for you. Retainers tend to be paid for some kinds of legal services that a person or company fully expects to use on an occasional/ongoing basis, and/or to obtain the assurance that a specific attorney will be on your team, not your opposition's, in anticipated legal disputes. The need to mount a self-defense case is pretty long odds for most folks so the retainer wouldn't be likely to be necessary.

Some folks report contacting attorneys about this and being told, "Here's my card. Call if you need me. I don't need your money until you need my help."

 

[Jim K]

^^^^^ What he said.

I have long said that anyone who carries a gun should (really, must) have an attorney on retainer. Since it is almost a certainty that you will be arrested, and you will not be able to keep your iPhone, Galaxy, Tablet, Notepad, and all the other stuff you cart around, memorize the attorney's name and phone number.

If you think that you can shoot someone on the street anywhere in the U.S. and just have the cops call it a "good shoot" and buy you a drink, you are living in a fantasy land and need serious professional help, not a CCW license.

Jim

 

[cheesebigot]

If you think that you can shoot someone on the street anywhere in the U.S. and just have the cops call it a "good shoot" and buy you a drink, you are living in a fantasy land and need serious professional help, not a CCW license.

I'm not so quick to think that one might need serious professional help if they were to believe a "good shoot" would justify itself, however, I do believe that one should seriously consider the ramifications of what they are subjecting themselves to should one decide to carry. It's not just a matter of which gun to carry and which ammo to stuff in the magazine, there are many more repercussions that should be considered such as, but not limited to, legal defense, civil defense (state-dependent), financial security (if you die or are convicted, will your family have an income?), and even social ramifications (more for OC).

Think of the attorney the same way we argue in favor of carrying - we may never need it, but we'll be damned if we're caught without it.

 

[JRH6856]

As to talking to the police... If you do pre-interview attornies and especially if you pre-select or retain counssel, ask them what they prefer you to do in the event. Some attornies prefer not to have their strategic options compromised by your on-the-spot decicion to claim self-defense and acknowledge up front that you did indeed shoot someone. You may genuinely believe you acted in self-defense, but your attorney, who is (or should be) better versed in the law than you may detect a weakness in that defense that you did not take into account.

This can happen in any case where something you did leading up to the shooting might be construed as escalating the event. Even in stand your groung states, this can be touchy with an aggresive prosecutor. See the Zimmeman case as a good example.

 

[gym]

Having been in that situation, you need to have an attorney who is "hooked up" with the criminal justice system in the area where you have the incident. Unfortunately you can have a great lawyer who is from another part of the state who may not know the right people in the area that your situation occurs in.
I called a female friend who worked with lawyers and she called the "right" guy to handle my case. He knew everyone by first name, and my case was called first, all he said was keep your mouth shut and we will be out of here in a few minutes.
I hadn't done anything illegal just a rookie who made a huge mistake, all charges were dropped, but he was able to find out things that an outsider would never have been able to find out. The judge was a friend, and they were afraid I would sue the Dept, and the city, he was able to convince them that all I wanted was my permit and guns back, and I would not sue, it still took 18 months, but that's what happened.
Having an outsider come in, like in the movies, is unrealistic, it's like a private club, the court officers judges and cops all know each other, and who you know has a lot to do with how you are treated, and if the attorney can speak to people off the record.
In NYC you still have to go to a "Captains hearing" at 1 PP. after the case, "even if you convince the captain, that you are innocent you get your guns back" they determine if you get your license back. It's a lot of politics.
In my case the cop forgot half of what happened, he didn't take good notes, when I challenged some of the facts, the Captain saw that he was making it up as he went along, I can still hear him screaming at the "now plain clothes cop" from down the hall, after telling me I was free to go, and that they would notify me by mail.
It may be different where you live, but I have found that you need a lawyer who is in the county that you get arraigned in, which is hard to know in advance if you travel.
I ended up with a good friend "the attorney" and 30 yrs. later we still get a Christmas card every year even though I moved out of that hell hole.

 

[bikemutt]

At the very least it's a good idea to have a few attorneys names who specialize in firearms law and SD situations. Around here most of them advertise in gun-related newsletters, even at gun shows. I keep my lawyer's card with my driver license along with a couple others for backup just in case he's in Hawaii while I'm in jail.

 

[Spats McGee]

First of all, I'll commend the OP for at least thinking about this issue. I see altogether too many concealed carriers who spend hours and hours worrying about getting all the right gear, but stubbornly insist that "a good shoot is a good shoot." The reality is the situation is that "a good shoot is a good shoot after a whole bunch of folks other than the shooter have decided that it is." Those folks consist of cops, prosecutors and (potentially) judges and juries. The other wild card, of course, being that the SD shooter doesn't get to pick the time, place or circumstances. I wish more CCers would put some thought into what happens after The Moment of Bang. The ramifications are very serious, indeed.

With all of that said, here's my position: Prepare for the legal fight the same as you would for the gunfight. Neither one is certain to happen, but the stakes are extremely high if it does. Learn the law where you're going to carry. Learn who to call when the fight's over. Learn how to handle the 911 call. Learn how to handle the police when they arrive on scene. (When the police show up, you may be standing there with a gun in your hand and a body on the pavement in front of you . . . ) Figure out how much to say before shutting up and asking for your lawyer. (See the post that Frank Ettin linked.) Learn what to do if your chosen attorney is on vacation when the poop hits the fan.

It does make some sense to interview some attorneys and get one picked out ahead of time. Retainers are not an uncommon practice by any means, but you may or may not have to pay one. Some may not want a retainer, because they're afraid that they'll be too busy to take your case if you are involved in an SD shooting.

 

[bainter1212]

I pay into an insurance program, called "Second Call". They basically guarantee me all sort of coverage for attorney fees and such for any "good shoot" I may get in to.

Their literature claims that they have a "network" of self defense attorneys, however I don't know if that applies to anyone local.

As an above poster stated, a local experienced attorney can be a godsend. I have experienced first hand, an attorney who was able to clear up a problem with just a phone call, because he knew the judges, clerks, cops etc etc.

 

[BSA1]

I'm not denying the importance of having a good lawyer but choosing your words carefully before you are Mirandized is important and something a lawyer won't be able to help you with at the time.

As far as I am concerned once the cuffs are put on me and I am no longer free to leave that is a arrest and I am shutting up. (Yes I know the Police call it something different).

When you call a attorney the first thing they are going to tell you is don't talk to the Police until you talk to him/her. I guess you have to weigh out the odds of having to use deadly force based on the community you live in and your occupation.

Of course everyone knows I have a yellow streak down my back a mile wide and will walk, er run, away from trouble.

 

[tcoz]

I thank everyone for their insightful and thought-provoking comments. The USCCA is basically an insurance program with a number of other included benefits. They also have a "network" of attorneys, but you're on your own to interview them and choose one or more. I liked the comment about choosing a local attorney to represent you, however none in our county are on the list. I've cold-called a few and have mostly had them recommend other attorneys who they know have handled SD cases. I finally decided on one a few hours from here who also carries concealed himself and has a good reputation handling these types of cases. There were a few within a half hour, but they're in a different state and I didn't think that would be a good idea.

Thanks again.

 

[Blackbeard]

I'm curious why your attorney would need to be "on retainer". It's not like you can't contact him if/when you're arrested. He's not going to "spring" you any faster than you can post bail.

All you really need are the magic words: "I refuse to answer any questions until I can talk to an attorney." If they have enough to charge you, they'll hold you -- attorney or not. If not, they'll let you go.

 

[Fremmer]

Knowing some good criminal law attorneys is a good thing.

Avoid the insurance deals. you want to hire the right specific person, and youndont want to be limited in your choice. Put a thousand in an emergency checking account. I'm not too keen on a lawyer who wants to keep a retainer just in case; most lawyers don't take retainers unless they'll do work and bill off of it relatively quickly, and they won't want the hassle of keeping track of your money and having to return it to you when you need it for something else.

Know what I'd do? Find a good general practitioner close to you who can do an estate plan or other work for you. That'll be the guy who gets the panicked call from you if something were to happen, and he'll know exactly the crim law lawyer to refer you to.

 

[Frank Ettin]

...I'm curious why your attorney would need to be "on retainer". It's not like you can't contact him if/when you're arrested...

An attorney on retainer has been hired by you, has accepted you as a client and is ethically obliged to respond to you and represent your interests. An attorney who has not accepted you as a client, may decline your case.

...Find a good general practitioner close to you who can do an estate plan or other work for you. That'll be the guy who gets the panicked call from you if something were to happen, and he'll know exactly the crim law lawyer to refer you to.

Actually, he probably won't. A self defense case is different from the ordinary criminal defense case (as discussed in the thread I linked to in post 4). Many excellent criminal defense lawyers have never handled a self defense case. But one is best off with a lawyer with good self defense case experience.

 

[tcoz]

Knowing some good criminal law attorneys is a good thing.

Avoid the insurance deals. you want to hire the right specific person, and youndont want to be limited in your choice. Put a thousand in an emergency checking account. I'm not too keen on a lawyer who wants to keep a retainer just in case; most lawyers don't take retainers unless they'll do work and bill off of it relatively quickly, and they won't want the hassle of keeping track of your money and having to return it to you when you need it for something else.

Know what I'd do? Find a good general practitioner close to you who can do an estate plan or other work for you. That'll be the guy who gets the panicked call from you if something were to happen, and he'll know exactly the crim law lawyer to refer you to.

Fremmer, I'll have to respectfully disagree with you here. First of all, the USCCA program doesn't provide or find an attorney for you. They only have a state-by-state list of SD attorneys with websites and contact info listed in case you want to contact them.
Secondly, I think having insurance that will pay for your legal fees and civil judgements against you as well as provide immediate funds to retain an attorney, isn't a bad idea. Even if you're found not guilty, the legal fees can ruin your life. My original question was just whether or not retaining an attorney right now makes any sense. What I do know is that a retainer will guarantee that he or she will be available to take your case if needed.
Third, the last thing I want to be doing from my jail cell at 2am, is trying to contact the attorney who drew up my will to ask him for a recommendation of someone I can call. Actually, he probably won't even know of one. I spoke to a few criminal defense attorneys who couldnt even refer me to anyone who has ever handled a SD case, so I'm not confident that an estate planning attorney would be able to either.

 

[Frank Ettin]

And a word on insurance:

A major reason to have applicable insurance is to cover legal fees. Legal fees from the preliminary investigation through a jury trial (if you're that unlucky) can run from $50,000 to $150,000 or more. Not many people have that much extra cash stashed away.

 

[Jim K]

Some time ago, on another site, I said essentially what I said above, that a shooter will be arrested.

Another poster disagreed. He wrote that his father was chief of police of his city, his uncle was the chief judge of the county, another uncle was county sheriff, one brother was the agent in charge of the local FBI office, another was the district attorney, a third was an defense attorney and head of the bar association, and a cousin was U.S. Senator. "Do you still think I will be arrested, for anything?" he asked.

I had no answer.

Jim

 

[tcoz]

After a statement like that, not only would I not have an answer.....I'd be speechless. There's a difference.

 

[Spats McGee]

I'm not denying the importance of having a good lawyer but choosing your words carefully before you are Mirandized is important and something a lawyer won't be able to help you with at the time.

Absolutely correct. That's one reason that it is so important to understand how to interact with police and investigators until you can make contact with your attorney.

When you call a attorney the first thing they are going to tell you is don't talk to the Police until you talk to him/her.

If we were discussing a garden variety criminal investigation, I would agree. SD shootings are a horse of a different color, however, and immediately clamming up may not be the wisest course of action. It's very important that witnesses and evidence be identified, lest they vanish.

 

[Jim K]

"Don't talk to the police" might be good advice if one is a suspect, but in other circumstances it could create problems as well as being plain wrong. Let's say you see a car smash into a group of school children and speed away. Following the "don't talk to the police" advice you would not give them the license number or any information on the car. Good idea? In my book, that would not only be obstruction of justice, but morally wrong as well.

Jim

 

[9mmepiphany]

I know a lot of defense attorneys and have seen most of them working in court. I selected several that I thought might be good and took the time to speak to them. Some good defense attorneys only deal with career criminals and do give the advice to not talking to LE, but really good attorneys don't give that blanket advice.

What they will do is ask you questions, determine your ability to keep a clear head and understand what you are getting into and give advice that they feel will help your case (evidencewise) if you should be involved in a shooting. They is a lot that can be lost if you don't bring it to an investigating officer's attention.

My problem is that the attorneys that I like keep retiring and I have to move other ones up the list. The one currently at the top of my list has a great record of making the ADA prove their case.

If you don't have that kind of access, ask attorneys that you know or court clerks who is really impressive. Or you can ask an ADA who they hate going up against the most. In either case, you'll still have to determine if they have a familiarity of defending someone who has admitted to a crime and using an affirmative defense

 

[Blackbeard]

An attorney on retainer has been hired by you, has accepted you as a client and is ethically obliged to respond to you and represent your interests. An attorney who has not accepted you as a client, may decline your case.

Ok but that doesn't explain why he needs to be hired in advance. I don't have plumbers on retainer -- I call them when I need them. Is there any chance you won't be able to hire any lawyer after you're arrested? As far as I know they all accept money and there's plenty to go around.