1.6 General Duties of Defense Counsel

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

1.6 GENERAL DUTIES OF DEFENSE COUNSEL

1.601 Initial Action. The attorney should ensure that, at every stage of the proceeding, the client is afforded every right to which he or she is entitled, and no rights should be waived except upon the express consent of the client after being fully advised as to the effect of the waiver.

Whenever an attorney accepts employment as defense counsel in a criminal case, certain steps must be taken immediately. First, the attorney must ascertain the client's status and learn as much as possible about the facts of the case. ¹⁴³ The attorney should find out whether the accused has been charged, arrested, incarcerated, or released on bail. If the client is in custody, the attorney should find out where the client is and initiate contact without delay. If the client is in jail, the attorney should check the visitation rules of the jail. When visiting the client, the attorney should always carry sufficient identification. If the request to see the client comes from a member of the accused's family, it is best to have a request form signed by that person.

Second, the attorney should advise the client as soon as possible about his or her right against self-incrimination and encourage the client not to consent to police interrogation without the presence of counsel.

Third, the client should be advised not to discuss the case with anyone without the attorney's prior approval. If the client is incarcerated, the attorney should advise the client not to discuss any aspect of the allegation with anyone else—not with a cellmate or a deputy or on the phone with someone outside the jail. It is good to try to establish a rapport with the client so that he or she will confide in the attorney rather than in a cellmate or jailer.

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Fourth, if the client is not a United States citizen, even if that individual is a legal resident alien, the attorney should discuss possible immigration consequences with that individual and refer that individual to an immigration attorney. ¹⁴⁴

Fifth, if the client is in custody, the attorney should counsel the client concerning the merits of a bail hearing, and should try to obtain the client's release on bail as soon as possible if the client desires a hearing.

1.602 Fee Arrangements.¹⁴⁵

A. Private Counsel. The attorney and the client should have a complete and thorough understanding concerning the fee arrangement. The fee must be reasonable, and contingent fees are not permitted. The client also should know that other expenses may be incurred for investigative work, travel, and other related matters. Although the Virginia State Bar does not require fee arrangements to be reduced to writing, it is always advisable to do so. ¹⁴⁶

The attorney should be wary of accepting less than the full fee desired to resolve the case, as a judge may not allow an attorney to withdraw solely because the full fee has not been paid. This is one of the most difficult business decisions for the practitioner, as some clients may not be able to afford payment of the entire fee up front. In some cases, therefore, the practitioner may agree to set an advance fee that covers at least all preliminary work short of the trial of the case. The attorney may, however, agree to accept a fee that covers only the services performed through the preliminary hearing and withdraw from representing the client after the preliminary hearing upon proper notice to all parties. ¹⁴⁷ Then, if a trial becomes necessary, the balance of any fee should have been agreed to prior to accepting the case, with a specific due date for payment before trial. The practitioner should have any agreement in writing, specifying the total amount due, any due dates or triggering events for additional payments, and the amount of such

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additional payments. Any advance fee must be kept in a client account and may not be transferred to the attorney's operating account until earned. ¹⁴⁸

The attorney should obtain the client's agreement before incurring any unusual expenses, such as hiring investigators and expert witnesses or obtaining the aid of a psychiatrist. The attorney needs to decide whether to include such foreseeable expenses in the required retainer fee or to specify in the written agreement that the fee paid is solely for...