4.2 Initial Client Contacts

• Library: Defense of Serious Traffic Cases in Virginia (Virginia CLE) (2020 Ed.)

4.2 INITIAL CLIENT CONTACTS

4.201 First Contact. A client's first contact with a defense attorney's office is usually by telephone. Counsel should try to make time to take this initial call personally or, at the very least, ask an assistant or paralegal to give the potential client some substantive general information about the process and confirm that the attorney will call back within 24 hours, if possible, or within a stated reasonable time. This is also the time to determine whether any conflicts with other clients exist that would preclude representation.

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Personal contact with the client is critical and indicates the level of service that counsel is committed to providing during representation. The client, especially one who has not had prior contact with the legal system, will understandably be anxious about the pending case, and a meeting should be scheduled as soon as feasible to confer in person, either in the office or at the jail if the new client is incarcerated. A client is much more likely to make and keep an appointment and eventually retain the firm when the attorney and office staff are prompt and responsive in returning telephone calls or emails and scheduling this initial conference.

4.202 Before the Meeting. The first client interview is important for several reasons. Depending on the jurisdiction, the time for pretrial preparation may be limited. The sooner counsel is retained, the more time is available for preparation. Also, when there are issues involving bond, ¹ pretrial license suspensions, ² or impoundment of the client's vehicle, ³ immediate contact with the court may be required to schedule a hearing on these matters. When some form of driving under the influence of alcohol or other drugs is involved, the client may not be the best source of information due to faulty memory of the events. Early contact will allow counsel to discover the strengths and weaknesses in the case, to confer with the officer or any other potential witnesses, and to plan accordingly.

When the initial conference is scheduled, the client should be instructed to bring copies of any warrants, summonses, and other court papers to the meeting and, if possible, to obtain a copy of his or her current DMV transcript before the meeting. The traffic record can be easily procured from either the local DMV office or the DMV website. ⁴ This should be done as soon as possible. If the current charge(s) could be enhanced on the basis of prior offenses, it is particularly important for counsel to review the DMV record, which will indicate the courts to contact for obtaining certified copies of the underlying warrants or summonses regarding the prior convictions. The client should also be prepared to provide names, telephone numbers, and current physical addresses of any potential witnesses so that they can be contacted by the attorney, interviewed, and summonsed to trial if their

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testimony is needed. Clients should be encouraged to make notes about the circumstances of the stop or arrest and to come to the meeting prepared to relate all of the facts surrounding the incident. Because serious traffic cases tend to rise or fall on the facts, the client's memory of the events will be vitally important as the case strategy evolves.

4.203 First Meeting Agenda.

A. In General. The initial client interview is the time to personally evaluate the client and test the quality of the client's recollection of the events leading to the arrest. This is also the time for counsel to decide to accept or decline representation. The attorney should explain to the potential client any conflicts that would prevent the attorney from accepting the representation and also help the client understand that there is no obligation to hire counsel if the client is not comfortable with the terms of the representation. A brief discussion of fee arrangements is also in order if the case is not by court appointment. If the court date conflicts with counsel's previous commitments or if more time is needed to prepare for trial, a motion for a continuance may be filed. ⁵ Most courts will permit the first continuance as a matter of course and will often have the officer's next scheduled date available to accommodate this request, but counsel should always check with the court for local practice in this regard.

B. Chronology of Events. Counsel should have the client relate in great detail exactly what he or she remembers, starting with the initial contact with the police—or earlier if those facts are relevant. Detailed, careful notes will prove helpful both for initial evaluation of the case following the first interview and for use in preparing the case for trial. The attorney should conduct a thorough interview of the client at the first meeting and, as stated above, obtain a list of possible witnesses and their contact information. ⁶

Facts that would support a lack of (i) reasonable articulable suspicion for the stop or (ii) probable cause for the arrest can be critical to winning cases. ⁷ At a minimum, these types of facts can place the client in a stronger bargaining position. A thorough interview may also help counsel identify particular circumstances or traits of the client, such as a speech impediment that would readily explain an allegation of slurred speech or

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chronic physical issues that might explain sub-par performance on dexterity tests. The possibilities are endless, and the more complete the interview the better the chances for success. This...