9.1 INITIAL INVESTIGATION AND CLIENT INTERVIEW

• Jurisdiction: Virginia
• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2025 Ed.)

9.1 INITIAL INVESTIGATION AND CLIENT INTERVIEW

9.101 Value and Purpose of Interview.

The foundation for building a robust defense for a person charged with a criminal offense is most often established during the initial interview. The primary objective of the initial interview is to establish a proper attorney-client relationship. The first impression is generally a lasting one; therefore, the client must be able to meet with the attorney and discuss his or her case with a feeling of complete confidence, respect, and trust. During this interview, every effort should be made to place the client in a proper frame of mind and to prepare the client for an ongoing relationship of trust and confidence.

The lawyer should be well prepared for the initial contact with the client. Counsel should conduct the interview in a manner that demonstrates that he or she is knowledgeable and capable of properly defending the client and is sincerely interested in doing so. Evoking a sense of trust and confidence in the client is most important. The lawyer must assure the client that he or she will do everything legally and ethically within his or her power to protect the client's interests.

9.102 Preparation for Interview and Initial Steps.

A. In General.

The sequence of steps to be taken in preparation for the initial interview depends largely on the stage of the proceedings at the time the attorney is first contacted by the client. Occasionally, the client contacts the attorney before being charged. Typically, however, counsel is retained after the person has been charged. Obviously, an attorney can discuss the case more intelligently with the client after becoming thoroughly familiar with the statutory and recent case authority dealing with the particular crime and its penalties and after having discussed the case with the prosecutor.

This paragraph assumes that the lawyer has sufficient time to prepare for the initial interview. If the lawyer must visit the client immediately, he or she should discuss only what is necessary at the first meeting and postpone the rest of the interview until the lawyer has time to prepare for it properly.

Before the first formal conference with the client, the lawyer should call the local law enforcement agency to determine what charge or charges have been placed against the client (or are being contemplated by the authorities) and the particular statute or statutes he or she is alleged to have violated. It may be necessary to check with the Commonwealth's attorney to secure this information. If neither office can furnish this information, the lawyer should contact the local magistrate, who may have issued the warrant charging the client.

Counsel should become completely familiar with all relevant Virginia Code sections relating to the offenses charged and determine the elements of the crimes and the statutory penalties. Generally, the first thing the client wants to know is the penalty to which he or she may be subjected. Counsel's ready knowledge of the statute enables him or her to discuss the case intelligently with the client. Nothing the lawyer can do will develop the client's trust more than being able to talk authoritatively about those matters without having to "look up the law" when questioned by the client.

Another crucial step in preparing for the initial interview is to get as much factual information as possible concerning the case before meeting the client. Before or immediately after arranging for the conference with the client, the lawyer should contact the office of the Commonwealth's attorney and determine, if possible, who will be handling the case. It also is advisable to determine who made the complaint and the name of the law enforcement officer who conducted the investigation.

Defense counsel should then contact the Commonwealth's attorney, his or her assistant, or the particular law enforcement officer. Use of the telephone should be confined mainly to setting up a conference, as a more thorough investigation of the details and circumstances is best achieved by personal contact. In all probability, the person handling the prosecution will have statements of the complainant, the witnesses, and, in many cases, the client. Counsel should request copies of the statements and a list of the witnesses who will be called by the Commonwealth. If the Commonwealth's attorney is not willing to cooperate in making this information available, counsel should consider filing appropriate motions before the trial or preliminary hearing. Formal discovery may also be filed pursuant to the rules of court. ¹⁷⁴²

Doubtless, there will be occasions when a client "gets the word" that he or she is about to be charged with a criminal offense. The lawyer should determine from the client the information upon which he or she has made...