My Comment: 

If you know you’re guilty or will have to Plea, don’t waste your money on your attorney’s “Discovery” fees. If you’re willing to provide in your NARRATIVE your story where you accept responsibility while expressing remorse for the victims you’ve harmed, providing this 1-2 weeks before your Presentence Interview is the smartest thing you can do. 

The Probation Officer preparing your Probation Report will appreciate your efforts, as they have a full caseload and no time, and you are taking this seriously. Reading your narrative before your interview allows them to understand who you are better. Then, during the interview, they can get to know you, asking any remaining questions they may have. As they draft your official Presentence Report, they may recommend a more lenient sentence to your Judge. 

They are the first STAKEHOLDER you will meet who have the power to influence the trajectory of your immediate future. Why? Judges respect their sentencing recommendations, including Probation, Probation, and Prison (50:50, at best), Halfway House and/or Home Confinement, Restitution (No Interest Box Checked), and your Placement Request. If RDAP is an option identified in your Presentence Report, verify that it has been included in the judge’s Order, as I have seen too many cases where it has been left out.

Interviewing Attorneys. It is best to have someone you trust as you meet and interview new attorneys if for no other reason than this is a very stressful time, and having another set of eyes can be very helpful.

ASKING THE RIGHT QUESTIONS

CHOOSING THE RIGHT ATTORNEY, and one who,

  1. Practices federal criminal defense in a federal court and
  2. Has experience in cases like yours. It sounds like common sense, right?
    • … at this moment, you may not be making the best decisions for yourself, so consider bringing along someone you trust to get their feedback as you meet and interview different attorneys.
  3. A case in point is a client I had who, unfortunately, didn’t ask any questions, only to learn his attorney years later didn’t specialize in Federal Criminal defense and had a disciplinary problem with his state bar.
  4. Handling cases like yours is essential. 
  5. They should be willing to provide several current or past clients for you to speak with to ease some of your concerns and 
  6. Provide several Sentencing memorandums (it should be about You – not just quoting legal stuff that the Judge already knows, like Booker) for cases like yours for you to read.
    • If they mention HIPPA, I agree, but Adobe allows for redacting all personal information and works better than a black marker. If you notice that the memorandums appear similar, keep interviewing other lawyers.
    • Feeling comfortable with your chosen attorney is just one more step in the right direction as you develop a successful defense team.
    • During the interview, try and
  7. Ask why they wanted to practice law and what was their best federal case sentence result, as these are both excellent conversation ‘ice breaker’ questions and
  8. Ask them when they recommend preparing for the Presentence Interview and Sentencing Hearing. [The best answer is Today]
  9. Ask whether they charge hourly or flat fees and if they have a payment schedule option.
    • If you want to go to trial (just feeling your right is insufficient), I give you FTX Sam Bankman-Fried and Elizabeth Holmes. Remember that the DOJ has a 90+% conviction rate.
    • Therefore, additional strategic questions would be:
  10. How many trials and appeals (or what “%”) have they won, out of how many cases, over the past 3-7 years?
  11. Don’t anger the court – before they ever meet you. That’s playing Russian Roulette with your life.
  12. What is their current caseload, or how busy are they – too busy?
    • Consider that a single attorney with a small staff could support two or three yearly criminal trials while working full-time.
    • A Federal Defender may be as good if not better than private counsel.
  13. While not yet law, is your attorney familiar with the Fairness in Restitution (FIR) Act? If you anticipate owing Restitution, consider requesting that the Government:
    • Show actual loss sustained by a victim as a direct and proximate result of the defendant’s actions,
    • Eliminate joint liability and ensure that defendants are only responsible for financial losses they caused,
    • Provide a right to an evidentiary hearing for proving or disproving the amounts included in a restitution order,
    • Change the statutory period of liability from 20 years to 10 years and prevent extensions;
    • Exempt any reduction in restitution amount owed from being counted as income for tax purposes.
    • Verify that the No Interest box is checked
  14. What is their opinion of providing your Sentencing memo, which includes your Sentencing Length Explained under USSC Guidelines and your Placement Request, to your Probation Officer – before the PSR is final?
  15. Last, if you have time, watch them in court.

AT SENTENCING, YOUR JUDGE WANTS TO HEAR FROM YOU – NOT COUNSEL

  1. They want to believe you’ve Accepted Responsibility for your actions.
  2. They want to see that you have Remorse for the Pain you have inflicted on your Victims.
  3. They understand crimes do not happen in a vacuum. Therefore, what happened in your life that caused you to break the law?
  4. What is your plan (Your Release Plan) to not return to their courtroom?
  5. Were there other ramifications, such as losing your professional license to practice in a career you love?
  6. It is good when provided in written form, and accompanied by a short video is another excellent option that could be cheaply done on a smartphone.
  7. Have you always provided community service or volunteered in your community? If so, talk about it and ask for Character letters for verification.

BEST PREPARATION – The choices are yours. Other Resources 

Trials and Appeals. For cases like yours, with your judge, it is essential to learn how many in the last few years, or what percentage, have they successfully won in court. Remember that 98%. Also, do they have first or second experience to prepare you for daily life in federal prison so that you do not get surprised on day one, or do you need someone with BOP Prison experience to work with you on your Narrative, Release plan, and Character letters?

When selecting an attorney, choosing someone who will listen attentively to your situation is also helpful. Ask them: what can I do to help in my defense? It’s even better if they understand the importance of creating your Personal Narrative and Release Plan. Why is it necessary? Your Narrative is essentially your personal story or brand, and until now, the Department of Justice (DOJ) has been writing your Story for You – mainly through your Indictment. Do you like how it made you feel and look? Unless you take control and change your story, that is all your judge, and future STAKEHOLDERS will know about you. Therefore, consider these factors carefully when selecting a lawyer to ensure that you make an informed decision.

You’ll want to know if your attorney can work directly with you or through paralegals and other attorneys. This is because you want to know how often you will get to speak with your attorney. Will you be receiving updates via email, phone, or both? This becomes critical in cases that extend out years until you’re sentenced and can become very expensive. Will you be free on your recognizance or put on pre-trial detention (with a probation officer), or should you expect to be remanded and locked up following your Arraignment? If you’re locked up when you call your attorney’s office, will someone be there to accept collect calls? Will the Paralegal or an attorney be familiar with the details of your case?

NO WITNESS TAMPERING – DON’T ANGER YOUR JUDGE

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Strategy: Trial or Plea. If you are unsure, then start Not Guilty, but if you know you’re guilty in your gut (or heart), save yourself legal fees and the court’s time. This, in turn, could result in a lesser sentence. How?

If you decide with your attorney to plead guilty and cooperate with the authorities, your sentence may be significantly reduced. Cooperating by providing substantial assistance is based on what you have heard or seen, but you cannot lie. Before cooperating with the government, getting a Proffer letter or agreement is best. A proffer letter is a legal agreement between a defendant, their attorney, and the government. The letter guarantees (kind of) the defendant immunity, meaning that the government cannot use any statements made during the meeting against you in their case – unless you aren’t truthful.

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However, they can use your statement to follow leads. It does not guarantee a reduction in your sentence upfront, but rather only if this new information is used successfully against another. Honesty is a key provision of the agreement, and if the government believes that you, the defendant, are dishonest, they can end the meeting and now use these statements against you.

The authorities may also require you to testify, which is a separate matter. Cooperating is generally recommended unless it poses a danger to you and includes parts of it in the submission. Your letter should primarily convey remorse; the judge needs to hear from you (through your NARRATIVE and Allocution) that you understand your actions’ consequences and won’t repeat them. Judges Do Not Want to See You Back in Their Courtroom; believe them! Unsure, ask me!

FEES

My Comments: Please do not let the cost of your attorney be your only guide. A Federal Defender who “Knows his/her way around the sentencing guidelines and federal cases like yours” may be more helpful than a high-priced attorney. When practicing federal criminal defense, a former prosecutor doesn’t always make a great white-collar defense attorney. Ask your attorney questions and see whom you’ll work best with.

Having a contract that spells out: 

  1. Your specific financial responsibilities,
  2. That you’ll receive copies of all court filings before they’re filed,
  3. Time to review plea agreements, 
  4. The ability to review discovery, and
  5. You’re “cc” on most, if not all, documents and once a month, Docket Sheets.

If there is a flat fee and the relationship is terminated, should you expect a refund within 30 days? What would be the fair percentage? It’s only after getting answers to your questions that you think that the former AUSA, now White-Collar attorney, is a good fit for you.

Do they charge hourly or a flat fee? The hourly fee may be based on a prepaid retainer, with monthly bills offset against the retainer (that doesn’t include expenses, with different charges each for the attorney, attorney partner, paralegal, and legal secretary). If it is a flat fee (non-refundable) and cheaper than the other attorneys in your area (as you have learned after interviewing a few), that may give you something to consider as too cheap may not be a great idea either.