The 3:32am sleepy defense attorney’s guide to answering the “24/7 line”

This is an article I hope to have published in the Florida Association of Criminal Defense Lawyers’ publication, The Defender.

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The 3:32am sleepy defense attorney’s guide to answering the “24/7 line”

I do not know a criminal defense attorney who does not advertise that he or she is “available 24 hours a day, 7 days a week.” It’s the nature of the beast: most crimes don’t happen during business hours.

For those of you who advertise that you answer your phones “24/7” and don’t actually answer them, then stop reading now. And change your advertising!

For those of you who fumble for the phone, crawl out of bed, and stumble into the home office to try to figure out what the caller wants, then hopefully this guide will help you when you don’t have time to brew a cup of coffee.

This guide is not the definitive version of what to do when you are practically comatose and trying to practice law. It is intended as merely as a list of some issues to think about in advance, so when you do get those late-night calls, you have already given some thought as to who you may react to certain scenarios. And, as with any manual, treatise, guide, compendium, or other “scholarly” work, this guide is a work in progress, and I invite comment, criticism, and contributions. After we all put our collective sleepy brains together, we may have something worth looking at during that 3:32am call.

Initial considerations

As if it weren’t obvious, don’t engage a caller if you are sick, medicated, or have been drinking (or worse; if you have a problem with “worse”, please seek help through Florida Lawyers Assistance). First impressions are always the best – especially when speaking to a prospective client. But more importantly, you are playing a very important role in the legal system and need to have all of your wits about you. It’s OK to turn the phone off sometimes, or to tell the caller that you will call him or her back in a little while, or the next day. If necessary, give the caller the name of another lawyer who may be in better shape than you to address the emergency.

It is always best to quickly find out what the actual physical situation is like on the other end of the phone. Ask the caller if there is law enforcement present, and if so, can the officer hear what the caller is saying. If possible, speak to the officer and ask that the caller be permitted to speak with you in private. Some officers are cool about this, but others don’t even want to talk to you and are offended that the caller even has you on the phone. Try to have the caller move away from law enforcement without getting in trouble.

If the officer is within earshot, tell the caller to be very careful as what he or she is saying, because even though it is being said to you (an attorney), it can be heard by a third party and is not privileged. If the caller can give you some basic details, a good idea is to ask the caller questions and have them answer “yes” or “no.” For instance, if the call is whether to consent to a search, you could ask if the officer is going to find something illegal if a search is conducted. The officer on scene will only hear a one-word answer that will have no context or meaning. The likelihood of those short responses appearing in a police report as an admission then becomes very low.

You will sometimes get calls from the booking area at the jail. I always operate under the impression that the calls are recorded, and that the attorney-client privilege will not apply. So, I tell the caller just that, and to be very careful about what he or she says. I also ask a very specific question: “why don’t you tell me what the cops are saying you did” (as opposed to, “give me your version”). That will give me a version of the events as a basis to work with, and there is no admission by the caller as he or she is simply informing you of what they have been told by police. Most of the time, a next-day jail visit is in order. Make sure you get the name and number of a contact person on the outside, just in case.

Duty to prospective clients

You may get a call from an existing client (as was the one that prompted this guide – he was at a party when the cops showed up wanted to come in and search; of course, there was marijuana that he was concerned would be found), but most of the calls are from prospective clients, or just people who found you in the phone book and want an answer.

Rule Regulating the Florida Bar 4-1.18 sets forth your duties to a prospective client. According to Rule 4-1.18(a), a “prospective client” is “[a] person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.” The comment to the rule states:

Prospective clients, like clients, may disclose information to a lawyer, place documents or other property in the lawyer’s custody, or rely on the lawyer’s advice. A lawyer’s discussions with a prospective client usually are limited in time and depth and leave both the prospective client and the lawyer free (and the lawyer sometimes required) to proceed no further. Hence, prospective clients should receive some but not all of the protection afforded clients.

Thus, 3:32am callers are “prospective clients” and the issues of confidentiality, conflicts, and advice arise. You must keep whatever is said on the call confidential – that’s a no-brainer. The tricky issues are with conflicts and advice.

As defense attorneys, we all know that conflicts pop up from time to time. If the call is a DUI, or some type of offense that only one person can commit, then the likelihood of a conflict is slim. If it is a burglary or drug case, for example, then you may want to inquire if there are others involved, and try to get a name. You never know when an existing client may be somehow intertwined, and you don’t want to set yourself up for a conflict, or an allegation in a grievance that you misadvised the caller because of your loyalty to another client. Remember, people can get pretty creative in attacking attorneys, even if the claim is not true.

The advice issue is most worrisome in a midnight criminal prospective client call. None of us want to give “advice” to someone we don’t represent – it goes against what we’ve been taught about attorney-client relationships. However, the Bar rule says that prospective clients may rely on a lawyer’s advice. I suggest that you do not tell a caller what to do (unless it pertains to not breaking the law or protecting someone’s safety), but that you merely point out options based on potential consequences, and let the caller make his or her own decision. You also don’t want to tell a caller what to do until you have all the information so that you can help the caller (who may later be a bona fide client) make a sound, well-informed decision. I say this to point out that the last thing you want is for a caller to hire another attorney, and then claim that he or she did something based on your advice (i.e. consent to a search, speak to law enforcement) that gets them convicted (see “Should I speak to the cops?”, below).

I submit that you must qualify everything you say to the caller. Tell them you don’t know all the facts and giving sound advice requires more than just a fleeting phone call in the middle of the night. If you cannot do that, err on the side of caution with any advice: don’t consent to a search, don’t speak to the cops . . . that “advice” (if followed) always leaves some wiggle room once the case is in litigation.

“Should I take the breath test?”

This is not only a frequent 3:32am question, it is asked at parties by friends and family, in court, in consultations . . . all the time. Apparently everyone who goes out and parties on a regular basis has pondered this question and wants the definitive answer.

We all know that the law requires that a person submit to an approved breath or blood test. You must advise the caller the status of the law. I submit that the best answer is to merely parrot the Advised Consent statement that law enforcement reads, and tell the caller that the choice is completely theirs. Resist the urge to pontificate on the question, “if I refuse, do I stand a better chance of beating the DUI?” You are in no position to answer that question without knowing what the evidence against the caller is, and you certainly do not want to advise the caller to break the law in the event that they have a prior refusal and could get criminally charged for the second refusal.

“Should I consent to a search?”

You already know the Fourth Amendment law in this area. If the caller’s response is “yes” to your inquiry about whether the cops are going to find anything, then why consent? If the caller consents, then the likelihood of a persuasive suppression motion goes out the window – especially if the cop notes that the consent was after the caller spoke to an attorney on the phone!

Callers will say that the police promised that if they only find a small, “non-trafficking amount”, then they will go away and the whole thing will be forgotten (the popular line being used currently in Tampa, where I practice). We all have dealt with the police; is that a promise that the caller can take to the bank? Will a judge believe the caller later, that such a promise was made in order to induce the consent that would not have otherwise been given? I think not, and you should not tell a caller to believe anything the police are telling them until you have had time to investigate the matter.

Callers will also try to convince you that there is a defense to the presence of the contraband (“it’s my roommates stuff” . . . “I forgot it was there until just now” . . . ). The 3:32am phone call is no time to be discussing a possible defense after consent is given.

I submit that the best “advice”, or option, to be given to a caller is not to consent. They may not beat the ride to jail that night, but there may be a possibility to beat the charge on a motion later.

“Should I speak to the cops?”

Another million-dollar question. Most callers are going to be under the impression that if they speak to the officers, and “come clean”, that everything will be OK. It’s human nature to want to defend one’s self. Some will have been told that if they cooperate and made a statement, then the LEO will “speak to the prosecutor and judge” and go to bat for the caller. As with the search issue, it’s hard to want to believe a cop at 3:32am when you, the attorney, have no idea what has transpired so far.

I discussed this earlier in the article, but you are generally going to be in no position to make an informed decision as to whether to tell someone to speak to the police. I offer this as an example of how a knee-jerk reaction can result in misadvice and a potential ineffective assistance of counsel claim.

Coincidentally, as I was finishing this article today, I was visited by the mother of a prospective client regarding a post-conviction matter. Her son was contacted by officers who wanted to speak to him about sexual battery case. She contacted an attorney, who in turn contacted the officers and set up a meeting. The officers were vague about what evidence they had against him, but told him that it involved an underaged girl, and that if he did not make a statement he would be arrested for rape. The attorney took him out of the room and, with virtually no information about the case, advised him to admit that the incident was consensual, not forceful (I suppose to try to avoid the sex-batt arrest; who knows . . . ). The defendant did just that, and was arrested on the spot (how embarrassing to have a client arrested in your office!). Later, when encouraging the defendant to enter a plea to a prison sentence, he was told that he had no defense as he had admitted the criminal act! The issue now is whether, under Strickland , was that advice deficient, and would the outcome have been different had the attorney not advised him to admit the crime. Would it have been winnable at trial? Would the state have offered probation on a weaker case, rather than demanding prison because he had sealed his own fate?

Granted, my example is slightly different as it was not done at 3:32am. But the impact of giving the wrong advice is can be exactly the same on the phone as it is in person. Again, err on the side of caution.

Some callers will be straightforward and admit to you that they are in too deep or caught red-handed. In that case, you may be able to delay any interrogation until you have had time to investigate the case and meet with the client in private (and get retained). If it is necessary, then the interrogation can be turned into a proffer – and a proper proffer agreement can be executed with the government to protect your new client.

“They want me to become a cooperating source or CI . . . ”

Yet another tricky situation. I suggest getting the LEO on the phone, or in some situations, going out to the scene (if you have not gone out in the middle of the night, you don’t get the criminal defense lawyer merit badge!). Often times you will know the detective, and if you have some rapport with him or her, you can get some facts and make a more informed decision as to what to tell the caller. My suggestion is to get the LEO to agree to release the caller, and set up a proffer (again, with a proffer agreement) to determine whether substantial assistance is going to work for that caller.

“Here, speak to my co-defendant . . . “

This falls under the confidentiality and conflict consideration penumbra (love that word). You advertise “24/7” access so you can get clients and make a living. If you speak to the co-defendant, you may have just lost either of them – or both of them – as a client.

I cannot make any suggestions other than “don’t do it”, but think this out very carefully, and maybe refer the co-defendant to another “24/7” attorney in the phonebook.

“I just found out I have a warrant . . . “

The answer is, as I have discussed above, that you must tell the person that they have to turn themselves in as soon as possible. However, there are ways to handle this that comport with the law and will assist the caller.

After telling the caller of the obligation to surrender, I suggest that they could retain me (or any other lawyer) to set a bond or bail motion with the court. Some judges will allow the defendant to come in to court from the street, some will require they surrender before a hearing is set. Figure that out, and let the caller know his or her options.

If the caller doesn’t like that option, then suggest that they contact a bondsman to arrange the bond, and then head on in. I have also been able to contact the detective looking for the caller, and arrange for them to meet at the jail. Often this will put both the caller and law enforcement at ease – especially if the caller is wanted for a crime of violence that may have law enforcement on high alert (and potentially create a dangerous situation when they go to arrest him or her with guns drawn).

“I am a victim . . . “

This one is easy. Tell them to call the police directly. You cannot charge someone with a crime. An exception to this may be in a domestic violence situation, where you could be retained to represent the victim in an injunction proceeding. If you practice civil law, then you may want to delve into the situation a little more with the caller.

Civil matters

The funniest call I ever got was from a former client, who was drunk as a skunk and had been thrown out of a bar for being disruptive. He wanted to sue them for . . . something . . . I told him to get out of there before they called the cops on him, and to take two aspirin and call me in the morning. He never called, and didn’t get arrested, so I guess that was sound advice.

If you have an ad in the phonebook, you will get all types of calls. And, as you can see from my example, clients, former clients, and prospective clients will happily abuse the “24/7” line for just about any reason. As I don’t practice civil law, I really don’t get into even discussing those cases over the phone. For those of you that do, I submit that Rule 4.1-18 should be closely adhered to in every situation.

Most civil cases can wait until morning, unless you think the caller should either call law enforcement or go to the hospital.

AND NOW FOR THE TOUGH ISSUES . . .

The foregoing issues are really judgment calls on your behalf, but you should think through them in advance and have a semi-firm response that you can recite in the middle of the night.

There are some very peculiar situations, where you actions may later be scrutinized for ethics violations or even criminal prosecution. These are the rare circumstances where someone has committed a crime that has not been reported or discovered, or is in possession of a fruit (like drugs) or instrumentality (like a murder weapon) of a crime, and are on your phone line at 3:32am.

There are several Florida Bar Rules that are critical to this analysis. They are, in pertinent part:

  • 4-3.4: A lawyer shall not: (a) unlawfully obstruct another party’s access to evidence or otherwise unlawfully alter, destroy, or conceal a document or other material that the lawyer knows or reasonably should know is relevant to a pending or a reasonably foreseeable proceeding; nor counsel or assist another person to do any such act . . .
  • 4-1.6: A lawyer shall reveal such information to the extent the lawyer reasonably believes necessary: (1) to prevent a client from committing a crime . . .
  • 4-8.4(d): A lawyer shall not: (d) engage in conduct in connection with the practice of law that is prejudicial to the administration of justice . . .
  • 4-1.2(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows or reasonably should know is criminal or fraudulent…

“I’ve just committed a crime . . . “

Other than the occasional DUI call from the scene, these are pretty rare. Most of the time the caller has been detained or arrested, but sometimes the caller will have done something that law enforcement does not yet know about.

The best advice is to tell the caller that they should be in your office bright and early the next day. I submit that it is reasonable to believe that the crime will ultimately be discovered and reported, and an investigation commenced. And, depending on the circumstances, it could be inevitable that the caller will be identified as the perpetrator.

You should also tell them that they have an obligation to turn themselves in. YOU risk being charged with obstruction of justice or a violation of Rule 4-8.4(d) if you tell them to “lay low” and forget about it. You can tell the caller that although they need to surrender, after you meet and discuss the case in detail, you will be able to arrange their surrender and bond.

There are instances where the crime may never be discovered or reported. In that case, ethically, you may have a duty to somehow report it without disclosing that your caller/new client was the perpetrator. The ethical considerations in that circumstance are extremely important, and too complicated for this (the first) version of the 3:32am guide. However, I submit that the primary importance is confidentiality and protecting the interests of the caller (remember, he or she is provided some protections under Rule 4-1.18). Further, you should also disclose your obligation to report the crime to the caller (or new client).

If you feel that the caller is going to commit a crime, then you may be justified in revealing just enough information to prevent the commission of that crime, or for the protection of someone. I’m sure this is just what you wanted to hear on the other end of the phone when you were awakened!

Fruit or instrumentality of the crime, or “what should I do with this bloody knife?”

In law school they talked about the client who comes to you with the murder weapon and wants you to keep it in your safe so no one knows about it. Nay nay, you cannot do that; you will certainly run afoul of the ethics rules! A 3:32am caller may be in a situation where they have contraband or evidence that should be immediately turned over to authorities – often innocently (such as “I found drugs in my car after my friend returned it to me” . . . “I found stolen checks in my child’s room . . . “). The caller may be enlisting your help in ridding him- or herself of that item without getting in trouble.

There is ample authority that supports two critical conclusions in this regard:

(1) a defense attorney may not accept evidence, fruits, or instrumentalities of a crime unless he or she makes the evidence available to the prosecutor or investigating law enforcement agency; and

(2) a defense lawyer may not be compelled to reveal the source of the evidence, fruit, or instrumentality (especially if it will implicate the client or breach a confidentiality).

It is not unethical for an attorney to hold on to the evidence of a crime for a reasonable period of time in order to prepare a defense, but it must be disclosed. Also, the available authority in this area seems to draw a distinction between receiving evidence and merely viewing evidence.

I submit that there is simple a way in which to get evidence, the fruit of, or instrumentality of a crime into the hands of the authorities. As with the issue of an undiscovered crime, you must act in a way that protects the manner in which the item came into your possession, protect caller/prospective client confidences, and protect the best interests of the caller/prospective client.

Here is an example. A medical student came to me, after he had written a fraudulent prescription for pain medication. They pharmacy where he wrote it knew who called law enforcement. That there was an investigation commencing was unavoidable; my biggest concern was the police catching him with a trafficking amount of drugs on him. He brought the pills to me, we photographed them all, and a colleague called a narcotics detective turned in the pills. Thus, the caller (who became a client) was safe, and the pills were in the hands of the authorities. No, I did not give them the bottle with his name on it – it remained in my possession until such time as it may have been needed. As a happy side note, the pharmacist could not ID my client, and no charges were filed.

I submit that this process is probably best undertaken once you have been retained and there is a formal attorney-client relationship, as there are greater protections for you as far as how much you can limit your obligation to disclose information, which will increase the protections for that 3:32am caller.

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Here’s an interesting thought for you. I have had a few calls in the middle of the night where I thought I was being set up. The most memorable was a caller that told me that he and his friends wanted to start a grow operation, and wanted me to advise them on how to do it so they wouldn’t get caught. Now, none of us would ever entertain becoming a co-conspirator in a drug ring by entertaining that issue. But, with the persistence with which the caller was asking questions, I became highly suspicious that it may have been a controlled call. So, I took his name, told him not to commit ANY crimes, and told him never to call me again as long as he lived. Then I hung up on him.

Am I paranoid? Has anyone been following the prosecution of Ben Keuhne? Has anyone read about defense attorneys being prosecuted for money laundering? So, the answer is, no, I am not paranoid, but I do know what some law enforcement officers and prosecutors are capable of doing to defense attorneys. I always ask callers if anyone else on the phone with them, but that is just me. . .

The moral of the story is to be very careful on the phones, especially when you are half asleep (or are waking up after a night on the town and still a little tipsy – you all know who you are!). Do not say something that you do not want played on a tape or repeated by a cop. I don’t know why I feel obliged to mention that, but I do.

My suggestions are not the gospel, and are mentioned so that you can think about them in advance of the 3:32am call. So, go back to sleep, and as the sergeant always said on Hillstreet Blues, “let’s be careful out there.”

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Joe Bodiford is a Board Certified Criminal Trial Lawyer in Tampa. He is the past-president of the Hillsborough County Association of Criminal Defense Lawyers.

Special thanks to Florida Bar ethics attorney Joy Bruner for her input on this article, and to my paralegal Steve Holler for his contribution to the research.

This article is dedicated to memory of attorneys Manuel “Manny” Machin and Marcelino “Bubba” Huerta III, and also to our colleague and friend Victor Pellegrino, and to the hard work of those fine defense attorneys. “If I have seen further it is by standing on the shoulders of giants.” Isaac Newton, letter to Robert Hooke, 1676.

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