Being arrested and charged with a criminal offence is a significant intrusion into the sanctity of one’s life. The arrest creates anxiety and uncertainty about what the next steps are, who should be contacted or what steps should be taken. Selecting the right lawyer will invariably ease much of the anxiety. The right lawyer or firm will guide the accused person through the difficult process and avoid classic pitfalls made by inexperienced counsel or people who unwisely choose to represent themselves.
1) Make sure they’re actually a lawyer
Many paralegal firms exist that purport to be lawyers or “consultants”. They usually contract out the work only a lawyer can perform. Be clear who the lawyer is, what legal entity you’re actually hiring and make sure it is the lawyer or firm directly.
2) Choose a lawyer who devotes a significant amount of their practice to criminal law
A license to practice law in the province of Ontario allows a lawyer to legitimately practice any area they want. This permission is given with a qualification: the lawyer must be competent in that area or be able to become competent in a timely fashion. The reality is that many lawyers will practice in many areas of law and have passing knowledge of each area but not be excellent in any one area. Choose a lawyer who devotes at least 50% of their practice to criminal law. Many criminal lawyers practice exclusively in criminal law, which is ideal.
3) Determine what kind of lawyer/firm you want
Lawyers range in age, experience, and cost. As might be expected, you usually get what you pay for. However, simply because a lawyer is experienced does not mean they will be a good fit for you or your case. Sometimes, a younger lawyer will be more available, more patient, more affordable, and more determined to prove themselves. Try to find a lawyer who you feel comfortable with and who will work for you. Simply because a lawyer demands a high retainer does not necessarily mean they will work hard.
Hiring a firm of lawyers offers a potential perceptual pitfall. Sometimes a client feels they are hiring a senior lawyer in the firm when in actuality a junior lawyer is delegated the client’s case. There is nothing suspicious about this practice. Just be sure to clarify which lawyer is going to have primary carriage of your matter.
4) Lawyers who accept Legal Aid
Many lawyers purport to not accept legal aid certificates for cases because it provides a certain amount of perceived prestige. Legal aid is a system whereby legal fees are paid by the government of Ontario. Legal aid help is becomingly increasingly difficult to obtain and is generally reserved for those individuals who are facing jail time and are on some form of low income assistance. However, many people who are charged with criminal offences qualify for legal aid.
The reality is that most lawyers accept legal aid for the right client and case. In Ontario, the legal aid system is largely a public/private partnership where private lawyers receive payment from public monies. It is not a true public defender system. Many fine lawyers are willing to accept legal aid under the right circumstances.
In the end, your decision about what lawyer to hire should not be based on that lawyer’s acceptance or non-acceptance of legal aid. If you qualify for legal aid, speak to the lawyer you have in mind and ask them if they would consider taking your case on a legal aid certificate.
5) Duty Counsel
Legal Aid Ontario recognizes that many people will arrive at court without a lawyer. They hire and staff a small office of employee lawyers who are able to assist the self-represented person or the person recently charged who is not sure if they will hire a lawyer. While duty counsel lawyers provide a good service, they are not actually representing the client in the strict sense. They provide cursory legal advice about a client’s options. They are extremely busy and are often only able to assist for a couple of minutes. They simply do not have time to explore the availability of defences you might have.
If you want to have the comfort of knowing that your legal representative has researched your case thoroughly and provided exhaustive legal advice then you should not rely on duty counsel lawyers.
6) Guarantees
There are many types of guarantees that a lawyer may offer. Some are legitimate. Some are not. Procedural guarantees should be offered by the lawyer. Details like the lawyer’s billing practices (whether block fee or hourly rate), their willingness to meet with you or take your phone calls, their commitment to work diligently on your case are all examples of bona fide assurances that a lawyer may (and should) make to a client.
Substantive guarantees are almost always not legitimate. Unfortunately, these are the very types of guarantees that people crave. The legal outcome of the case (guilty or not guilty) and the sentence (if any) for the offence are all beyond the lawyer’s absolute control. This is because many factors determine a legal result in criminal law besides the lawyer’s ability: the judge (or jury), the witnesses, the manner in which the prosecution is run etc. A lawyer may certainly advise of one’s chances (e.g. “we have a strong case but…” or “you are not likely to be successful if you go to trial”) but reducing success to hard percentages is difficult if not impossible.
If a lawyer is offering certainty of a specific result, then exercise caution before committing to any professional relationship. Seek a second opinion in these instances.
7) Sub-specialties
While it may seem logical to expect that a lawyer who knows your specific charge or has dealt with a similar case before will be a better fit for you, the reality is that most criminal lawyers are comfortable and willing to handle any criminal matter because the process is identical.
Sub-specialization is exceedingly uncommon. Some lawyers will not accept certain types of cases (e.g. murder or offences against children) because they have a preference not to deal with the subject matter.
When selecting a lawyer, do not expect them to have dealt with a case with your exact charge or your precise factual circumstances. Every case is unique. You should ask whether the lawyer feels comfortable in that area, and whether they have dealt with cases like yours generally. Having had a similar case before should not be the only consideration either. Simply because a lawyer has dealt with a case in the last few years does not mean that they will not have to re-learn the subtle nuances of the law in that particular area. The law evolves and the lawyer will have to satisfy themselves that their understanding is current.
Some lawyers become certified by the Law Society of Upper Canada as a specialist in criminal law. This can be a reliable indicator of their abilities. However, the specialist designation is not that common. Many admirable criminal defence lawyers forego this credential.
8) Professional Memberships
Be cautious about placing too much emphasis on the lawyer’s professional memberships. Every lawyer licensed to practice law in Ontario must be a member in good standing with the Law Society of Upper Canada. This entity regulates the practice of law in Ontario and reviews a lawyer’s conduct, ongoing legal education, practice management (record keeping), and ensures they carry professional insurance. There is no distinction to being a member of the Law Society of Upper Canada beyond having the right to practice law.
Local Law Associations are an important part of the legal community. Membership in one of the organizations can be an indicator of the lawyer’s commitment to fostering a strong legal community but does not necessarily speak to their commitment to your case or criminal law.
A reliable indicator that you have the right criminal defence lawyer is their membership in criminal-specific lawyer associations. In Ottawa, the Defence Counsel Association of Ottawa (DCAO) has emerged as a strong voice in the preservation of client’s rights and is a key stakeholder in the criminal judicial system. A lawyer’s membership in this organization can be an indicator of their commitment to criminal law and their willingness to work collaboratively with other criminal lawyers to ensure the highest quality of criminal defence representation.
9) Legal Writing
A large portion of criminal law is the drafting of motion materials and written legal argument. A scholarly approach to the defence can make the difference between success and the alternative. If you have not had an opportunity to review any of the lawyer’s written articles, ask to see what they have written. Ask them if their articles have ever been published.
10) Commitment to Thorough Preparation
The most important of all qualities is a dedication to ruthless preparation. Many successful legal outcomes are achieved from a defence lawyer knowing the case thoroughly and being able to raise a reasonable doubt through exposing inconsistencies that are buried in voluminous material. You want to know that your lawyer of choice is willing to dedicate the time and effort to familiarize themselves with every aspect of your case (both factual and legal).
Lawyers are unlikely to admit they do not place much emphasis on preparation. Therefore you cannot simply ask them. Look for other indicators that communicate their dedication to their clients (e.g. continuing legal education, scholarly articles, service – willingness to make themselves available, take phone calls) and their dedication to themselves (personal appearance and demeanour, office appearance, insistence on compensation).
Choosing a lawyer can be a daunting task. When deciding on the right criminal defence lawyer for your case, utilize these tools in analyzing your lawyer to ensure the best possible fit. Ask questions. It might be one of the most important decisions you will ever make.
