I don't mind these consultations, as I charge for them and these nice folks are on the clock as they tell me what they want to tell me. But I expect to provide value to everyone who pays me, and these folks are no different. They've come to me for a reason, and part of my responsibility as a lawyer is to elicit information that enables me to ascertain that reason and address it. But I can't beat them into submission. Well, maybe I can, but it's really not a good practice.
One of the foremost outcomes people want when meeting with a lawyer is to be told they will be fine, they can go home afterward and sleep soundly that night, unafraid of the terrible things that kept them awake the night before. And some lawyers provide this, "advising" that all will be well and they have nothing to be afraid of. They say they did nothing, and so they have nothing to fear.
Of course, this is almost always a lie. The other day, Mark Herrmann asked why lawyers are turned into liars. As some of the commenters at Above the Law suggested (in a shockingly relevant reaction to the post), no one forces lawyers to lie. Rather, it's a matter of convenience and avoidance. Lawyers speak the words that are most advantageous to their position and don't speak the words that are going to get a judge angry with them or compel a client to run for the door. The problem is that truth isn't what people necessarily want to hear, and lawyers (like pretty much everyone else) prefer to give people what they want to the extent it allows lawyers to get what they want from them.
Clients don't want to know that they are in trouble. They don't want to hear that they are facing certain choices, none of them good. Who would? But telling them what they want to hear doesn't change what they're facing, the choices available to them. In most instances, whispering sweet words in their ears deprives them of the opportunity to prepare for what they are about to face. In other words, it often makes the situation worse.
It may well be that they did nothing wrong. It may be that they did nothing from from their unique perspective. It may also be that they did wrong, but refuse to acknowledge it. Regardless of which it may be, or whether it's some other variation on a theme, a person staring down the barrel of a gun called "prosecution" has a problem, whether they deserve it or not. Closing your eyes doesn't make the gun go away, it just prevents you from seeing it.
While the phenomenon of denial happens with people regardless of the crimes involved, there is a huge difference between the person arrested, as is usually the case for someone charged with a street crime, and someone who faces the possibility of prosecution, as happens with "white collar" crime. The latter problem is exacerbated by the pervasive belief that they're not "criminals," they didn't "murder anyone," and therefore it's absurd that anyone should be investigating them or entertaining their prosecution. "Why don't they go out and catch the real criminals?!?"
I've long despised the characterization "white collar crime," as it perpetuates the misguided belief that it's just a big misunderstanding to be worked out like gentlemen over tea at the United States Attorney's office. A prosecution for "white collar crime" is just as brutal as any other crime, except it usually involves a lot more paper. A sentence for a "white collar crime" is just as horrible as a sentence for any other crime, except it's more likely to be served in a camp than supermax, though you can't always count on that either. And few people who perceive themselves as non-criminals are well suited to any incarceration, regardless of ambience.
The point is that if you've been given the opportunity to prepare in advance for the pending storm, don't squander it by embracing denial. You've been handed a gift. Granted, not something that was on your birthday list, but a gift nonetheless. You have the ability to make choices, even if the options suck, and can take action to afford yourself the best possible chance to prevail. Trust me when I tell you that guys detained pending trial are at an extreme disadvantage. You are free. You can do things to help yourself. You can prepare.
To waste this opportunity is a crime. The relevant inquiry isn't whether you did anything, but what can you do under the circumstances to help yourself. If you are mired in denial, you won't do anything. Yet the gun is still pointed at your head. Seize the opportunity when it's available. Embrace your reality and deal with it. Nothing else is going to help you, and when you get the knock on the door in the wee hours of the morning, there will be no comfort in believing that you did nothing wrong.
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Source: http://blog.simplejustice.us/2012/09/22/courting-disaster.aspx?ref=rss
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