White-Collar Crime

Making the Transition -- The Final Chapter

Becoming a defense lawyer means defending a person, not defending a defendant.

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Defense work requires climbing into the foxhole.

Defense work requires climbing Into the foxhole.

Getting fired sucks.

But like many things that suck — are you listening, millennials? — it can also teach you a hell of a lot.

For the last two weeks, I’ve been writing about what it’s like to make the Transition — from being a prosecutor (jail is good!) to being a defense attorney (it is very bizarre that we lock non-dangerous people in cages as punishment!). I’ve enjoyed the Transition immensely, and I often can’t believe how fortunate I am to do what I do — to get to represent individuals in white-collar crime cases. (And have I mentioned we’re hiring?)

It’s a real honor to do that — to have people trust you with their lives and with their freedom. Pausing to remember that from time to time is important. This is heady stuff.

But it took getting fired for me to figure out how to do it right.

The case came in when I was fairly new to the firm. The client had been charged with a crime — I am being purposefully vague here because I value my bar license — and, to my trained prosecutor’s eye, there was an overwhelming amount of evidence that he’d done exactly what the government was accusing him of.

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Plus, the plea offer was quite generous. Sure, it would include some jail time, but much less than he would get if he took the case to trial and lost.

So I thought my job would be relatively straightforward: explain the law to my client (so he understood what he was being charged with), show him the enormous amount of evidence that proved that he’d violated that law (so he’d remember what he did), and walk him through the Sentencing Guidelines so he’d see how much better off he’d be if he pled guilty rather than going to trial.

It’s just like a reverse proffer, I thought. Politely but firmly explain to the guy why he’s guilty and why he should accept the government’s generous offer. I’ve got this!

I did not have this.

Here’s what I didn’t realize: clients are not defendants.

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Defendants are people who are accused of committing crimes. I’m sure all of them have a back story, but that’s not really the point, now is it? The point isn’t who they are — it’s what they did. So your job as a prosecutor is to play by the rules, find all of the evidence you can, and prove that.

Clients are people who hire you to get them through what is likely the worst experience of their lives. They want to feel like you’re in the foxhole with them, feeling their pain, and fighting for them like you’d fight for your family or your best friend. Who they are, when you have a client, is every bit as important as what they did.

Criminal defense work is uniquely personal in that way. You’re not fighting with the other side about money; you’re fighting about someone’s liberty. About whether they’ll be labeled a criminal, or a convicted felon who can’t even vote.

It can take a while to learn that when you’re making the Transition.

And initially, I failed at it. When I sat down with the client to go over the evidence and why accepting the plea would be a good idea, I treated that meeting like a reverse proffer session. I didn’t mean to, but that’s how I was trained. The meeting wasn’t about who he was, or why he did what he did; it was just about what the government could prove. I was treating him like a defendant instead of a client.

So I walked him through the evidence and explained to him why he was guilty. Every time he objected, I argued with him — no, that’s not true, and here’s the evidence the government will use to show that. All I was trying to do was help him — help him understand that the evidence really was overwhelming, and that if he didn’t take the plea, his life was going to be much, much worse.

A few weeks later, he fired me.

At the time, I didn’t understand why. I think I chalked it up to his being too stubborn to listen to me. And that may have been part of it; some people do have a hard time admitting to what they’re done. (They even lie to their own lawyers — which is something I don’t think a lot of prosecutors realize.)

But as time went on, I realize how I’d failed. I hadn’t talked to him enough about who he was and how he got himself in this position. I hadn’t explained to him enough how we could use that at sentencing to get even more leniency than the government was offering.

And I hadn’t talked about the evidence the right way.

When you’re talking to a client, not a defendant, it’s important to earn their trust. That can take time. So when your client tells you something that is absolutely, positively contradicted by the evidence or the law, you can’t do what you’d do in a reverse-proffer session and say, “No, that’s not right — see this document here?”

You have to do it more like this: “I hear you. I understand exactly where you’re coming from, and I think that’s a really interesting argument. I want you to take a look at this document here, because I think that’s the one the government would point to if we made that argument. How do you think we should respond if they do that?”

If you do this enough, the client will usually understand where the case is headed — but they’ll do it on their own, in their own time, and won’t feel like you’re playing second prosecutor. They’ll feel like you’re on their side.

That was a difficult lesson for me to learn, but I’m glad that I learned it early on. It turns out that the foxhole, for all of its challenges, is a deeply rewarding place to be. And I’ve never once wished I hadn’t made the Transition.

Justin Dillon is a partner at KaiserDillon PLLC in Washington, DC, where he focuses on white-collar criminal defense and campus disciplinary matters. Before joining the firm, he worked as an Assistant United States Attorney in Washington, DC, and at the Civil Rights Division of the Justice Department. His email is jdillon@kaiserdillon.com.

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