• Loren Rhoton

Hiring a Post Conviction Lawyer

Hiring a lawyer to assist with your case is a major decision that must be taken very seriously. But, just hiring any attorney to help with a post conviction case does not mean that the case will be handled properly. When hiring counsel, you should go into the transaction informed. Make sure that you are hiring somebody who is experienced with post conviction cases (generally), and, further, with handling cases similar to yours. This article will give some pointers on how to find and hire an attorney that is right for you.


I always advise that courts take cases more seriously when presented by licensed attorneys, as opposed to cases handled pro se by the defendant. What kind of attorney should you seek? Post conviction cases are specialized and have their own unique procedural and legal requirements. Therefore, you will want counsel who has handled numerous post conviction cases. A criminal defense attorney is great for trial, but will not necessarily be familiar with the pleading requirements, procedural deadlines, and legal issues that are cognizable in a post conviction case. An appellate attorney, even one who handles criminal appeals, still might not be properly informed on post conviction issues. You want an attorney who knows the rules, legal authority, pleading requirements, periods of limitations, and other matters specific to post conviction cases. Inexperienced counsel may miss deadlines or fail to recognize viable issues, and ultimately foul up a case to the extent that it cannot be salvaged.


To determine if an attorney is sufficiently knowledgeable to handle your case, ask them: How long have they been practicing law?; how many post conviction cases have they handled?; What percentage of their caseload consists of post conviction cases?; In what courts are they licensed to practice? Also, ask the attorney for his written qualifications so you can ascertain the extent of his experience. Further, you should ask for a list of case citations/opinions from cases that he has handled. That way you can take a look at the issues that the attorney has dealt with and get an idea of how involved he is in post conviction law. A list of representative cases will not tell you everything you need to know. But, if there are not many legal opinions for you to review, then you will know that the attorney hasn’t handled many cases.


Furthermore, the Internet is helpful in determining if an attorney is going to have the knowledge and experience necessary for your case. Have your family seek out information on the attorney online. Does the attorney have a website? If so, how does he present his practice on the site? Does he claim to be a post conviction attorney? Or, does he do a little bit of everything? The more widespread the areas of practice (i.e., family law, criminal, bankruptcy, etc.) the less likely he is to really have in depth knowledge and experience with post conviction matters.


Also, there are often red flags to watch out for when considering counsel. Does the attorney have a physical office address at which you or your family can meet with him? If an attorney only gives a P.O. box as an address, chances are good he will be difficult to keep in touch with. An attorney without a physical office typically does not have staff to answer phones and handle other administrative tasks to make him more accessible. Further, no physical address means it is harder for your family to meet with and make personal contact with your attorney.


Also, consider how you learned of the attorney. Did someone who used the attorney recommend him? If so, were they satisfied with the representation? Have you heard of the attorney? What is his reputation? Or, were you referred to the attorney by someone who holds himself out as a paralegal? As of recently, I have noticed a number of unethical persons who promote themselves as post conviction paralegals and essentially engage in the unlicensed practice of law. These people charge a fee for their paralegal services. Sometimes these paralegals will refer cases to discount attorneys with the promise of lower attorney fees because the paralegal will be doing most of the work. (See below about problems with “discount attorneys”). On more occasions than I can remember, I have spoken with people who wasted money on such “paralegals” only to find that nothing worthwhile was actually done on their case. One must be aware that there are no legal licensing requirements for somebody who holds himself out as a paralegal, and that such a designation is no indication of legal knowledge or skill. Beware, paralegals are not attorneys and have no business advising you on whether you have viable legal claims; any such action is the unlicensed practice of law and should raise a red flag. From what I have seen, most of the “paralegals” who market themselves to prisoners have been unreliable at best, and often are fraudulently taking people’s money and providing false hopes.


Fees are another issue to take into account in hiring counsel. Lawyers can be expensive, so you will want to at least get an estimate of what the overall fees and costs will be on your case. I’ve found that hourly fees are typically the fairest arrangement for all parties. My office charges hourly for any work done and gives the client itemized statements so that the client can: (1) see all work that has been done on his behalf; and, (2) question any charges or actions taken. By working under such an arrangement, my office gets paid for the work that is performed, and the client only pays for what is done. It is a fair transaction for both parties. On the other hand, you need to beware of “discount lawyers” with flat fee arrangements for post conviction cases. Sometimes attorneys will take on a post conviction case for a flat fee that is attractive to the client because it is significantly lower than the fee arrangements other attorneys are offering. Discount lawyers typically will give a low fee because they otherwise would not be able to get clients on the basis of their skills or reputation. Such discount fees frequently turn out to be problematic because the attorney is only willing to do so much work for such low compensation. These arrangements often lead to the attorney cutting corners or outright not doing necessary work on a case. While a concern about finances is completely understandable, I always warn about trying to seek a bargain lawyer. As the saying goes, you get what you pay for. And if you are paying what seems like a surprising low fee, then don’t be surprised by the disappointing results you will likely receive.


Also, it is important to check the attorney’s discipline record with the Florida Bar. A history of disciplinary problems for an attorney can be a red flag. If an attorney has been found to be in violation of the Florida Bar rules, or has been suspended or reprimanded for misconduct, such disciplinary actions are public record and can be discovered by contacting the Florida Bar or searching the attorney’s name on the Florida Bar’s website, Floridabar.org.


Also worthy of consideration is how the attorney responds to you and/or your family when you inquire about legal representation. Does the attorney return calls? Does the attorney answer your questions? If you wrote to the attorney, did he respond to your inquiry? If so, how long did it take for you to receive a response? If the attorney is not responsive to you and/or your family before he is ever retained, you can expect the level of responsiveness to be even worse once he is on your case.


Finally, and importantly, go with your gut. Talk to prospective counsel and ask questions before you commit. Do you get the feeling that your attorney is competent? Does he seem to know what he is talking about? Does he sufficiently consider and answer your questions and concerns? If your instincts tell you that the attorney is not going to do a good job, then do not get suckered in by a discounted fee. Make sure that you are comfortable with who you are hiring. You are going to be the one who has to live with the consequences, so make sure you are retaining someone whom you believe can and will do the job for you.

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