Thursday, October 15, 2009

Do attorneys act without consulting clients?

How often do attorneys take matters into their own hands and, by doing so, create untold grief for their own clients?

A friend of mine is dealing with multiple cases of accusations of Disorderly Conduct in various McHenry County courts. In four or five of the cases, when they finally came to trial, the accuser didn't show up and the cases were dismissed.

This friend had a public defender earlier in the year. Without her knowledge or consent he (the defendant's own attorney) submitted a motion to the court, asking for a psychological evaluation. In other words, was she fit to appear in court and testify in her own behalf? On the date that the motion was to be heard, June 1, the attorney told his client that she did not need to be in court. And so she didn't (even though "Must Appear" is in the court record).

The prosecutor didn't object, and the judge ordered the evaluation. Unbeknownst to the judge or even to her own attorney, the attorney had requested the court to order the evaluation to be done by a psychologist against whom this woman had filed a complaint about five years ago. Her complaint had been upheld by the Illinois Department of Professional Regulation (IDPR).

Now, do you think the judge would have approved that psychologist, had he known about that complaint and its resolution???

So, she got a new public defender, and he didn't fight the order for the evaluation or tell the judge that the information in the original motion for the evaluation was not accurate. Instead, he just asked for a different psychologist. And on whom did he and the prosecutor agree? A psychologist who is on the staff at the same hospital where the accuser is employed! (Just imagine a crafty employee snooping into confidential records that she has no business reading; could it happen?)

How did my friend find out about this new psychologist? Because I looked up the motion and called her. The judge approved the motion for the new evaluator on September 29 and, as of yesterday, her attorney hadn't even informed her.

So now her attorney and the prosecutor will have to settle on yet another psychologist.

There is no need for an evaluation. The judge never would have approved the first motion, had he received accurate information from the first public defender. But the order still stands, unchallenged.

Here's what will happen. She will go and meet with whoever is finally decided on as an evaluator. Within five minutes he'll realize she is fully capable - in fact, more than capable - of contributing to her defense. His evaluation will be "no problems."

And then a court date will finally be scheduled for a jury trial on charges that are already 18 months old. And then, on the court date, the accuser will, as in the past, not show up and the three cases will be nolle prossed.

Care to put any money on this? (I jest, of course, to avoid charges of soliciting for gambling.)


Whitmore2 said...

To answer the question posed in your title, it has been my experience that YES, attorneys do act without consulting their clients. As I said, speaking to my own experience, I would often be unaware of what my attorney was doing with regards to my case until after the court hearing. (This took nearly a year to complete.) Afterward, I would be briefed on the status of the case and what my "options" were. I say "options", because I had very limited choices, logically speaking, to make during the course of the event.

Another Lawyer said...

Sigh, ok first let's put the apples with the apples, and the oranges with the oranges. Should an attorney make motions without the consent of his or her client, answer: never, if it concerns how to proceed with the case; ALWAYS if it concerns making a motion for a fitness hearing (where appropriate). An attorney owes both a duty to his client and the court to make a motion for a fitness hearing (if appropriate) regardless and very often in spite of his client's "position." It's not that hard to understand, if there is an issue of fitness, (and you are right) your client will NEVER agree. So your answer would be never move the court for a fitness evaluation? Huh?

Gus said...

I would like to suggest that PERHAPS might be preferable to ALWAYS.

Let's take a situation where a lawyer hasn't really gotten acquainted with his client (maybe one 5-minute conversation), doesn't know the facts of the case, doesn't know the history of the parties, and then that lawyer moves for a fitness evaluation without discussion with the client (and the client isn't nuts).

Of course, there might be very clear cases when the defense attorney recognizes that impairment is very likely, and then believes that a fitness evaluation would be appropriate; e.g., the guy who set fire to the woman employee at South Hospital

Thanks for your insightful comment.